Chelladurai v. Puvanenthiran

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED 09.01.2017

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P(MD)No.24 of 2017 and C.M.P(MD)No.101 of 2017 Chelladurai .. Petitioner/Petitioner/ 1st Defendant -vs1.Puvanenthiran 2.P.Marriammal 3.K.Marriammal .. Respondents/Respondents/ Plaintiffs PRAYER:- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order passed in I.A.No.216 of 2016 in O.S.No.104 of 2012, dated 23.09.2016 on the file of the District Munsif Court, Kovilpatti. For Petitioner : Mr.F.X.Eugene

ORDER

The petitioner has filed the above Civil Revision Petition against the fair and decreetal order passed in I.A.No.216 of 2016 in O.S.No.104 of 2012, dated 23.09.2016 on the file of the District Munsif Court, Kovilpatti.

2.The petitioner is the first defendant and the respondents are the plaintiffs in the suit in O.S.No.104 of 2012 on the file of the District Munsif Court, Kovilpatti. The plaintiffs filed the abovesaid suit for declaration and injunction. The petitioner filed written statement and contesting the suit. The petitioner/first defendant filed an application in I.A.No.216 of 2016 for appointment of an Advocate Commissioner to inspect the suit property and to file his report.

3.According to the petitioner, the respondents obtained building permission for the Survey No.590/1B, but constructed their residential house at Survey No.540/2A belonging to the petitioner. The petitioner summoned the planning permit for Survey No.590/1B through the President, Pandamangalam Panchayat. Suppressing this fact, the respondents have filed the abovesaid suit stating that Survey No.590/2A is a vacant land.

4.The respondents filed counter-affidavit and contended that earlier application filed by the petitioner for the very same relief was dismissed on merits in I.A.No.765 of 2015, dated 16.07.2015. The petitioner has not initiated any proceedings challenging the said order and the said order has become final. In the circumstances, the present application is not maintainable and prayed for dismissal of the application.

5.The learned Judge, considering all the averments and taking note of the earlier application filed for appointment of an Advocate Commissioner, dismissed the application that it has been filed for the very same relief. Against the said order, the petitioner has come up with the present Civil Revision Petition. 6.The learned counsel appearing for the petitioner submitted that whether the respondents have constructed the building in the suit property or not is the issue to be decided in the suit. The petitioner is disputing the fact that the respondents have put up the building in the suit property belonging to him. On the other hand, it is the case of the petitioner that the respondents have put up the building in Survey No.590/2A belonging to the petitioner.

In the circumstances, the identity of the property is in dispute and therefore, only when the Advocate Commissioner is appointed to inspect the property and file a report, the issue could be decided and if any decree is passed without identification, the same cannot be executed. Necessity for appointment of an Advocate Commissioner has arisen only after completion of evidence let in by the parties. The learned Judge has failed to consider all these facts and dismissed the application, which is contrary to law.

7.Heard the learned counsel for the petitioner and perused the materials available on record.

8.The petitioner is the first defendant. He has contended that the respondents obtained permission for the land in Survey No.590/1B and constructed the residential house at Survey No.590/2A belonging to the petitioner. Therefore, the identity of the property is in dispute. The petitioner on an earlier occasion filed an application in I.A.No.765 of 2015 for appointment of an Advocate Commissioner to inspect the property and to file his report. The said application was dismissed on merits. The petitioner has not disputed the said fact and that no proceedings were initiated by him and therefore, the said order has become final. The suit is at the stage of arguments. After completion of evidence let in by both the parties, the petitioner has filed the present application.

In the circumstances, the learned Judge has properly exercised his jurisdiction conferred on him and dismissed the present application. There is no error or irregularity in the order passed by the District Munsif Court, Kovilpatti, warranting interference of this Court. Hence, this Civil Revision Petition is liable to be dismissed.

9.Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.

Sd/ Assistant Registrar(CO) /TRUE COPY/ Sub Assistant Registrar To The District Munsif Court, Kovilpatti.

Copy to:

The Section Officer VR Section, Madurai Bench Of Madras High Court, Madurai.

+1cc to M/s.F.X.Eugene, Advocate, in SR No.1776 ps AAM MR VB 31.01.2017 3P 4C C.R.P(MD)No.24 of 2017 09.01.2017