Defendants challenged a Trial Court order appointing an Advocate Commissioner with a surveyor in an encroachment and right-of-way suit. The High Court held that identification by street name and boundaries sufficed despite no survey numbers, and that the commissioner's report was essential to determine encroachment.
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CRP.No. 1430 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.11.2024
CORAM:
THE HONOURABLE MR. JUSTICE R. SAKTHIVEL
Civil Revision Petition No. 1430 of 2023
and
Civil Miscellaneous Petition No. 9624 of 2023
1.S.Sathiyaseela 2.S.Nethaji 3.S.Gunasekaran 4.S.Ramamoorthy
…Petitioners/ Respondents 1 to 4/ Defendants 1 to 4
versus
The Residents of Annaikasthuribai Street, Ashok Nagar, Arakkonam, Represented by 1.L.Uthamaseelan, S/o. Lucky John 2.U.Sarala, W/o. Uthamaseelan
Nos.1 & 2 are residing at No. 56/12, Thiruvallur Street, Ashok Nagar, Arakkonam Ranipet District.
CRP.No. 1430 of 2023
3.E.Lakshmi
4.Baby 5.Rajendiran 6.Sivakumar ...Respondents/ Petitioners/ Plaintiffs
7.The Registrar Sub – Registrar Office Arakkonam.
8.The Arakkonam Municipality Represented by its Commissioner Arakkonam, Ranipet District. ...Respondents 5&6/
Defendants 5&6
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the fair and decretal Order dated January 25, 2023 made in I.A.No.343 of 2022 in O.S.No.82 of 2022 on the
file of District Munsif, Arakkonam, Vellore District.
For Petitioners : Mr.Jeremiah Gregory John For Respondents 1 to 5 : Mr.K.Venkateshwaran For M/s. M. Sathish Kumar For Respondent-6 : No Appearance For Respondent-7 : Mr.M.Murali Government Advocate For Respondent-8 : Mr.K. Mohammed Hydhar Ali
CRP.No. 1430 of 2023
ORDER
This Civil Revision Petition has been filed against the Order dated
January 25, 2023 made in I.A.No.343 of 2022 in O.S.No.82 of 2022 on the
file of District Munsif, Arakkonam, Vellore District [hereinafter 'Trial
Court' for brevity]
2. The revision petitioners herein are the defendants 1 to 4 and
the respondents 1 to 6 herein are the plaintiffs and the respondents 7 and 8
are the defendants 5 and 6 in the Original Suit.
3. For the sake of convenience, hereinafter the parties will be
referred to as per their array in the Original Suit.
4. The plaintiff filed the Original Suit in O.S.No. 82 of 2022 on
the file of the Trial Court, for the relief of declaration declaring the right of
CRP.No. 1430 of 2023
way of the residents of the Annai Kasthuribai Street, Annaisivakami Street, Tiruvallur Street, Mangalakizhar Street, Kainoor Village and many streets to have access to their houses in the Suit 'B' and 'C' Schedule Properties which forms part and parcel of Suit 'A' Schedule Property and granting a mandatory injunction directing the 1st defendant to remove the unlawful
construction put up by the 1st defendant over the Suit 'B' and 'C' Schedule Properties and restore the same in its original condition and other reliefs.
5. In the said Original Suit, the plaintiffs filed an Interlocutory Application in I.A.No.343 of 2022 under Order 26 Rule 9 of CPC, praying to appoint an Advocate Commissioner to inspect and note down the physical features of 'B' and 'C' Schedule Properties with the help of Town Surveyor and file a report and plan.
CRP.No. 1430 of 2023
6. The first defendant filed counter affidavit by raising objection
for Appointment of Advocate Commissioner. The Trial Court after hearing both sides, allowed the said application by Order dated January 25, 2023 by appointing an Advocate Commissioner to inspect and note down the physical features of Suit 'B' and 'C' Schedule Properties with the help of Town Surveyor and to file a report and plan.
7. Feeling aggrieved by the Order of the Trial Court, the
defendants have preferred this Civil Revision Petition.
8. Mr.Jeremiah Gregory John, learned Counsel appearing for the
revision petitioners/defendants argued that no survey number has been mentioned in the Suit Description of Properties. He further submits that
the application was filed only to collect evidence by way of Advocate Commissioner and the Trial Court erred in allowing the said application.
CRP.No. 1430 of 2023
Accordingly, he prays to allow the Civil Revision Petition.
9. In response to the above arguments, Mr.K.Venkateshwaran for
Mr.M.Sathish Kumar, learned Counsel for the respondents/plaintiffs would
submit that the defendants encroached a portion of the Suit Property and to
prove the exact encroached portion of the Suit Property by appointment of
Advocate Commissioner along with Taluk Surveyor, is very much
essential. The Trial Court after hearing both sides, allowed the application. Hence, there is no infirmity in its Order. Accordingly, he prays to sustain the order passed by the 'Trial Court'.
10. This Court has considered both sides' submissions.
11. The case of the plaintiff is that the defendants encroached a
portion of the Suit Property and put up a construction. To find out the
CRP.No. 1430 of 2023
exact encroachment, the plaintiff filed an Application seeking appointment
of Advocate Commissioner along with Taluk Surveyor. The defendants objection is that the Suit Schedule of Properties do not contain survey numbers and exact extent of Suit Properties. In the absence of survey number and extent, Appointment of Advocate Commissioner would not serve any purpose. The plaintiff wants to collect evidence by way of Advocate Commissioner, which is impermissible in law. This Court has perused the Schedule of Properties mentioned in the petition. Though survey number has not been mentioned, street name and four boundaries have been given. Hence, there may not be any difficulty in identifying the petition mentioned properties. Hence, this Court is of the considered view that to find out as to whether the defendants have encroached a portion of the Suit Property or not, absolutely an Advocate Commissioner's report is
essential. Hence, this Court does not find any merits in the Civil Revision Petition and the same is liable to be dismissed.
CRP.No. 1430 of 2023
12. Accordingly, this Civil Revision Petition is dismissed.
Considering the facts and circumstances, no costs. Consequently,
connected Civil Miscellaneous Petition is closed.
13.11.2024
Index :Yes/No Neutral Citation :Yes/No Speaking Order :Yes/No MSM To The District Munsif, Arakkonam, Vellore District.
CRP.No. 1430 of 2023
R. SAKTHIVEL, J
MSM
CRP.No. 1430 of 2023
13.11.2024
1 issue framed by the court
Whether the Trial Court rightly allowed appointment of an Advocate Commissioner under Order 26 Rule 9 CPC despite absence of survey numbers in the suit property schedule.
2 provisions across 2 enactments
S.Sathiyaseela
S.Nethaji
S.Gunasekaran
S.Ramamoorthy
The Residents of Annaikasthuribai Street, Ashok Nagar, Arakkonam, represented by 1.L.Uthamaseelan and others (including E.Lakshmi, Baby, Rajendiran, Sivakumar)
The Registrar, Sub-Registrar Office, Arakkonam
R. Sakthivel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
