Allowed

M.Vinayagam v. M.Govindaraj

Madras HC22 Dec 2020CRP/2486/2018

Case brief

AI extract

What is this about?

The Madras High Court allowed the civil revision petition setting aside the Trial Court order that dismissed an application for appointing a Commissioner. The Court directed the Trial Court to appoint a Commissioner specifically to identify a disputed pathway (Item 4) without exceeding authority to measure other suit properties.

What did the court decide?

The order of the Trial Court dismissing the appointment of Commissioner is set aside. The Trial Court is directed to appoint a Commissioner to identify Item 4 and find if a pathway exists, without mea

M.Vinayagam Vs M.Govindaraj — Civil Procedure and Limitation | Madras HC (2020)

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C.R.P(PD)No. 2486 of 2018 and C.M.P.No. 15242 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 22.12.2020

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

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C.R.P(PD)No. 2486 of 2018
and
C.M.P.No. 15242 of 2018
M.Vinayagam ...Petitioner
Vs.
1.M.Govindaraj
2.P.Thandapani
3.Elumalai
4.P.Gopal ...Respondents

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Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the petition and order dated 07.07.2018 made in I.A.No. 273 of 2017 in O.S.No. 82 of 2017 on the file of the District Munsif, Katpadi, Vellore District.

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For Petitioner : Mr.V.Karthikeyan For Respondents : Mr.T.M.Hariharan for R4 Mr.Ravichandran Sundaresan for R1 to R3

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1/7

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https://www.mhc.tn.gov.in/judis/

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C.R.P(PD)No. 2486 of 2018 and C.M.P.No. 15242 of 2018

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O R D E R

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The plaintiff in O.S.No. 82 of 2017 has come up with this

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revision. Challenge in this revision is to the order dismissing an application

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of the petitioner seeking appointment of Commissioner to measure the

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property with the help of a Taluk Surveyor, Katpadi Tahsildhar, Firka Surveyor and Village Administrative Officer as per the documents filed

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along with the plaint and to fix the boundaries for the suit mentioned properties.

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The suit is one for permanent injunction restraning the

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defendants from preventing the plaintiff to use the suit Item 4 as a pathway to reach his properties in suit Items 1 to 3. The suit is resisted by the defendants contending that the plaintiff is not the owner of the suit Item 1

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and that the suit 4^th Item is not a pathway meant for the plaintiff to reach suit

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items 1 to 3. The claim of the plaintiff that the suit Item 4 in Survey No.796/2 is a pathway and it is a poromboke land is also seriously disputed by the defendants in the written statement. The learned Trial Judge who heard the application for appointment of Commissioner concluded that the 2/7

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https://www.mhc.tn.gov.in/judis/

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C.R.P(PD)No. 2486 of 2018 and C.M.P.No. 15242 of 2018

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plaintiff is fishing for evidence through appointment of Commissioner and dismissed the application.

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I have heard Mr. V.Karthikeyan, learned counsel for the

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petitioner, Mr.T.M.Hariharan, learned counsel for the 4^th respondent and Mr.Ravichandran Sundaresan for R1 to R3.

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Mr.V.Karthikeyan, learned counsel for the petitioner would

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vehemently contend that since the suit is one for permanent injunction with reference to user of a particular property as a pathway and the defendants have denied the existence of the very pathway, the best method of proving existence of the pathway is only by seeking appointment of a Commissioner. Therefore, the Trial Court was not right in dismissing the application.

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Contending contra, Mr.T.M.Hariharan, learned counsel for the

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4^th respondent, drawing my attention to the prayer in the Commissioner

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application, would submit that the object of the application itself is to

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3/7

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https://www.mhc.tn.gov.in/judis/

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C.R.P(PD)No. 2486 of 2018 and C.M.P.No. 15242 of 2018

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identify the property. He would take serious objection to the prayer where the plaintiff seeks measurement of the suit properties including Items 1 to 3 as per his title documents. This, according to Mr.T.M.Hariharan, cannot be allowed and it is an attempt made by the plaintiff to collect evidence to establish his title to Items 1 to 3 in the suit for permanent injunction with

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reference to user of Item 4 as a pathway. I have considered the rival submissions.

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No doubt, the prayer in the Commissioner application is so wide that the plaintiff requires the entire revenue department of Vellore District to come over to the suit property and measure the same, but that by itself cannot be a ground for dismissing application. It is a common knowledge that today counsels are more used to cutting and pasting of prayers. This case is a good illustration of cutting and pasting of prayers in interlocutory applications. Counsels' mistake should not prejudice the party.

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I am therefore of the opinion that the Trial Court was not right

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in strictly looking at the prayer and dismissing the application for

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4/7

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https://www.mhc.tn.gov.in/judis/

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C.R.P(PD)No. 2486 of 2018 and C.M.P.No. 15242 of 2018

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appointment of Commissioner. Hence, this civil revision petition allowed , the order of the Trial Court is set aside. The Trial Court is directed to appoint a Commissioner with a duty to identify Item 4 and find out whether there exists a pathway as described in Item 4 of the suit schedule and file a report. The Commissioner shall not exceed his warant and measure other properties in the process. If he feels necessary, e\t Commissioner can take assistance of the Taluk Surveyor. Consequently, connected miscellaneous petition is closed. No costs. 22.12.2020 kkn Internet:Yes/No Index:Yes/No Speaking / Non-speaking. To: The District Munsif Court, Katpadi, Vellore District.

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https://www.mhc.tn.gov.in/judis/

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C.R.P(PD)No. 2486 of 2018 and C.M.P.No. 15242 of 2018

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R.SUBRAMANIAN, J.
KKN
C.R.P(PD)No. 2486 of 2018
and
C.M.P.No. 15242 of 2018

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6/7

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https://www.mhc.tn.gov.in/judis/

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C.R.P(PD)No. 2486 of 2018 and C.M.P.No. 15242 of 2018

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22.12.2020

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https://www.mhc.tn.gov.in/judis/

M.Vinayagam v. M.Govindaraj

Case brief

What is this about?

What did the court decide?

M.Vinayagam v. M.Govindaraj

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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