Madras High Court
S.Saravanan vs Mahalakshmi @ G.Rohini on 10 July, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10.07.2014 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(MD)No.1265 of 2014 & M.P.(MD) No.1 of 2014 S.Saravanan .. Petitioner Vs. Mahalakshmi @ G.Rohini .. Respondent Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order dated 08.03.2014 passed in I.A.No.2078 of 2013 in O.S.No.405 of 2011, by the learned Principal District Munsif, Thoothukudi. !For Petitioner : Mr.K.Chengizkhan ^For Respondent : Mr.B.Rajesh Saravanan :ORDER
This Civil Revision Petition has been filed to set aside the order dated 08.03.2014 passed in I.A.No.2078 of 2013 in O.S.No.405 of 2011, by the learned Principal District Munsif, Thoothukudi.
2.The petitioner is the plaintiff, whereas the respondent is the defendant in the suit in O.S.No.405 of 2011 on the file of Principal District Munsif Court, Thoothukudi.
3.The petitioner filed the suit in O.S.No.405 of 2011 before the Principal District Munsif Court, Thoothukudi, for permanent injunction. According to the petitioner, the suit property originally belonged to one Subbiah @ Paulraj. As per the registered Will dated 31.07.1991, the property devolved on the legal heirs of Subbiah @ Paulraj. The share of one of the son was sold by his legal heirs to the petitioner, by the sale deed, dated 26.07.2010, through his Power Agent Santhana Moorthy. From the date of purchase, he is in possession and enjoyment of the property. While so, the respondent interfered with his possession from November 2010 onwards and was tried to cut the trees in the suit property. On 22.07.2011, the respondent with his men trespassed into the suit property and removed the fencing put up by the petitioner and dug the pit to five feet depth. The petitioner gave a complaint to the Sipcot Police Station, on 23.07.2011. The police authorities refused to receive the said complaint on the ground that it is only a civil dispute. Therefore, the petitioner has filed the suit for permanent injunction. The respondent filed written statement denying the allegations made in the plaint. After framing necessary issues, the suit was listed for trial. The trial was commenced and the evidence on behalf of the petitioner was completed. The respondent in her written statement and proof affidavit stated that the petitioner must identify the property of his vendor and must take action against the person, who are in possession of the said property. Then the petitioner filed I.A.No.2078 of 2013 for appointment of Advocate Commissioner to identify the property purchased by him. The respondent opposed the said application on the ground that the petitioner can seek injunction only if he proves his possession of property and he must prove his possession and enjoyment by documents. The respondent also stated that only to drag on the proceedings, the present application has been filed.
4.The learned Judge considered the pleadings and the arguments and the Judgments relied on by the parties, dismissed the application, by the order, dated 08.03.2014. Against the said order, the present civil revision petition is filed.
5.Heard Mr.K.Chengizkhan, learned counsel appearing for the revision petitioner and Mr.B.Rajesh Saravanan, learned counsel appearing for the respondent.
6.The petitioner has come out with the suit stating that he has purchased the property from the legal heirs of Subbiah @ Paulraj, who are the owners of the property. The sale deed is dated 26.07.2010 and according to the petitioner, he is in possession and enjoyment of the property purchased by him by fencing the property. Now after commencement of the trial and after the respondent filed proof affidavit, the petitioner has filed the application for appointment of Advocate Commissioner, for noting down the physical features and measure the property with the help of Surveyors and to file plan.
7.The learned Judge after considering all the materials on record, dismissed the application holding that it is for the petitioner to prove his possession and enjoyment of the suit property through evidence and documents and an Advocate Commissioner cannot prove the same.
8.The learned counsel for the petitioner relied on the Judgment reported in 2009 (5) CTC 706 [Elango Vs. Kasthuri], wherein it has been held in the headnote that the Court alone can gather evidence regarding factum of possession and it cannot be entrust said matter to Advocate Commissioner. Therefore, the Judgment relied on by the learned counsel for the petitioner will not advance the case of the petitioner.
9.The learned counsel for the petitioner has also relied on the Judgment reported in 2011 (3) TNCJ 467 (Mad) (MB) [M.A.Y.Peer Mohamed Abba and Another Vs. S.Sahul Hameed and Others], wherein in paragraph No.8, it has been held as follows:-
"8.The appointment of an advocate commissioner is only for the purpose of getting more clarity on the properties of the parties and to find out whether the properties are one and the same whether they are differently located."
10.In the present case, no clarity is required as it is the case of the petitioner that he is in possession and enjoyment of the property purchased by him. The intention of the petitioner is only to gather evidence through the Advocate Commissioner, which cannot be allowed by Courts. Therefore, there is no reason to interfere with the order, dated 08.03.2014 passed in I.A.No.2078 of 2013 in O.S.No.405 of 2011, by the learned Principal District Munsif, Thoothukudi. Hence, this civil revision petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also dismissed.
To The Principal District Munsif Court, Thoothukudi.