Madras High Court
Ganeshan vs L.Krishnan on 10 August, 2022
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.R.P.(PD)No.279 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 10.08.2022
CORAM :
THE HON'BLE Mrs.Justice J.NISHA BANU
C.R.P.(PD)No.279 of 2019
and C.M.P.No.2113 of 2019
1. Ganeshan,
S/o Chennan
2. Ranjani
W/o Ganeshan
3. Pallaki,
W/o Channan .. Petitioners
Vs
1. L.Krishnan,
S/o Late Lingan,
2. Sumathi,
w/o L.Krishnan ..Respondents.
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India against the fair and decreetal order dated 10.10.2018
passed in I.A.No.74 of 2018 in O.S.No.61 of 2017 on the file of the learned
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C.R.P.(PD)No.279 of 2019
District Munsif, Coonoor and to set aside the same.
For Petitioners : Mr.T.R.Rajaraman
for Mr.A.B.Reehana Begum
For Respondents : Mr.A. Immanuel
ORDER
This Civil Revision Petition has been filed as against the fair and decreetal order dated 10.10.2018 passed in I.A.No.74 of 2018 in O.S.No.61 of 2017 on the file of the learned District Munsif, Coonoor.
2. The brief facts of the case are as follows:
The respondents have filed a suit for permanent injunction and the petitioners have also filed a detailed written statement contesting the same. The father and mother of the petitioners built a house in Government Natham in S.No.964/6, New S.No.1755/22 of Ketti Village and have been living there for over 30 years. In recognition of possession, a natham patta has been issued in the name of the petitioners' mother for 2 cents wherein their house situates. The respondents, while constructing a house in ____________ Page 2 of 7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.279 of 2019 S.No.963/11, has encroached upon a portion of the petitioners' land when they were gone out of station. They have encroached nearly ¼ cents of the petitioners' land and put up illegal construction. The petitioners have also filed a counter claim in the suit. In order to prove the encroachment and illegal construction, the petitioners filed I.A.No.74 of 2018 for appointment of Advocate Commissioner to inspect the suit schedule property with the help of a qualified surveyor. But the learned District Munsif, dismissed the said petition. Hence, this C.R.P.
3. Heard the learned counsel for the petitioners and the learned counsel for the respondents and perused the materials available on record.
4. Learned counsel for the petitioners would submit that the application for appointment of Advocate Commissioner is neither for collecting evidence nor for ascertainment of possession. He would further submit that unless a Commissioner visits and note down the physical features of the respective properties of parties, the Court will not be in a position to come to a conclusion and pass appropriate judgment. Hence, the application has to be allowed.
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5. On the contrary, the learned counsel for the respondents would submit that the suit is in respect of property in New Survey No.963/11 in patta No.119 of Ketty Village, but the counter claim of the petitioners is in different Survey No.964/6 of Ketty Village which belongs to Government land and not belonging to the petitioners. Moreover, the petitioners have not made the State Government of Tamil Nadu as party to the petition. As per Swachh Barath Mission, Rs.12,000/- was allotted to the respondents to construct toilet in the said place in the year 2015-2016. If the alleged land belongs to the petitioners, the Government would not have allowed to construct toilet in the said place and the toilet constructed was duly inspected by the Ketty Panchayat Government officials and after thorough inspection and all other formalities, the Government fund was granted and the petitioners have no right to claim or demolish the same. The said petition is not maintainable and the trial court has rightly dismissed the same.
6. Perusal of the records show that the relief sought for in the suit is for permanent injunction. The possession of the petitioners in S.No.964/6 ____________ Page 4 of 7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.279 of 2019 of Ketty Village is not in dispute. When the respective parties deny the lie and location of disputed construction and specifically state that the construction is within their property and there is no encroachment, the nature of dispute could be resolved only if the exact location of construction is brought to the knowledge of Court, which cannot be done except by appointment of Advocate Commissioner. Therefore, this Court is of the view that the details of encroachment and the extent of construction can be ascertained only by appointing an Advocate Commissioner and it will not amount to collection of evidence as observed by the learned District Munsif. Thus, the learned District Munsif ought to have allowed the application seeking appointment of Advocate Commissioner.
7. Under such circumstances, this Court is inclined to allow the Civil Revision Petition. Accordingly, the Civil Revision Petition is allowed and the fair and decretal order passed by the learned District Munsif in I.A.No.74 of 2018 in O.S.No.61 of 2017 dated 10.10.2018 is set aside. The trial Court is directed to appoint an Advocate Commissioner within a period of two weeks from the date of receipt of a copy of this order, by directing ____________ Page 5 of 7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.279 of 2019 the Advocate Commissioner to inspect the property and file a report within a period of two weeks thereafter. On filing of such report, the trial Court shall dispose of the suit within a further period of three months thereafter. No costs. Consequently, connected miscellaneous petition is closed.
10.08.2022 Index :Yes/No Speaking/Non-speaking order vsi To The District Munsif, Coonoor.
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