K.Kumarasamy v. N.Thimmanaicker

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.01.2024

CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR and CMP.No.27689 of 2019 1.K.Kumarasamy 2.K.Velusamy ... Petitioners Vs.

N.Timmanaicker

...Respondent

Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and final order dated 25.07.2019 made in IA.No.1295 of 2017 in OS.No.243 of 2017 on the file of the District Munsif Court, Sathyamangalam, by allowing this Revision Petition. For Petitioners : Mr.S.A.Mohamed Mubarak For Respondent : Mr.S.Parthasarathy 1/6

ORDER

This Civil Revision Petition is filed challenging the order passed by the Court below allowing the application filed by the petitioners seeking appointment of Advocate Commissioner to visit the suit property along with Surveyor and note down the physical features and file a report indicating area of encroachment if any.

2. The petitioners herein filed a suit for declaration of title and recovery of possession after removal of the superstructure put up by the respondent by encroaching the portion of the suit item 1 described as item 2 in the plaint plan. Pending suit, the petitioners filed an application for appointment of Advocate Commissioner for local inspection along with Surveyor to find out the encroachment in the suit property. In the plaint as well as affidavit filed in support of this application, it is asserted by the petitioners that the respondents/defendants encroached the portion of the suit item 1 by putting up building thereon and the encroached portion is described as item 2. The said application was opposed by the petitioner by filing counter.

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3. The Court below allowed the application for appointment of Advocate Commissioner on the ground that local inspection by the Commissioner with the help of the Surveyor would reduce the oral and documentary evidence in this case. Aggrieved by the same, the petitioners are before this Court.

4. The learned counsel for the petitioners submitted that the Advocate Commissioner cannot find out the physical possession of the parties and the impugned order passed by the Court below is unsustainable in law. The learned counsel for the petitioners further submitted that the portion of the property was already sold out by the petitioners. Therefore, the suit itself is not maintainable. The petitioners have come to the Court with specific pleading that they are the owners of the suit property and portion of the suit property was encroached by the respondents/defendants by putting up construction and the said portion is described as suit item 2. If the Advocate Commissioner is appointed to measure the suit property with the help of the Surveyor with reference to the title documents of the petitioners/plaintiffs as 3/6

well as the respondents, the same would establish the exact extent of the encroachment, if any. Such an exercise by local inspection will help the Court to decide the real controversy between the parties more precisely and effectively.

5. I do not find any illegality or irregularity in the order passed by the Court below and accordingly, the Civil Revision Petition is dismissed. However, it is clarified that the Advocate Commissioner shall measure the suit property with the help of the Surveyor with reference to the title documents of both the parties. The warrant to the Advocate Commissioner shall be issued by the Court below accordingly. Consequently, connected Miscellaneous Petition is closed.

11.01.2024 Index : Yes / No Internet : Yes / No dna 4/6

To The District Munsif Court, Sathyamangalam.

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S.SOUNTHAR , J.

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