Civil Revision Petition against dismissal of an application under Order 26 Rule 9/Section 151 CPC seeking appointment of an Advocate Commissioner to measure disputed land. The High Court held the application was rightly dismissed as the extent is provable by documents.
The Civil Revision Petition was dismissed and the impugned order was confirmed.
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.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.02.2019
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
CRP.No.346 of 2019 and C.M.P.No.2472 of 219
1.S.Perumal
2.S.Munusamy
3.S.Lakshmi
4.S.Ramasamy
5.T.Santhi
6.T.Tamilarasi
7.P.Janaki
8.P.Jeeva
9.P.Deepa ..Petitioners/Plaintiffs/Petitioners
Vs
1.Dr.V.Manonmani
2.V.Vimal ..Respondents/Defendants/Respondents
Prayer: - Civil Revision Petition filed under Article 227 of the Constitution of India to allow the civil revision petition and set aside the order and decree passed in I.A.No.71 of 2018 in O.S.No.73 of 2018 dated 24.04.2018 on the file of District Munsiff cum Judicial Magistrate Court, Valappady.
For Petitioner : Mr.S.P.Yuaraj
The above Civil Revision Petition is filed challenging the order of the learned District Munsif cum Judicial Magistrate, Valappady, in I.A.No.71 of 2018 in O.S.No.73 of 2018 in and by which, the learned District Munsif has dismissed the application filed by the petitioners under the provision of Order 26 Rule 9 r/w section 151 of CPC. The petitioners/plaintiffs had filed a suit for the recovery of possession against the defendants.
2 It is the case of the plaintiff that the land originally measuring an extent of 2.76 cents, Minnamapalli Village, Valappady Taluk, Salem District, belongs to one
Krishnan Samban and thereafter, on his death, his three sons viz., Munian, Dhasan and Perumal had partitioned the property and the suit property, was allotted to the share of Munian. Munian died intestate leaving behind his only son namely Sellappan. Sellappan sold an extent of 1.23 cents of land to one Thilagam under registered Sale Deed dated 12.07.1974 and retained for himself an extent of 31 cents. The plaintiffs are the children of the Sellappan. It is their case that the property which was sold by the said Sellappan was exchanged by the said Thilagam with one Vivekanandham and on the death of Vivekanandham, his wife Dr.V.Manonmani, the first defendant and son, the second defendant succeeded to the estate. The plaintiff case was that the defendants had encroached into an entire extent of 1.53 cents over and above the extent sold to them. Therefore, pending suit, the petitioners have taken out the interlocutory application seeking the permission for appointment of an Advocate Commissioner to inspect the suit property and measure the same and file the report with plan in respect of the extent of lands admeasuring 1.23 acres and 31 cents respectively. The petition was opposed by the respondents and ultimately, it was dismissed by the learned Judge stating that this is a fact that can be proved by documents, challenging which order the above Civil Revision Petition has been filed.
3 As observed by the learned District Munsif, the issue as to whether the property that was sold to the defendants was only 1.23 cents or not, is an issue for consideration and the same is to be proved by the documents and there is no necessity to appoint the Advocate Commissioner. I find no infirmity in the order passed by the learned District Court. This Civil Revision Petition is dismissed and order passed in I.A.No.71 of 2018 in O.S.No.73 of 2018 dated 24.04.2018 stands confirmed. Consequently, connected miscellaneous petition is also dismissed. dua
Sd/Assistant Registrar(CS IV)
//True Copy//
Sub Assistant Registrar
To
The District Munsif cum Judicial Magistrate Court, Valappady.
+1cc to Mr.SP.Yuaraj,Advocate, SR.NO.9447
CRP.No.346 of 2019
Kak(15/03/2019)
2 issues framed by the court
Whether an appointment of an Advocate Commissioner was necessary to inspect and measure the disputed land.
Whether the District Munsif erred in dismissing the application on the ground that the extent can be proved by documents.
1 provisions across 1 enactments
S. Perumal and others
Dr. V. Manonmani and V. Vimal
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
