V.Kubendran vs Arulmighu Balasubramanian Swami on 18 June, 2015

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Madras High Court

V.Kubendran vs Arulmighu Balasubramanian Swami on 18 June, 2015

Bench: K.K.Sasidharan

       

  

   

 
 
  Madurai.?BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED:  18.06.2015  

CORAM   

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN            

C.R.P (PD)(MD)No.207 of 2014  
and 
M.P(MD).No.1 of 2014  

V.Kubendran                                     ... Petitioner
Vs 

Arulmighu Balasubramanian Swami   
Koil, Pattukottai rep. by its           
Hereditary Trustees
1.Velayutha Pandaram  
2.Veerapathiran
3.Durairaj
4.Ravi
5.Anjammal  
6.Veerakumari 
7.Kudiarasu 
8.Ranjini devi  
(The Respondents 3 to 8 were 
set exparte before the
Court below.  Therefore the
Respondents 3 to 8 may be  
given up).                                      ... Respondents

Prayer
        Civil Revision Petition filed under Article 227 of the
Constitution of India against the fair and decretal order dated 10.1.2014 in
I.A.No.41/2011 in A.S.No.3/2011 on the file of Subordinate Judge,
Pattukottai.

!For Petitioner          :  Ms.S.Vijayashanthi
^For Respondents         :  Mr.N.Balakrishnan
                            for RR 1 and 2
                            RR3 to 8-Given up (vide EB) 
:ORDER

The petitioner filed an Obstruction Petition in E.P.No.40 of 2006 before the District Munsif Court, Pattukkottai. The execution application in E.A.No.14 of 2007 was dismissed by the Executing Court. The said order was challenged before the Appellate Court in A.S.No.3 of 2011.

2.The petitioner, during the currency of the appeal, filed an application in I.A.No.41 of 2011 seeking appointment of Advocate Commissioner. The application was dismissed by the learned Appellate Judge. The order dated 10 January 2014 is under challenge in this Civil Revision Petition.

3.Heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the respondents.

4.The petitioners filed the application in I.A.No.41 of 2011 only on the basis of the report submitted by the Court Amin, on the ground that delivery has already been taken and there were no huts in the property in question.

5.The learned Trial Judge has given a finding that the petitioner has already produced relevant documents to prove his possession and as such, there is no question of issuing a commission to prove the factum of construction of houses in the property. The report submitted by the Court Amin appears to have given the cause of action to the petitioner to file the application.

6.The petitioner wanted to prove that he is residing in the suit property by constructing a house. According to the petitioner, there are other six occupants, who are also in enjoyment of the property. The petitioner, in order to highlight the fact that there are occupants in the property in question filed I.A.No.41 of 2011

7.In view of the background facts, I am of the view that the petitioner should be given an opportunity to prove the existence of residential houses in the property in question.

8.In the result, the order dated 10 January 2014 is set aside. The application in I.A.No.41 of 2011 is allowed.

9.The learned Appellate Judge is directed to dispose of the appeal in A.S.No.3 of 2011 as expeditiously as possible.

10.The Civil Revision Petition is allowed as indicated above. No costs. Consequently, connected miscellaneous petition is closed.

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