Madras High CourtCRP(MD)/473/2016dismissed

Gurusamy v. Ramasamy

2016-03-02Honourable Ms.Justice V.M.Velumani2 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.03.2016 DATED: 02.03.2016

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P(MD)No.473 of 2016(PD) C.R.P(MD)No.473 of 2016(PD) Gurusamy Gurusamy .. Petitioner/Petitioner/defendant .. Petitioner/Petitioner/defendant Vs.

Vs.

Ramasamy Ramasamy .. Respondent/Respondent/plaintiff .. Respondent/Respondent/plaintiff Prayer:

Prayer: This Civil Revision Petition is filed under Article 227 of This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decretal order the Constitution of India, against the fair and decretal order dated 08.10.2015, made in I.A.No.395 of 2015 in I.A.No.420 of 2013 dated 08.10.2015, made in I.A.No.395 of 2015 in I.A.No.420 of 2013 in O.S.No.146 of 2010, on the file of the District Munsif Court, in O.S.No.146 of 2010, on the file of the District Munsif Court, Virudhunagar.

Virudhunagar.

For Petitioner : Mr.S.Vellaichamy For Petitioner : Mr.S.Vellaichamy

O R D E R

This Civil Revision Petition is filed against the fair and This Civil Revision Petition is filed against the fair and decreetal order 08.10.2015, made in I.A.No.395 of 2015 in decreetal order 08.10.2015, made in I.A.No.395 of 2015 in I.A.No.420 of 2013 in O.S.No.146 of 2010, on the file of the I.A.No.420 of 2013 in O.S.No.146 of 2010, on the file of the District Munsif Court, Virudhunagar.

District Munsif Court, Virudhunagar.

2. The petitioner is the defendant in the Suit. The

2. The petitioner is the defendant in the Suit. The respondent filed a Suit in O.S.No.146 of 2010 for declaration, respondent filed a Suit in O.S.No.146 of 2010 for declaration, recovery of possession and mandatory injunction. The respondent recovery of possession and mandatory injunction. The respondent filed an application in I.A.No.420 of 2013 for appointment of an filed an application in I.A.No.420 of 2013 for appointment of an Advocate Commissioner. The Advocate Commissioner was appointed and Advocate Commissioner. The Advocate Commissioner was appointed and he inspected the property and he filed the report. he inspected the property and he filed the report.

3. According to the petitioner, the Advocate Commissioner

3. According to the petitioner, the Advocate Commissioner did not properly measure the property and he has not filed report, did not properly measure the property and he has not filed report, mentioning correct particulars and measurement. Therefore the mentioning correct particulars and measurement. Therefore the petitioner filed I.A.No.395 of 2015 to set aside the Advocate petitioner filed I.A.No.395 of 2015 to set aside the Advocate Commissioner's report filed in I.A.No.420 of 2013 and for Commissioner's report filed in I.A.No.420 of 2013 and for appointment of fresh Advocate Commissioner to inspect the petition appointment of fresh Advocate Commissioner to inspect the petition schedule property with a direction to measure the buildings of the schedule property with a direction to measure the buildings of the respective parties and note their physical features. respective parties and note their physical features.

4. The respondent filed counter affidavit and stated that

4. The respondent filed counter affidavit and stated that the Advocate Commissioner inspected the property and measured the the Advocate Commissioner inspected the property and measured the property with the help of the Surveyor and VAO, based on the property with the help of the Surveyor and VAO, based on the Government records. The petitioner did not produce any records at Government records. The petitioner did not produce any records at the time of inspection. The learned Judge considering all the the time of inspection. The learned Judge considering all the materials on record, dismissed the application. Against the materials on record, dismissed the application. Against the https://hcservices.ecourts.gov.in/hcservices/

dismissal order, the petitioner has come up with the present Civil dismissal order, the petitioner has come up with the present Civil Revision Petition.

Revision Petition.

5. The learned counsel for the petitioner submitted that

5. The learned counsel for the petitioner submitted that the learned Judge erred in dismissing the application filed under the learned Judge erred in dismissing the application filed under Order 26 Rule 10 without assigning any valid reasons. The Advocate Order 26 Rule 10 without assigning any valid reasons. The Advocate Commissioner did not reveal the physical features of the property Commissioner did not reveal the physical features of the property and therefore it has to be scratched. The learned Judge failed to and therefore it has to be scratched. The learned Judge failed to see that the Advocate Commissioner has not correctly submitted the see that the Advocate Commissioner has not correctly submitted the real lie of the petitioner's property. The petitioner is not real lie of the petitioner's property.

The petitioner is not admitting the Government document and classification of the admitting the Government document and classification of the property in the revenue records. The learned Judge erred in property in the revenue records. The learned Judge erred in holding that the petitioner can cross-examine the Government holding that the petitioner can cross-examine the Government officials with regard to the Government documents. The Advocate officials with regard to the Government documents. The Advocate Commissioner ought not have relied on the Government documents and Commissioner ought not have relied on the Government documents and prayed for allowing this Civil Revision Petition. prayed for allowing this Civil Revision Petition.

6. Heard the learned counsel appearing for the petitioner

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

7. From the records it is seen that the Advocate

7. From the records it is seen that the Advocate Commissioner inspected the property in question along with the Commissioner inspected the property in question along with the help of the surveyor and VAO and measured the property in help of the surveyor and VAO and measured the property in question, based on the Government records and filed his report. question, based on the Government records and filed his report. The petitioner has not made any allegations against the Advocate The petitioner has not made any allegations against the Advocate Commissioner. The petitioner has filed objection to the Advocate Commissioner. The petitioner has filed objection to the Advocate Commissioner's report. The grievance of the petitioner is that the Commissioner's report.

The grievance of the petitioner is that the Advocate Commissioner ought not have relied on the Government Advocate Commissioner ought not have relied on the Government records, when the petitioner is disputing the same. The petitioner records, when the petitioner is disputing the same. The petitioner filed an application to set aside/scrap the report of the Advocate filed an application to set aside/scrap the report of the Advocate Commissioner. The petitioner has right to cross-examine the Commissioner. The petitioner has right to cross-examine the Surveyor and VAO, who were assisted the Advocate Commissioner at Surveyor and VAO, who were assisted the Advocate Commissioner at the time of measuring the property. The learned Judge considering the time of measuring the property.

The learned Judge considering all the aspects dismissed the application by giving cogent and all the aspects dismissed the application by giving cogent and valid reasons. Hence, there is no irregularity or illegality in valid reasons. Hence, there is no irregularity or illegality in the said order, warranting interference of this Court. Therefore, the said order, warranting interference of this Court. Therefore, the Civil Revision Petition is liable to be dismissed. the Civil Revision Petition is liable to be dismissed.

8. Accordingly, this Civil Revision Petition is dismissed.

8. Accordingly, this Civil Revision Petition is dismissed. No Costs.

No Costs.

Sd/ Sd/ Assistant Registrar (C O Dept) Assistant Registrar (C O Dept) /True Copy/ /True Copy/ Sub Assistant Registrar Sub Assistant Registrar To To The District Munsif, Virudhunagar.

The District Munsif, Virudhunagar.

CN/JGB-DP/23.03.2016/2P-2C CN/JGB-DP/23.03.2016/2P-2C C.R.P(MD)No.473 of 2016(PD) C.R.P(MD)No.473 of 2016(PD) https://hcservices.ecourts.gov.in/hcservices/ 02.03.2016 02.03.2016