Mandated to uphold the trial court's order appointing an Advocate Commissioner to measure suit property and count trees in a title dispute. The Madras High Court rejected the revision petitioners' maintainability challenge and evidence rules objection.
Civil Revision Petition dismissed; interim order vacated; connected petitions closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.06.2017
(Reserved on 08.06.2017)
CORAM :
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
CRP(PD)(MD)No.1380 of 2014 and
M.P(MD)No.1 of 2014 and CMP(MD)No.4738 of 2017
1)Sellamuthu
2)Aruputhanani
3)Devanbu
5)Steephan
6)Pushpalatha
7)Jeyamani
8)Karunanithi
9)Pappathi
10)Thirumoorthi
... Petitioners
vs.
D.Duraisamy ... Respondent
Petition filed under Article 227 of the Constitution of India, against the Order and decreetal order dated 28.02.2014 passed in I.A.No.1294 of 2013 in O.S.No.74 of 2011 by the Additional District Munsif Court, Karur.
For Petitioners : Mr.M.Karthikeya Venkitachalapathy For Respondent : Mr.V.Sitharanjandas
ORDER
This revision petition is filed by the defendants aggrieved by the order allowing the application filed by the plaintiff to appoint Advocate Commissioner to measure the suit property and note down its physical features and count the number of trees found in the suit land.
2.The case of the plaintiff is that the suit properties were purchased by him under 3 sale deeds and he is in possession and enjoyment of it. The mutation of revenue record has already been effected. While so, the defendants along with their henchman have https://hcservices.ecourts.gov.in/hcservices/ removed the boundary stones and prevented him from fencing his property. Therefore, to restrain them from interfering his
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peaceful possession and enjoyment, the plaintiff has filed suit for permanent injunction.
3.Pending suit, he filed an application to appoint Advocate Commissioner to note down the physical feature, but could not pursue it due to ill-health hence, it was dismissed. He revived the prayer by filing fresh application for appointment of Advocate Commissioner to note down the physical feature, measure the property with the help of surveyor and count the number of trees standing in the suit property. Some of the defendants have instituted a representative suit in O.S.No.214/2009 for declaration of title in respect of larger extent of land inclusive of the suit property without any basic document.
4.While the Trial Court has thought fit necessary to appoint an Advocate Commissioner to note down the physical feature as prayed, the revision petitioners who are aggrieved by the said order have filed this revision.
5.According to the revision petitioners, the earlier application for appointment of Advocate Commissioner was dismissed. So, the second application for the same relief is not maintainable. Further, in a suit for permanent injunction, to find out who is in possession, it has to be proved through witnesses and document. Evidence cannot be collected through the Advocate Commissioner.
6.Per contra, learned counsel for the respondent herein submits the necessity to file the application to appoint an Advocate Commissioner arose due to the suit filed by the revision petitioners claiming title in respect of vast area of land in the village including his patta land which is subject matter of his suit. Therefore, it is just and necessary to inspect the suit property and measure the same through a surveyor.
7.Heard both sides.
8.It is an admitted fact that a suit in O.S.No.214/2009 has been filed for vast area of land for declaring title in favour of a particular community and the same is pending. The property in the present suit O.S.No.74/11 is included in the previous suit. The respondent in this revision petition is arrayed as 118th defendant in the previous suit O.S.No.214/2009.
9.The prayer in the application is to appoint Advocate Commissioner to note down the physical feature, measure the suit property with the help of Surveyor and to count trees found in the suit property. Such an endeavour is necessary when there is allegation of forcible trespass and encroachment and a counter https://hcservices.ecourts.gov.in/hcservices/ claim in a parallel suit claiming title over the suit property. This is not an attempt to collect evidence but to place evidence
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before the Court already existing on the filed.
10.The specific case of the respondent herein is that he had purchased the suit property through 3 sale deeds and patta stands in his name. He is in possession and enjoyment of the same. While the respondent contends that the revision petitioners are aggressors trying to encroach upon his patta land, the contrary claim of the revision petitioners is that a large extent of land including the suit property belongs to their community. In such circumstances, it is appropriate to identify the land of the respondent/plaintiff as per the document by measuring it with the help of surveyor. Therefore, the order appointing an Advocate Commissioner for the said purpose is upheld. The plea of the revision petitioners that the second petition for same relief is not maintainable, is factually and legally not sustainable since earlier application was not dismissed on merits but for non prosecution.
11.Therefore, this Court finds no merit in this revision petition. Hence, this Civil Revision Petition is dismissed. No costs. The interim order already granted is vacated. Consequently, connected miscellaneous petitions are closed.
Sd/-
Assistant Registrar(CS-III)
/True copy/
Sub Assistant Registrar
To
The Additional District Munsif, Karur.
+1 cc to Mr.V.Sitharanjandas , Advocate in SR.No. 59638 +1 cc to Mr.K.Bala subramani , Advocate in SR.No. 59809
nbi
AE/MR/SAR3/22.06.2017/3P/4C
order made in CRP(PD)(MD)No.1380 of 2014 12.06.2017
2 issues framed by the court
Whether a second application to appoint an Advocate Commissioner after dismissal for non-prosecution is maintainable.
Whether collecting physical measurements and counting trees via an Advocate Commissioner constitutes improper evidence collection in a suit for permanent injunction.
Sellamuthu
Aruputhanani
Devanbu
Silambarasi
Steephan
Pushpalatha
Dr.Justice G.Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
