Dismissed

Alagarsamy, v. Mariappan

Madras HC16 Jun 2023CRP(MD)/783/2022

Case brief

AI extract

What is this about?

The Madurai Bench of the Madras High Court dismissed a Civil Revision Petition seeking to set aside an order rejecting a request for a second Advocate Commissioner. The Court held that since the trial court rejected the application without considering the petitioner's objection regarding the precision of the first report, and the petitioner had not questioned the measurement earlier, no new Commis

What did the court decide?

The civil revision petition is dismissed. No costs. The connected miscellaneous petition is closed.

Alagarsamy, Vs Mariappan — Property and Title | Madras HC (2023)

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C.R.P.(MD)No.783 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Date of Reserving the Judgment Date of Pronouncing the Judgment 19.04.2023 16.06.2023

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CORAM:

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THE HONOURABLE MR.JUSTICE C.SARAVANAN

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C.R.P.(MD)No.783 of 2022 and

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C.M.P.(MD)No.3171 of 2022

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Alagarsamy, S/o.Perumal

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... Petitioner

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vs.

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Mariappan, S/o.Perumal

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... Respondent

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Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order dated 04.01.2022, passed in I.A.No.555 of 2018 in O.S.No.142 of 2016, on the file of the District Munsif Court, Sivakasi, by allowing this Civil Revision Petition.

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For Petitioner : Ms.P.Jessi Jeeva Priya For Respondent : Mr.AR.Jeyarhuthran

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ORDER

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This Civil Revision Petition has been filed by the petitioner to set aside

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the fair and decreetal order passed by the District Munsif Court, Sivakasi, in I.A. No. 555 of 2018 in O.S. No. 142 of 2016, dated 04.01.2022.

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

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C.R.P.(MD)No.783 of 2022

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2.By the impugned order dated 04.01.2022 in I.A.No.555 of 2018 in

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O.S.No.142 of 2016, the District Munsif Court, Sivakasi, has rejected the application

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filed by the petitioner with the following observations:-

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"5.6. vjph;kDjhuhpd; fl;blk; kl;Lk; 13 3 / 4 mbahf cs;sJ. Mdhy; Mizah; 13 1 / 4 mb vd;W $wpAs;sJ jtW vd;W Ml;Nrgid nra;ag;gl;Ls;s epiyapy; ,e;j tof;fpy; gpur;ridf;Fhpa ,lkhdJ vjph;kDjhuh; tPl;bw;F fPo;Gwk; cs;s 3 mb jhd;. ePjpkd;w Mizah; jd;Dila mwpf;ifapy; me;j 3 mb Fwpj;J Fwpg;gpl;L mwpf;if jhf;fy; nra;Js;s epiyapy; gpur;ridf;Fhpa ,lj;ij nghWj;J kDjhuUk; jd;Dila Ml;Nrgidapy; ve;j Ml;NrgidAk; njhptpf;fhj epiyapy; kDjhuhy; nrhy;yg;gLk; Ml;NrgidahdJ Njitaw;wJ vd ,e;ePjpkd;wk; fUJfpwJ. kDjhuh; ePjpkd;w Mizaiu rk;kd; nra;J jd;Dila Ml;Nrgid Fwpj;J mtiu tprhuiz nra;a KO chpikAk; cs;s epiyapy; kDjhuh; ePjpkd;w Mizah; mwpf;iff;F nrhy;ypAs;s Ml;Nrgidfs; midj;Jk; Vw;fj;jf;fjy;y vd ,e;ePjpkd;wk; fUJtjhy; ,e;j tof;fpy; Gjpjhf ePjpkd;w Mizah; epakdk; nra;J ,lj;ij ghh;itapl Ntz;ba mtrpak; ,y;iy vd ,e;ePjpkd;wk; fhz;fpwJ. vdNt kDjhuh; T.S.No.222- IAk; Nrh;j;J msf;f Ntz;Lk; vd;W jhf;fy; nra;Js;s kDthdJ epiyf;fj;jf;fjy;y vd;W ,e;ePjpkd;wk; jPh;T fhz;fpwJ. "

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3.The petitioner is the plaintiff in O.S.No.142 of 2016 on the file of the District Munsif Court, Sivakasi. O.S.No.142 of 2016 has been filed by the petitioner against the respondent for declaration and mandatory injunction. The prayer in O.S.No.142 of 2016 reads as under:-

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" m) jgrpy; “m” ,dr; nrhj;J thjpf;Fg; ghj;jpag;gl;lJ vd;W tpsk;Gifg; ghpfhuk; toq;fp gpujpthjp jdJ fPo;gf;fr; Rthpy; jgrpy; 'M” ,dr; nrhj;jhf tpthpj;Js;s tifapy; nra;Js;s Mf;fpukpg;ig mfw;wplf; Nfhhp nray; cWj;Jf;fl;lisg; ghpfhuk; toq;FkhWk;> M) jhth tof;fpw;fhd thjpapd; nryT njhifapidg; gpujpthjpNa thjpf;Fr; nrYj;jpl cj;jputpLkhWk;>

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,) tof;fpd; #o;epiyf;Nfw;g ,e;j khePjpkd;wk; vz;Zk; ,ju

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ghpfhuq;fs; toq;FkhWk; Ntz;lg;gLfpwJ. "

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

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C.R.P.(MD)No.783 of 2022

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4.In the said suit, the petitioner filed I.A.No.261 of 2017 for appointing an Advocate Commissioner under Order XXVI Rule 9 of C.P.C to inspect the suit schedule property and to give a report which came to be allowed on 08.08.2017.

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5.A report was also filed by the Advocate Commissioner on 22.03.2018 along with a sketch of the suit schedule property. Relevant portion of the report dated 22.03.2018 of the Advocate Commissioner reads as under:-

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" 9. kD "M" jgrpy; nrhj;jhdJ "m" jgrpy; nrhj;jpw;Fs; mikatpy;iy. kD "M" jgrpy; nrhj;jhdJ "m" jgrpy; nrhj;jpw;F Nkw;Nf Rkhh; 1 mb ,ilntspapy; vjph;kDjhuhpd; tPl;bd; fpof;F gf;f Rthpy; mike;jpUe;jJ. Nkw;gb kD "M" jgrpy; nrhj;jhdJ vjph;kDjhuh; tPl;bd; fpof;F gf;f Rthpy; "4" inch ePsj;jpy; ,uz;L sunshade mikf;fg;gl;bUe;jJ. Nkw;gb sunshade Mizah; tiuglj;jpy; rptg;G epwj;jpy; fhl;lg;gl;Ls;sJ. kD "M" jgrpy; nrhj;jpd; kw;nwhU mq;fkhd epwj;jpy; fhl;lg;gl;Ls;sJ. kD "M" jgrpy; nrhj;jpd; kw;nwhU mq;fkhd vjph;kDjhuh; tPl;bd; fpof;F gf;f Rthpy; "10" inch Rw;wstpy; (Perimeter) tlf;fpypUe;J njw;F Nehf;fp Rkhh; 23 mb ePsj;jpy; PVC Pipe- k;> Nkw;gb Rthpd; njd;filrpapy; "10" inch Rw;wstpy; (Perimeter) Rkhh; 7 mb cauj;jpy; thdj;ij Nehf;fp xU PVC Pipe- k; mikf;fg;gl;bUe;eJ. i\ PVC Pipe Mizah; tiuglj;jpy; 'Blue' epwj;jpy; fhl;lg;gl;Ls;sJ."

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As per the report, 'B' schedule property is not a part of 'A' schedule property.

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'B' schedule property is situated at a distance of 1 feet from 'A' schedule property on

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the western side of A schedule property of the plaintiff/petitioner and is divided by a

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

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C.R.P.(MD)No.783 of 2022

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wall on which the respondent/defendant's house is there. There are two sunshades of length 4 inch on the eastern side wall of the respondent's house projecting on the 'B' schedule property. As per the report there are two PVC Pipes of 23 feet long from north to south and 7 feet high facing sky on the above said wall.

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7.The petitioner appears to have given an objection stating that the report is not precise and does not meet the requirement for giving a proper measurement of the property as to whether the sunshade and the drainage pipe on the area meant to be used as a passage or whether it was within the area ear marked for the defendant, pursuant to the partition arrangement between the petitioner and the defendant, who purchased the property on 28.11.2020 in T.S.No.225 (Old S.No.169).

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8.It is submitted that the petitioner's objection was not considered. Therefore,

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the petitioner filed I.A.No.555 of 2018 for appointing another Advocate Commissioner, which came to be rejected by the Trial Court.

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9.Aggrieved by the same, the petitioner preferred C.R.P.(PD)(MD)No.144 of

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On 28.01.2020, this Court passed an order, which reads as under:

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"3. In view of the above, this Court directs the District Munsif Court, Sivakasi to consider the objection filed by the revision petitioner to the earlier commissioner's report and decided whether any further Commissioner is required or not and pass orders."

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C.R.P.(MD)No.783 of 2022

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10.It is submitted that the dispute in the present case pertains to east west measurement of the suit schedule property. The real dispute in the present Civil Revision Petition is whether the east west measurement of the property is 13 ¾ or 13 ¼ as has been observed by the Advocate Commissioner in his report, dated 22.03.2018.

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11.Opposing the prayer, the learned counsel for the respondent submits that the order is well reasoned and requires no interference. It is submitted that the petitioner had not questioned the measurement in the report earlier and that the petitioner has a right to cross-examine the Advocate Commissioner and therefore, no prejudice will be caused to the petitioner. Hence, prayed for dismissal of the Civil Revision Petition.

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12.I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondent. I have perused the impugned order, Plaint, and the Advocate Commissioner's Report dated 22.03.2018.

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13.The petitioner has filed O.S.No.142 of 2016 for declaratory relief and for permanent injunction in respect of 'A' schedule property. The Advocate Commissioner in his report dated 22.03.2018 has given a categorical finding that the respondent's property was situated one feet away from 'A' schedule property, the 'B' https://www.mhc.tn.gov.in/judis

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C.R.P.(MD)No.783 of 2022

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schedule property was not part of the 'A' schedule poperty, and that the respondent's house has a wall on the western side of the 'B' schedule property.

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14.Therefore, there is no scope for appointing an Advocate Commissioner once again to give a fresh report. If it is case of the petitioner that 'B' schedule property belongs to him, it is open for him to let in evidence and also subject the Advocate Commissioner for cross-examination to discredit the report. Hence, I am of view that the impugned order does not call for interference. Therefore the present Civil Revision Petition is liable to be dismissed. Accordingly, it is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.

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NCC : Yes / No Index : Yes / No 16.06.2023 Internet : Yes / No smn2

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The District Munsif, Sivakasi.

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C.R.P.(MD)No.783 of 2022

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C.SARAVANAN, J.

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smn2

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PRE-DELIVERY ORDER MADE IN C.R.P.(MD)No.783 of 2022

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DATED : 16.06.2023

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

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Alagarsamy, v. Mariappan

Case brief

What is this about?

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Alagarsamy, v. Mariappan

Case brief

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