This revision petition challenged the appointment of an Advocate Commissioner to ascertain possession under an alleged oral partition. The High Court held that such appointment amounts to collecting evidence and set aside the lower court order.
Impugned order appointing an Advocate Commissioner in I.A.No.91 of 2014 is set aside.
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.
C.R.P(MD).No.151 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 04.03.2024
CORAM:
THE HON'BLE Mr. JUSTICE K.K.RAMAKRISHNAN
C.R.P.(MD).No.151 of 2015
1.P.Sundararajan @ Sundaram
2.T.Rajan
... Revision Petitioners
Vs.
K.Ambrose (died)
S.Chellappan (died)
3.C.Radhakrishnan
4.Ratnabai
5.Thompson @ Sundarajan ... Respondents 3 to 5
(Respondents 3 to 5 remained exparte before trial Court)
6.Johnson
7.Pillominal
8.Mary
9.Mariya Vincent Raj
(Respondents 6 to 9 are impleaded as per order of this Court, vide order dated 04.03.2024 in Crl.M.P. (MD).No.3605 of 2024)
10.Gnanaselvam
11.Bright
12.Jeya
13.Kala Amalraj
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14.Suja Paul Jill Singh
15.Sheeba Rajendran ... Respondents 6 to 15
(Respondents 10 to 15 are impleaded as per order of this Court, vide order dated 04.03.2024 in Crl.M.P. (MD).No.3611 of 2024)
Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India, praying to allow the Civil Revision Petition and set aside the order passed in I.A.No.91 of 2014 in O.S.No.392 of 2008, dated 05.07.2014 on the file of the Principal District Munsif Court, Padmanabhapuram.
For Petitioners : Mr.M.Suresh
For Respondents : No appearance for R6, 7, 9 & R13 : Exparte for R3 to R5
ORDER
The defendant in O.S.No.392 of 2008 filed this revision petition challenging the fair and decreetal order passed in I.A.No.91 of 2014 filed under Order 26 Rule 9 and Section 151 of C.P.C., to appoint Advocate Commissioner to measure the suit scheduled properties.
herein filed a suit for declaration of the title and possession over the plaint
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B and C scheduled properties and consequential prayer of permanent injunction restraining the petitioner from interfering with the peaceful possession and enjoyment of the properties. According to the plaintiff, the petitioners are also co-sharers of the suit scheduled properties and their ancestors entered into oral partition and they got the properties described in the 'B' and 'C' Scheduled properties. To prove the oral partition, they sought appointment of the Advocate Commissioner to show that the possession and enjoyment was done as per the oral partition. The same was contested by the petitioner by filling a counter. The learned trial Judge, without considering the counter, stated that the appointment of the Advocate Commissioner to show the possession as per oral partition is necessary and allowed the application by the impugned order dated 05.07.2014.
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submitted that even otherwise the learned trial Judge ought to have ordered
to measure the entire suit scheduled properties including the enjoyment by the petitioner also. Hence, there is infirmity in the impugned order and hence, he seeks for the dismissal of the order passed by the trial judge in I.A.No.91.2014.
Subsequently, the respondents 1 and 2 died and hence, petitions were filed to implead the legal heirs of the respondents 1 and 2 and all the legal heirs were issued with notice. Out of the 10 representatives, more than 6 representatives were not served with notice. This Court considered that sufficient representation is available to contest the case.
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C.R.P(MD).No.151 of 2015
of the persons as stated in the plaint. Hence, he seeks for declaration of injunction for his possession as per the oral partition. In the said circumstances, it is duty of the plaintiff to prove the case of the oral partition by producing the sufficient documents and oral evidence. When there is an oral partition, appointment of Advocate Commissioner to find out the specific possession of the specific portion of the properties, as rightly argued by the learned Counsel for the petitioners, amounts to collection of the evidence. Hence, this Court accepts the contention of the petitioner.
04.03.2024
NCC : Yes / No Index : Yes / No Internet : Yes / No vsg Note:Issue Order Copy on 20.03.2024.
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C.R.P(MD).No.151 of 2015
To
Madurai Bench of Madras High Court, Madurai.
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C.R.P(MD).No.151 of 2015
K.K.RAMAKRISHNAN, J.
vsg
C.R.P.(MD).No.151 of 2015
Dated: 04.03.2024
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2 issues framed by the court
Whether the appointment of an Advocate Commissioner to ascertain specific possession under an alleged oral partition constitutes a collection of evidence prohibited by the trial court in a civil suit
Whether the trial judge erred in appointing an Advocate Commissioner to measure only specific portions of the schedule properties instead of the entire suit property.
3 provisions across 2 enactments
1.P.Sundararajan @ Sundaram
2.T.Rajan
3.C.Radhakrishnan
4.Ratnabai
5.Thompson @ Sundarajan
K.K.Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
