Selvaraj v. Boopathi

ORDER The petitioner is the first defendant in O.S.No.152 of 2014 on the file of the District Munsif Court. The suit has been filed by the respondents herein for declaration and permanent injunction.

¶2It is the specific case of the petitioner that the first respondent's mother sold an extent of 30 cents of agricultural land in S.No.377/1 by sale deed, dated 16.11.1994 and that the petitioner herein is in possession of the aforesaid land since 1994. It is further submitted that in the suit, the respondent had also filed I.A.No.555 of 2014 for appointment of Advocate Commissioner, which was ordered, pursuant to which an inspection was made by the Advocate Commissioner on 15.02.2020, which has culminated in a report, dated 24.11.2020. It is submitted that the Advocate Commissioner has given a wrong report without considering physical features of the land.

¶3It is further submitted that the petitioner also objected to the above report on 18.02.2021 and since the objection was over ruled, the petitioner was constrained to file I.A.No.180 of 2021, which has been rejected by the Trial Court. It is submitted that the trial Court committed a grave error in rejecting the application for appointing Advocate Commissioner to give fresh report. It is submitted that during the inspection, Advocate Commissioner was requested to take down the physical features of the property which was refused by the Commissioner and filed a report on 24.11.2020. He further submitted that the Advocate Commissioner inspected the property after 07.00 pm though objected. Therefore, the report filed by the Advocate Commissioner was to be substituted.

¶4The learned counsel for the petitioner drawn attention to the report and the sketch.

¶5I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondent and also perused the impugned order. The relevant portion of the order reads as under: "20. NkYk;> xU ePjpkd;w Mizah; epakd kDit mDkjpg;gjhNyNa tof;Fr; nrhj;Jf;fs; ahUf;F nrhe;jk; vd;W $wNth my;yJ xU jug;Gf;F Mujthf epytpay; mikg;ig kPwp> Mtzq;fspy; cs;sjw;F

khwhf

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mwpf;ifiaAk; juNth ,ayhJ. mt;thW mspj;Js;sjhf ve;j jug;gpdh; fUjpdhYk; Ml;Nrgpf;f chpa tha;g;G toq;fg;gl;L jug;gpdh; fUjpdhYk; Ml;Nrgid rhp vd;W ePjpkd;wk;k kd epiwT nfhs;Sk;gl;rj;jpy; me;j

mwpf;ifia

epuhfhpf;fTk;

rl;lg;gb tha;g;Gs;sJ. vdNt> ePjpkd;w Mizah; epakdk; vd;gJ kD nrhj;Jf;fis ghh;itapl;L ,Ujug;gpdh; Kd;dpiyapy; chpa muR mYtyh; thapyhf mse;J tof;F nrhj;Jf;fspd; mikg;G Fwpj;Jk;> ,aw;if jd;ik Fwpj;Jk; kw;Wk; nrhj;jpd; vy;iyfs; Fwpj;Jk; ePjpkd;wk; tof;fpd; jug;gpdh;fSf;F ,ilNa cs;s gpur;ridfis KOikahd jPh;T fhz cjtplTNk epakdk; nra;ag;gLfpwhh;.

¶21,e;j tof;fpYk; mt;thW ePjpkd;w Mizah; epakdk; nra;ag;gl;L tof;F nrhj;Jf;fspd; epytpay; mikg;G Fwpj;J> mse;J mwpf;if jhf;fy; nra;ag;gl;Ls;sJ. Nkw;gb mwpf;ifapd; kPJ ,e;j kDjhuh; Ml;Nrgid kl;Lk; njhptpj;Js;shh;. Mdhy;> ePjpkd;w cj;jutpd;gb tof;F nrhj;Jf;fis Nkw;gb ePjpkd;w Mizah; mse;J mwpf;if jhf;fy; nra;atpy;iy vd;gijAk; me;j mwpf;ifapy; FiwghLfs; cs;sJ vd;gijAk;> ePjpkd;w kd epiwT nfhs;Sk; tifapy; Nkw;gb ePjpkd;w Mizaiu tprhuiz nra;aNth mth; jhf;fy; nra;j mwpf;ifia ePf;fuT nra;aNth vt;tpj eltbf;ifAk; vLf;ftpy;iy

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tprhuiz Jtq;fg;gl;L> thjpfs; jug;gpy;> 1Mk; thjp G+gjp th.rh.1Mf

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tof;F Mtzq;fSk; ePjpkd;w Mizah; mwpf;ifAk; rhd;whtzq;fshf FwpaPL nra;ag;gl;Ls;s epiyapy;> kPz;Lk; tof;F nrhj;Jf;fis mNj ePjpkd;w MizaiuNah my;yJ NtW xU MizaiuNah epakdk; nra;J mstPL nra;af; NfhUk; ,e;j kDit

mDkjpg;gJ

ePjpapd;ghy; cfe;jjhf ,Uf;fhJ vd;W ,e;j ePjpkd;wk; fUJfpwJ. ,Wjpahf ,e;j kD js;Sgb nra;J cj;jutplg;gLfpwJ. kDtpd; jd;ikia fUj;jpy; nfhz;L nryT njhifia jug;gpdh;fNs Vw;f cj;jutplg;gLfpwJ."

¶6In my view, there is no necessity for appointing a fresh Advocate Commissioner as there is no dispute regarding the extent of the property, which was conveyed to the petitioner by the first respondent's mother on 16.11.1994. The petitioner has also not filed a counter claim for mandatory injunction or for declaration. In my view, Advocate Commissioner ought not to have been appointed in I.A.No.555 of 2014 Inspection on 15.02.2020 and the report on 24.11.2020 was also unnecessary in the suit.

¶7Be that as it may, since the report has been filed before the Court, it is open for the petitioner to put appropriate question to the Advocate Commissioner to discredit the report given by the Advocate Commissioner. In case, any contradiction is elicited, it is always open for the Court to appoint an Advocate Commissioner suo motu to ascertain the truth at that stage. Therefore, no interference is warranted.

¶8Therefore, the present Civil Revision Petition stands disposed of with the above observations. No costs. Consequently, connected miscellaneous petition is closed.

28.03.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No sn To

1.The District Munsif Court, Oddanchatirm.

2.The Section Officer Vernacular Section, Madurai Bench of Madras High Court, Madurai. C.SARAVANAN

,J.

SN

28.03.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.03.2023 CORAM THE HON'BLE MR.JUSTICE C.SARAVANAN and C.M.P(MD)No.1154 of 2023 Selvaraj ... Petitioner/Petitioner/ 1st Defendant Vs. 1. Boopathi 2. Naveen ... Respondents/Respondents/ Plaintiffs PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the order passed in I.A.No. 180 of 2021 in O.S.No.152 of 2014 on the file of District Munsif Court, Oddanchatirm. For Petitioner : Mr.S.C Herold Singh