Dismissed¶33

R.Shanthi v. v.Krishnan

Madras HC21 Jul 2025CRP(MD)/1962/2025

Case brief

AI extract

What is this about?

Madras High Court, Madurai Bench; Justice M. Dhandapani; CRP(MD) No.1962 of 2025; Article 227 Constitution of India; Advocate Commissioner; remitting back warrant; re-issuance of report; measurement on revenue records versus partition suit and Will (Will dated 20.02.1980; partition suit 24.10.2008); O.S.No.302 of 2019; I.A.Nos.759/2016 and 3/2023; District Munsif Court, Rajapalayam; declaration and permanent injunction; common wall; objections to Commissioner's report; title to be proved by evidence; revision dismissed; no costs.

What did the court decide?

The report of the Advocate Commissioner is a piece of evidence to decide the issue; it is not conclusive proof. ¶29

R.Shanthi Vs v.Krishnan — 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 dismissal of the petitioner's application (IA No.3 of 2023) seeking remitting back of the Advocate Commissioner's warrant and re-issuance of his report — on the ground that the Commissioner had measured the property based on the documents possessed by the petitioner and the revenue records and not on the basis of the partition suit and Will — should be interfered with by this Court under Article 227.

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Ratio / Principle

The report of the Advocate Commissioner is a piece of evidence to decide the issue; it is not conclusive proof.

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Key takeaways

The petitioner cannot make a prayer of the kind made (compelling re-measurement per chosen documents); she has to establish her title before the trial Court by adducing proper evidence.ratio¶29
If the petitioner has any grievance against the Advocate Commissioner's report, her remedy is to file objections to the report.ratio¶29
Once the Commissioner is appointed, the party has no right to force the Commissioner to measure the property.

Detailed headnote1 paragraphs

Civil Revision Petition under Article 227 of the Constitution of India against the fair and decreetal order dated 29-01-2024 of the District Munsif Court, Rajapalayam, dismissing I.A.No.3 of 2023 in O.S.No.302 of 2019 — the plaintiff-petitioner sought remitting back of the Advocate Commissioner's warrant and re-issuance of his report, alleging that he had measured the suit property on the basis of the documents in her possession and the revenue records rather than the partition suit and the Will: Held — (i) the report of the Advocate Commissioner is only a piece of evidence to decide the issue and is not conclusive proof; (ii) a party who has obtained appointment of an Advocate Commissioner cannot make a prayer forcing the Commissioner to measure the property according to particular documents and must establish title before the trial Court by adducing proper evidence; (iii) any grievance against the Commissioner's report lies by way of objections to the report; (iv) the trial Court rightly rejected the application, finding the report and sketch adequate to determine the suit. Civil Revision Petition dismissed; connected Miscellaneous Petition (CMP(MD) No.11285 of 2025) closed; no costs. — M. Dhandapani, J.

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CRP(MD). No.1962 of 2025

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Dated : 21/07/2025

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CORAM

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THE HONOURABLE MR. JUSTICE M.DHANDAPANI

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CRP (MD). No.1962 of 2025 and CMP(MD) No.11285 of 2025

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R.Shanthi ... Petitioner

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V.Krishnan ... Respondent

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PRAYER :-Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 29-01-2024 passed in I.A.No.3 of 2023 in O.S.No.302 of 2019 on the file of the District Munsif Court, Rajapalayam.

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For Petitioner : Mr.P.Samuel Gunasingh

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ORDER

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The Civil Revision Petition is filed against the fair and decreetal

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order dated 29-01-2024 passed in I.A.No.3 of 2023 in O.S.No.302 of 2019 on the file of the District Munsif Court, Rajapalayam.

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1/6

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

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CRP(MD). No.1962 of 2025

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Since no adverse orders are going to be passed against the

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respondent, notice to the respondent is dispensed with.

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The petitioner is the plaintiff and she instituted the suit in OS No.302/2019 for declaration and permanent injunction. Pending suit, she filed an interlocutory application in IA No.759/2016 for appointment of Advocate Commissioner to note down the physical features and measure the property with qualified Surveyor based on the partition suit and Will. Thereafter, the Advocate Commissioner filed a report before the trial Court and the same reveals that the Advocate Commissioner measured the property on the basis of the revenue records and not on the basis of the partition suit and the Will and hence, the petitioner filed another interlocutory application in IA No.3/2023 for remitting back the warrant of the Advocate Commissioner and for re-issuance of the report. The said application was dismissed. Challenging the same, the petitioner is before this Court.

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2/6

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

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CRP(MD). No.1962 of 2025

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The learned counsel for the petitioner would submit that pursuant to the order passed by the trial Court in IA No.759/2016, the Advocate Commissioner, after measuring the suit property, has filed a report and since the report of the Advocate Commissioner was insufficient and defective measurement and it is not based on the partition suit and Will, the petitioner filed an interlocutory application, which, the trial Court dismissed on the sole ground that the survey was conducted based on the parent document and revenue records and the Will dated 20.02.1980 and partition suit 24.10.2008 are subsequent to the revenue records and parent document and hence, there is no necessity to measure the same based on the Will and partition suit. The learned counsel however contended that when the measurement is varying according to the records and Will and partition suit, the remitting back of the Advocate Commissioner is necessary and prays for interference.

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I have considered the rival submissions and perused the materials available on record.

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3/6

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

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CRP(MD). No.1962 of 2025

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Upon considering the submissions made, this Court is of the considered opinion that the report of the Advocate Commissioner is a piece of evidence to decide the issue and and it will not be the conclusive proof. In the case on hand, the petitioner is the plaintiff and she instituted the suit for declaration and permanent injunction with regard to the common wall as if the defendant is preventing the petitioner from enjoying the common wall by opening the doors, windows and sunshade. It is not in dispute that earlier the petitioner filed an application for appointment of Advocate Commissioner to measure the property and note down the physical features and the same was allowed. Now the grievance appears to be that the Advocate Commissioner so appointed has measured the property based on the document possessed by the petitioner and the revenue records and not on the basis of the partition suit and Will. The petitioner cannot make such a prayer. The petitioner has to establish her title before the trial Court by adducing proper evidence. If the petitioner has any grievance to the report of the Advocate Commissioner, she can very well file her objections to the report and while the Commissioner is appointed, she has no right to force a Commissioner to measure the property. The trial Court has rightly

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

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CRP(MD). No.1962 of 2025

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appreciated all the issue and rejected the application stating that in order to determine the suit, the report and sketch filed by the Advocate Commissioner is found to be adequate and therefore, the order of the trial Court need not be interfered with. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently connected Miscellaneous Petition is closed.

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21.07.2025

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NCC : Yes/No Index : Yes/No RR

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