Allowed

K.v.Subburaman v. N. Dharmalingam

Madras HC13 Aug 2024CRP/948/2024

Case brief

AI extract

What is this about?

Revision against dismissal of an application for appointing an Advocate Commissioner in a bare injunction suit over a pathway. The High Court held the Commissioner's measurement report would assist the trial court despite delay, set aside the impugned order, and directed appointment of a Commissioner.

What did the court decide?

Order in I.A.No.4 of 2023 set aside; trial court directed to appoint an Advocate Commissioner to measure the suit property and submit a report before judgment; no costs; connected CMP closed.

K.v.Subburaman Vs N. Dharmalingam — Property and Title | Madras HC (2024)

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CRP No.948 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 13.08.2024

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CORAM

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THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN

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CRP No.948 of 2024 &

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CMP.No.4750 of 2024

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1.K.V.Subburaman 2.V. Chinnasamy

: Petitioners

versus

1.N. Dharmalingam

2.Prema

3.Thangamani

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4.Santhi

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5.Raja Gokul

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6.Sanjeevi : Respondents

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Prayer: Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 23.11.2023 in IA.No. 4 of 2023 in OS.No. 52 of 2013 on the file of the Additional District Munsif Court, Pollachi

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For Petitioners : Mr.C.RPrasanan

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For Respondents : No appearance

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Page 1 of 9

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

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ORDER

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CRP No.948 of 2024

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This civil revision petition arises against the order of the learned

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Additional District Munsif at Pollachi in I.A.No.4 of 2023 in O.S.No.52 of

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2013 dated 23.11.2023.

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O.S.No.52 of 2013 is a suit for bare injunction restraining the

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defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The schedule of the suit is extracted hereunder:

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“ ,jd; kj;jpapy; 6 tpl;lk; nghl;l 5 m';fz nkw;F fpHf;F thryha; nky; Tiu ,y;yhky; rpf;!;jhd tpy;iytPLk;. ,jd; Kd;g[wk; nkw;F thryha; ,oe;J nghd fil tPlha; $hfht[k; gpd;g[ak; cs;s fhyp ,lKk; rpf!;jhf nfhg;g[ rkhd; tifawhf;fs;/ ”

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According to the plaintiffs, his father came by the property by

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virtue of sale deed dated 15.03.1962. Thereafter, in a partition that had been entered into between the family members of the plaintiffs, a larger portion including the suit property had been allotted to him on 16.12.2010. They

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CRP No.948 of 2024

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would state that the defendants who are neighbours have no right, title or interest over the suit schedule property. They would plead that the said passage exclusively belongs to the plaintiffs and the defendants have attempted to create a non-existing right over the pathway.

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On entering appearance, the defendants filed a detailed written statement. According to them, they purchased the property in 1972 and in the said document, in addition to the property purchased by them, they were also entitled to use the pathway which is mentioned as a suit property.

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After the evidence of both sides were over, when the matter was posted for arguments, an application was filed for appointment of an Advocate Commissioner to measure the suit property on the basis of the sale deed dated 15.03.1962, partition deed dated 16.12.2010 and the sale deed of the defendants dated 14.02.1972. This application was received in I.A.No.4 of 2023.

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The learned Subordinate Judge issued notice in the said application.

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Page 3 of 9

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CRP No.948 of 2024

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The objection of the defendants 1 to 3 with the other defendants 4 to 7 remaining exparte was that the suit has been pending for the past ten years and no effort had been taken by them to take out an application for appointment of an Advocate Commissioner. In addition on the merits of the case, they would state that their house is facing south along with the right to use the front yard to reach the road on the eastern side. They would plead that their property is an old one and the superstructure has not changed in all those years. They would plead that they have marked the photographs to substantiate the same. They would plead that the plaintiffs have encroached upon the property which is the front yard left for their use.

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The learned Trial Judge dismissed the application on grounds of

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delay as well as on the ground of whether the passage falls within the area of the plaintiffs or whether the defendants also have the right has to be proved only by way of documents, against which the present revision.

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This matter came up for admission before this Court on 24.04.2024. Notice was issued to the respondents. The respondents were Page 4 of 9

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CRP No.948 of 2024

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served with notice on 29.04.2024 privately and the court notice was served on 09.05.2024. Despite both modes of service, there is no representation for the contesting respondents.

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Mr.C.Prasanan would argue that whether the lie of the property can be found out only if an Advocate Commissioner is appointed. He would plead that the pathway to an extent of 12 feet on the north-eastern side of

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the property had been left out by the plaintiffs for their convenient enjoyment.

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In addition to the argument, a perusal of the plaint also shows that the specific plea of the plaintiffs is that the pathway is situated within the four boundaries of their property.

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Per contra, from the counter of the defendants, it is clear that they

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would plead that the front yard was left open and their extent of the property is about 41 x 19 sq.ft.

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CRP No.948 of 2024

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The issue that has to be decided in the suit is whether the pathway falls within the plaintiffs' property or whether it is outside the plaintiffs' property over which the defendants would also have the right.

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Insofar as the title of the plaintiffs and the defendants are concerned, to their respective portions are not in dispute. The dispute relates only to the vacant land abutting both the property. No doubt there has been considerable delay on the side of the plaintiffs in moving the application. However, I am not inclined to dismiss the revision on that ground. This is because a report from the Commissioner will assist the Court at the time of pronouncing the judgment in the suit.

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The Trial Court would necessarily have to answer on the extent of the plaintiffs' property and the extent of the defendants' property and whether the pathway falls in common or whether it falls exclusively in the property of the plaintiffs. Since there is a dispute with respect to where the pathway lies, I feel if an Advocate Commissioner goes and visits the property, and submits a report, it would enable the Court to decide the issue Page 6 of 9

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CRP No.948 of 2024

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in a proper perspective.

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In the light of the above discussion, the order in I.A.No.4 of 2023 in O.S.No.52 of 2013 dated 23.11.2023 is set aside. The learned Additional District Munsif, Pollachi shall appoint an Advocate Commissioner, who is sufficiently well versed on the civil side. The Commission need not take the assistance of the Government surveyor as he is irrelevant. The Commissioner shall measure the property on the basis of the two sale deeds namely 15.03.1962 and 14.12.1972 and submit a report to the court.

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It is made clear that both the parties will not be entitled to let in fresh evidence on the basis of the Commissioner's report. After receipt of the Commissioner's report, the Court shall take into consideration the report and render a judgment in the suit.

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With the above direction, this civil revision petition is allowed. No

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costs. Consequently, the connected miscellaneous petition is closed.

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CRP No.948 of 2024

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13.08.2024

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Index : Yes/No Speaking Order/Non-speaking order Neutral Citation : Yes/No To The Additional District Munsif Court, Pollachi

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CRP No.948 of 2024

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V.LAKSHMINARAYANAN, J.

CRP No.948 of 2024

13.08.2024

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

K.v.Subburaman v. N. Dharmalingam

Case brief

What is this about?

What did the court decide?

K.v.Subburaman v. N. Dharmalingam

Case brief

What is this about?

What did the court decide?

What the court decided

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