The High Court dismissed the Civil Revision Petition challenging the appointment of an Advocate Commissioner in a property suit. Holding that identifying boundaries under the exchange deed was necessary, the Court allowed the maintenance of the application.
Petitioner allowed liberty to raise objections before Trial Court following the Commissioner's report.
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.
1 CRP.No.2226 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.09.2022
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No. 2226 of 2019
and
CMP.No.14417 of 2019
Chinnapaiyan .. Petitioner
Versus
Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decretal order dated 13.03.2019 made in I.A.No.815 of 2018 in O.S.No.55 of 2017 on the file of Principal District
Munsif Court, Cheyyar, Thiruvannamalai.
For Petitioner : Mr. P. Mani For Respondents : Mr. K.G. Senthil Kumar
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2 CRP.No.2226 of 2019
ORDER
This Civil Revision Petition has been filed by the petitioner/defendant seeking to set aside the fair and decretal order dated 13.03.2019 made in I.A.No.815 of 2018 in O.S.No.55 of 2017 on the file of Principal District Munsif Court, Cheyyar, Thiruvannamalai.
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3 CRP.No.2226 of 2019
petition by its order dated 13.03.2019. Being aggrieved by the aforesaid order, the defendant/petitioner herein has filed the present Civil Revision Petition to set aside the same.
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4 CRP.No.2226 of 2019
contended that despite the earlier Advocate Commissioner appointed in A.S. No.15 of 2013 could not find the boundaries in the suit properties as per the exchange deed wherein the schedule of property has not been mentioned. But, after fixing the boundaries of the properties belonged to both parties by way of exchange deed, the respondents/plaintiffs have filed I.A No.815 of 2018 in O.S. No.55 of 2017. While the plaintiffs/respondents herein were alloted the suit property and they have right title and interest over the suit schedule property for which purpose only O.S. No.55 of 2017 has been filed seeking for declaration and permanent injunction against the defendant/petitioner herein. It is the duty of the Trial Court to grant a relief to the plaintiffs/respondents herein and resolve the dispute arose between the parties. Therefore, it is necessary to identify and measure the boundaries in the suit property of the petitioner and respondents as per the deed relied by them. Hence, the Court below has rightly allowed the application.
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5 CRP.No.2226 of 2019
7.Having considered the facts and circumstances of the case and submissions of the learned counsel on either side, it is seen that the respondents/plaintiffs filed a suit in O.S.No.55 of 2017 before the Principal District Munsif Court, Cheyyar, Thiruvannamalai, for declaration and permanent injunction against the defendant/petitioner herein. Pending the suit, the plaintiffs/respondents herein filed an I.A.No.815 of 2017 under Order 26, Rule 9 of CPC., to appoint an Advocate Commissioner to inspect the suit property, to note down the physical features of the suit property and to file a report along with sketch. While the suit arose in view of the dispute in the boundaries of the suit properties between both parties, the same can be resolved only by identifying the boundaries of the suit property as per exchange deed. Hence, having considered the interest of both parties, the Trial Court has rightly allowed the application and hence, this Court is not inclined to interfere with the order dated 13.03.2019 passed by the Trial Court. The Advocate Commissioner is hereby directed to measure the properties and fix the boundaries thereon with the help of qualified surveyor as per the exchange deed relied by the petitioner and respondents herein in their presence and file report before the Trial Court accordingly. However, the
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6 CRP.No.2226 of 2019
T.V.THAMILSELVI, J.
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petitioner herein is given liberty to raise all his objection whatever before the Trial Court by filing reply on the fixation of boundaries and report of the
Advocate Commissioner.
disposed of. No Costs. Consequently, connected miscellaneous petition is
closed if any.
28.09.2022
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Index : Yes/No Speaking Order : Yes/No To
C.R.P.No. 2226 of 2019
and CMP.No.14417 of 2019
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2 issues framed by the court
Whether the High Court can interfere with the order appointing an Advocate Commissioner in a suit regarding boundary disputes.
Whether the appointment of an Advocate Commissioner to measure properties and fix boundaries is maintainable in view of the pending suit.
3 provisions across 2 enactments
Chinnapaiyan
Chellan
Chandira
T.V. Thamilselvi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
