Madras High Court
M.Jayasingh Pandiarajan vs Rajalekshmi @ Pappa :Respondent on 24 June, 2019
Author: S.S.Sundar
Bench: S.S.Sundar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.06.2019
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
C.R.P.(PD)(MD)No.2184 of 2012
and
M.P.(MD)No.1 of 2012 and C.M.P.(MD)No.10593 of 2017
M.Jayasingh Pandiarajan :Petitioner
vs.
Rajalekshmi @ Pappa :Respondent
PRAYER: Civil Revision Petition filed under Article 227 of
Constitution of India, to set aside the order and decree, dated
21.09.2012 made in I.A.No.581 of 2012 in O.S.No.260 of 2011 on
the file of the I Additional District Munsif Court, Nagercoil.
For Petitioner : Mr.T.S.R.Venkata Ramana
For Respondent : Mr.K.P.Narayana Kumar
***
http://www.judis.nic.in
2
ORDER
This Civil Revision Petition is filed by the defendant in the suit in O.S.No.260 of 2011 pending on the file of the I Additional District Munsif Court, Nagercoil.
2.The respondent herein, as plaintiff, has filed the suit in O.S.No.260 of 2011 for declaration that the plaint schedule property is a pathway connecting the plaintiff's house with the Kariakaravilai Main Street and for consequential injunction. Even in the prayer, the width of pathway is referred to. The suit schedule reveals that the suit pathway lies in R.S.No.D8/53 and the extent is above 500 sq.ft.
3.It is the case of the plaintiff/respondent that the suit pathway lies in a common pathway and that the defendant has no right to encroach into the suit schedule property or reduce the width of the pathway. Apprehending that the defendant may encroach into the suit property and prevent the plaintiff from enjoying the suit pathway, the suit came to be filed.
http://www.judis.nic.in 3
4.The revision petitioner filed a written statement, specifically denying the averments made in the plaint and particularly, with reference to such pathway right to the plaintiff to reach her property. The pathway shown in the plaint plan is also disputed. Though it is stated that the plaintiff has purchased the property in R.S.No.D8/53, it is specifically stated in the written statement that the plaintiff has a way through R.S.No.D8/51. It is also stated that the width of the pathway on the western side is 2 feet and eastern side is 7 feet, having 110 feet length. The nature of dispute appears to be with regard to the existence of pathway and the manner and its enjoyment, apart from the right of plaintiff to use the pathway to reach her property. Though the plaintiff claims that the suit pathway lies in R.S.No.D8/53, the existence of the pathway in R.S.No.D8/51 is also an issue.
5.It is in the said circumstances, the revision petitioner filed an application in I.A.No.581 of 2012 for appointment of Advocate Commissioner to note down certain physical features. This application was opposed by the respondent. In the counter, it was stated by the respondent that the the appointment of Advocate Commissioner is quite irrelevant and it is not with reference to the http://www.judis.nic.in 4 plaint schedule property. It is also the case of the respondent/plaintiff that the right of the pathway is given exclusively to the plaintiff and that the defendant is likely to interfere with the rights of the plaintiff's pathway by developing the case with the help of Municipal Surveyor. The plaintiff further wanted the Court to give appropriate direction, in case of allowing the application by permitting the Advocate Commissioner to note down all the points, that may be submitted by the plaintiff at the time of Commissioner's inspection.
6.The lower Court dismissed the application mainly on the ground that the revision petitioner seeks measurement to be done by the Advocate Commissioner in different survey number than the survey number, wherein, the suit property is located. In the order, the lower Court observed that the respondent/plaintiff has denied that a separate pathway is available to the respondent's property and reiterated the existence of suit pathway as described in the plaint.
7.Aggrieved by the order of lower Court, dismissing the petition for appointment of Advocate Commissioner, the present petition has been filed by the defendant in the suit. http://www.judis.nic.in 5
8.In short, the trial Court failed to see that there is a dispute with regard to the existence of pathway and its location with reference to survey numbers and boundaries. The specific case of the respondent that there is no separate pathway available to the respondent in S.No.D8/51 is also noted by the lower Court as reason to dismiss the petition filed by the revision petitioner.
9.This Court is unable to agree with reason stated by the trial Court. The dispute is with regard to the existence and location with reference to survey number, boundaries and measurements. Having regard to the nature of dispute, unless the suit survey number and adjacent survey numbers, with reference to boundary description given in the suit property, is identified on ground, irrespective of the fact whether the property is located within the suit survey number or not, the Court may not be able to appreciate the objection/defence raised by the revision petitioner in the written statement.
10.Since object of appointment of Advocate Commissioner is to obtain evidence, so as to decide the issue more accurately, this Court is unable sustain the view taken by the lower Court, http://www.judis.nic.in 6 dismissing the petition filed by the revision petitioner. As a result, this petition is allowed and the order passed by the I Additional District Munsif, Nagercoil, made in I.A.No.581 of 2012 in O.S.No. 260 of 2011, dated 21.09.2012, is set aside and the petition in .A.No. 581 of 2012 in O.S.No.260 of 2011 for appointment of Advocate Commissioner stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.
Internet : Yes/No 24.06.2019
Index : Yes/No
cmr
To
The I Additional District Munsif, Nagercoil. http://www.judis.nic.in 7 S.S.SUNDAR, J.
cmr C.R.P.(PD)(MD)No.2184 of 2012 24.06.2019 http://www.judis.nic.in