Kumar, S/O Late Sathamuthu v. Summanthra
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED 06.01.2017
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P(MD)No.20 of 2017 and C.M.P(MD)No.78 of 2017 1.Kumar 2.Selvi 3.Ganesan 4.Rajavelu .. Petitioners/Petitioners/Defendants -vsSummanthra .. Respondent/Respondent/Plaintiff PRAYER:- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order, dated 01.11.2016 passed in I.A.No.30 of 2016 in O.S.No.497 of 2010 on the file of the I-Additional District Munsif Court, Tiruchirappalli.
For Petitioners : Mr.R.Subramanian
ORDER
The petitioners have filed the above Civil Revision Petition against the fair and decreetal order, dated 01.11.2016 made in I.A.No.30 of 2016 in O.S.No.497 of 2010 on the file of the I-Additional District Munsif Court, Tiruchirappalli. 2.The petitioners are the defendants and the respondent is the plaintiff in O.S.No.497 of 2010 on the file of the I-Additional District Munsif Court, Tiruchirappalli. 3.The respondent/plaintiff has filed the abovesaid suit for declaration, recovery of possession and mandatory injunction to remove the construction put up by the petitioners. The petitioners/defendants filed the written statement as early as in the year 2010 and contesting the suit. When the suit was listed for trial, in the said suit, the petitioners/defendants filed an application in I.A.No.30 of 2016 under 26 Rule 9 and Section 151 of C.P.
C., on the file of the I-Additional District Munsif, Tiruchirappalli, for appointment of an Advocate Commissioner to inspect the suit property; note down the physical features; to take measurements and to note down the existence of the buildings and their age, amenities, to draw a plan and to submit his report with the assistance of a qualified Surveyor and Engineer.
4.According to the petitioners/defendants, they have put up construction long ago, obtained electricity connection and the respondent/plaintiff has not properly described the suit property and there is a dispute with regard to the identity of the suit property.
5.The respondent/plaintiff filed counter-affidavit and denied all the averments made by the petitioners and submitted that there is no dispute with regard to the identity of the suit property and prayed for dismissal of the application.
6.The learned Judge, considering the averments made in the affidavit and counter-affidavit, dismissed the application holding that the earlier application filed by the respondent/plaintiff in I.A.No.309 of 2010 for appointment of an Advocate Commissioner to note down the physical features of the suit property and also to appoint the commissioner to measure the suit property with a qualified Surveyor was dismissed on merits on 26.07.2012 and the present application in I.A.No.30 of 2016 is filed only to collect evidence and there is no dispute with regard to the identity of the suit property. Against the said order of dismissal, the present Civil Revision Petition is filed.
7.The learned counsel appearing for the petitioners/defendants submitted that the learned Judge is not correct in holding that there is no dispute with regard to the identity of the suit property, since the petitioners/defendants have specifically stated that the respondent/plaintiff has not properly described the suit property. The earlier application in I.A.No.309 of 2010 filed by the respondent/plaintiff is to find out the encroachment alleged to have been made by the petitioners/defendants, whereas the present application is entirely for the different purpose. The appointment of an Advocate Commissioner and his report with regard to the suit property would reduce the work of the Court and prayed for allowing the Civil Revision Petition.
8.Heard the learned counsel for the petitioners and perused the materials available on record.
9.The respondent/plaintiff has filed the abovesaid suit claiming the relief of declaration, recovery of possession and mandatory injunction to remove the construction put up by the petitioners. It is for the respondent/plaintiff to prove his case especially with regard to description of the suit property. The learned Judge considering the averments made in the plaint held that the respondent/plaintiff is claiming declaration and recovery of possession with regard to the entire suit property. In the circumstances, the contention of the petitioners/defendants that there is dispute in the identification of the suit property is not correct. The learned Judge has taken note of the dismissal of
I.A.No.309 of 2010 filed by the respondent/plaintiff for appointment of an Advocate Commissioner with regard to the very same property. The learned Judge, considering the materials on record, has concluded that the petitioners are trying to collect evidence to substantiate their claim. The learned Judge has exercised his jurisdiction in proper perspective and dismissed the application and there is no illegality or irregularity in the order passed by the I-Additional District Munsif, Tiruchirappalli, warranting interference of this Court. Hence, this Civil Revision Petition is liable to be dismissed.
10.Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
Sd/- Assistant Registrar(CS-I) /True Copy/ Sub Assistant Registrar To The I-Additional District Munsif, Tiruchirappalli.
Copy to:
The Section Officer, Record Keeper, VR Section, Madurai Bench.
+1 cc to Mr.A.Subramanian, SR.No:1291 Ps AE/RR/BS/31.01.2017/3p/4c C.R.P(MD)No.20 of 2017 and C.M.P(MD)No.78 of 2017 06.01.2017