Dismissed¶39

Subbaiah Gounder (Died) 1.PALANIYAMMAL, v. Perumal

Madras HC29 Jan 2025CRP(MD)/1829/2022

Case brief

AI extract

What is this about?

Civil Revision Petition; Article 227 Constitution of India; Madurai Bench Madras High Court; K. Govindarajan Thilakavadi; Advocate Commissioner report scrapped; re-survey suit property; boundary stones; disputed area measurement; declaration and permanent injunction; O.S.No.103 of 2017; I.A.No.3 of 2022; District Munsif Court Palani Dindigul; burden of proof defendants; Commissioner report only piece of evidence; pathway staircase dispute; order confirmed; no costs; reserved 22.01.2025 pronounced 29.01.2025.

What did the court decide?

This Court finds no illegality or infirmity in the order passed by the Court below dismissing I.A.No.3 of 2022; accordingly the Civil Revision Petition is dismissed, confirming the trial Court's order dated 24.06.2022. ¶38

Subbaiah Gounder (Died) 1.PALANIYAMMAL, Vs Perumal — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the trial Court's order dated 24.06.2022 dismissing I.A.No.3 of 2022 (by which the defendants sought to scrap the Advocate Commissioner's report and obtain a re-survey) suffers from any illegality or infirmity warranting interference under Article 227 of the Constitution of India. +1 more

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Court's answer

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Ratio / Principle

The burden of proof is upon the revision petitioners to show that they have right over the property only through oral and documentary evidence; they cannot solely rely upon the report of the Advocate Commissioner.

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Key takeaways

The report of the Advocate Commissioner is only a piece of evidence, which enables the Court to come to a just and fair conclusion when considered along with all other evidence collected during the course of trial.ratio¶35

Detailed headnote1 paragraphs

Madras High Court (Madurai Bench) — K. Govindarajan Thilakavadi, J. — Civil Revision Petition under Article 227 of the Constitution of India dismissed (decided 29.01.2025). The revision petitioners/defendants in O.S.No.103 of 2017 (District Munsif, Palani, Dindigul District) had sought, by I.A.No.3 of 2022, to scrap the Advocate Commissioner's report dated 07.12.2020 — objected to as bereft of details, failing to mark boundary stones or measure the disputed area — and to direct a re-survey; the trial Court dismissed that application on 24.06.2022. Upholding the dismissal, this Court held: (i) there is no illegality or infirmity in the order passed by the Court below; (ii) the burden of proving right over the property rests on the petitioners through oral and documentary evidence, and they cannot solely rely on the Advocate Commissioner's report; and (iii) such report is only a piece of evidence to be weighed with all other evidence collected during trial. Connected Miscellaneous Petition CMP(MD).No.8233 of 2022 closed; no costs.

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C.R.P.(PD)(MD) No.1829 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Reserved on 22.01.2025 Pronounced on 29.01.2025

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CORAM

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THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI

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C.R.P.(MD) No. 1829 of 2022 and CMP(MD).No.8233 of 2022

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Subbaiah Gounder (died)

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1.Palaniyammal 2.Mariappan

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3.Murugan ... Revision petitioners / defendants

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Vs.

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Perumal ... Respondent / defendant

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Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair order and decreetal order, dated 24.06.2022 passed in I.A.No.3 of 2022 in O.S.No.103 of 2017 on the file of the learned District Munsif Court, Palani, Dindigul District.

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For Petitioner : Mr. S. Karthik

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For Respondent : No appearance

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https://www.mhc.tn.gov.in/judis ______________ Page No. 1 of 7_

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C.R.P.(PD)(MD) No.1829 of 2022

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O R D E R

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This Civil Revision Petition is filed against the fair order and decreetal order, dated 24.06.2022 made in I.A.No.3 of 2022 in O.S.No. 103 of 2017 on the file of the learned District Munsif, Palani, Dindigul District.

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The revision petitioners are the defendants in the said suit in O.S.No.103 of 2017 on the file of the learned District Munsif, Palani, Dindigul District. The respondent / plaintiff has filed the above suit for declaration and permanent injunction. Pending suit, the respondent / plaintiff took out an application for appointment of Advocate Commissioner and the same was allowed. The Advocate Commissioner visited the property and filed his report on 07.12.2020. However, the said report of the Advocate Commissioner was objected by the petitioner on the ground it was bereft of details. It was contended that the Advocate Commissioner failed to mark the boundary stone and identify the disputed area in the plan and report. The Commissioner also failed to measure the portion of the disputed area in the suit property and hence, he was constrained to file an application in I.A.No.3 of 2022 to scrap the earlier

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C.R.P.(PD)(MD) No.1829 of 2022

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report filed by the Advocate Commissioner to re-visit the suit property and to conduct the re-survey in the suit property. However, the said application was dismissed by the trial Court. Against which the present revision is preferred.

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The learned counsel appearing for the revision petitioners would submit that since the Advocate Commissioner failed to identify the boundary stones and measure the disputed area it has become necessary to file an application to scrap the earlier report and direct the same commissioner to re-visit the property for the said purpose. His further contention is that there is no dispute regarding the eastern side pathway in the suit property. But, the actual dispute is that the revision petitioners while enjoying the said area as a pathway, the respondent / plaintiff is now trying to construct the stair case in that area. When the same was objected by the revision petitioners / defendants, the respondent / plaintiff has filed the present suit. Even in the written statement filed by the revision petitioners, it is specifically mentioned that the remaining area is not in dispute. Therefore, unless the Advocate Commissioner measures the disputed area by identifying the boundary stones and demarcate the same there cannot be any fair adjudication.

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

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C.R.P.(PD)(MD) No.1829 of 2022

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Heard the counsel for petitioners and perused the records.

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Despite the notice, the respondent neither appeared in person or through his counsel.

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The said application was dismissed by the trial Court with the following observation:

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“6. tof;fhdJ kDjhuh;> thjpahy; tpsk;Gif kw;Wk; RthjPd ghpfhuk; Nfhhp jhf;fy; nra;ag;gl;Ls;sJ. ,t;tof;fpy; ePjpkd;w Mizah; jdJ mwpf;if kw;Wk; tiuglj;i jhf;fy; nra;Js;shh;. mjw;F chpa Ml;NrgizAk;> vjph;kDjhuuhy; jhf;fy; nra;ag;gl;Ls;sJ. ,t;tof;fpy; gpujpthjpahy; vjph;NfhhpUik vJTk; jhf;fy; nra;ag;gltpy;iy. tof;F tpruhiz njhlq;fp th.rh.1 rhl;rp tprhhpf;fg;gl;L> th.rh.2 rhl;rp Fwf;F tprhuizf;fhf Nghlg;gl;bUe;j epiyapy; ,k;kD jhf;fy; nra;ag;gl;Ls;sJ. Gpujpthjp jdJ ghpe;Jiuapy; jhth nrhj;jpw;F thjp ngahpy; gl;lh toq;fg;gl;Ls;sJ vd;Wk;> jhth nrhj;jpw;F fpoGwk; mike;Js;s nrhj;jpid thjp Mf;fpukpg;G nra;J foptiw kw;Wk; gbf;fl;L mikf;f Kaw;rp nra;tjhfTk; vjph;thjk; nra;Js;shh;. ,t;tof;fpy; epakpf;fg;gl;l ePjpkd;w Mizah; mwpf;if kw;Wk; tiuglk; jhf;fy; nra;Js;shh;. ,jpy; cgathjpfspd; ghijia nghWj;Jk; njd;tly; ghijia nghWj;Jk; tiuglj;jpy; fhz;gpj;Js;shh;. jtpu ,e;j jhth nrhj;jpd; Gy vz;. 36-31 mjw;F fpoGwk; mike;Js;sjhf nrhy;yg;gLk; re;ij nghWj;J ,t;tof;fpy; ve;j gpur;ridak; ,y;iy. NkYk; vjph;kDjhuh; mtUf;F ghj;jpag;gl;l nrhj;ij nghWj;J VnjDk;. gpur;rid Vw;gl;L ,Uf;Fk; gl;rj;jpy; mth; jdpNa eltbf;if vLj;Jf;nfhs;s Ntz;LNk jtpu ,t;tof;fpy; jhth nrhj;jpw;F rk;ke;jk; ,y;yhj nrhj;ij mstPL nra;J tiuglk; jhf;fy; nra;a kPz;Lk; ePjpkd;w Mizah; epakdk; NfhUtJ rl;lg;gb

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C.R.P.(PD)(MD) No.1829 of 2022

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Vw;fj;jf;fjy;y. jhth nrhj;ij mstPL nra;J tiuglk; jhf;fy; nra;ag;gl;Ls;sJ. gpujpthjp mtUf;F ghj;jpag;gl;l nrhj;ij mspf;f Ntz;Lnkdpy; mth; jdpNa tof;fpl;L eltbf;f vLj;Jf; nfhs;s Ntz;LNkh jtpu tof;F tprhuiz njhlq;fp thjp jug;G 2 tJ rhl;rpapd; Fwf;F tprhuizf;fhf tha;jh Vw;gl;lbUe;j epiyapy; tof;if fhyjhkjk; nra;tjw;fhf ,k;kD jhf;fy; nra;ag;gl;Ls;sJ vd;Nw ,e;ePjpkd;wk; fUJfpwJ.”

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In the earlier Commission petition, the Advocate Commissioner has filed his report on 07.12.2020 and the petitioners have filed their objections for the said report. The trial Court also categorically held that the petitioners cannot seek for appointment of Advocate Commissioner for the property, which is not in dispute. Therefore, the burden of proof is upon the revision petitioners to show that they are having right over the property only through the oral and documentary evidence. The petitioners have to independently establish their right and they cannot solely rely upon the report of the Advocate Commissioner. Moreover, the report of the Advocate Commissioner is only piece of evidence which will enable the Court to come to just and fair conclusion by considering the same along with all other evidences that has been collected during the course of

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C.R.P.(PD)(MD) No.1829 of 2022

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trial. This Court does not find any illegality or infirmity in the order passed by the Court below.

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Accordingly, this Civil Revision Petition is dismissed confirming the order, dated 24.06.2022 made in I.A.No.3 of 2022 in O.S.No.103 of 2017 on the file of the learned District Munsif Court, Palani, Dindigul District. No costs. Consequently, the connected Miscellaneous Petition is closed.

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29.01.2025

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Index: Yes/ No Neutral Citation: Yes / No Speaking Order/Non-Speaking Order

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trp

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Copy To:

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The District Munsif Court, Palani, Dindigul District.

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