Madras High Court
V. Nagaraj vs S.V. Thirumal on 31 January, 2023
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
CRP.No. 1947 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.01.2023
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
CRP.No. 1947 of 2021
and
CMP.No. 15089 of 2021
V. Nagaraj ... Petitioner
Versus
S.V. Thirumal .. Respondent
Civil Revision Petition is filed under Article 227 of the Constitution
of India, praying to set aside the fair and decreetal order dated 16.04.2016
made in I.A.No. 169 of 2016 in O.S.No. 30 of 2016 on the file of the
District Munsif Court, Gobichettipalayam.
For Petitioner : Ms.Zeenath Begum
For Respondent : Mr. R. Swarnavel
----
ORDER
This Civil Revision Petition has been filed to set aside the fair and decreetal order dated 16.04.2016 made in I.A.No. 169 of 2016 in O.S.No. 30 of 2016 on the file of the District Munsif Court, Gobichettipalayam. 1/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021
2. The revision petitioner herein is the plaintiff and the respondent herein is the defendant in the original suit.
3. The case of the revision petitioner/plaintiff is that he has filed the suit in O.S.No. 30 of 2016 before the District Munsif Court, Gobichettipalayam, for declaration declaring that the title of the plaintiff to the suit property and permanent injunction from in any way interfering with the peaceful possession and enjoyment of the same.
4. The defendant has contested the suit by filing written statement and denied all the averments made in the plaint.
5. During the pendency of the suit, the petitioner/plaintiff has filed I.A.No.169 of 2016 under Order 26 Rule 9 read with Section 151 of CPC., seeking for appointment of Advocate Commissioner to note down the physical features in and around the suit property. After perusing the records, the Court below dismissed the application by order dated 16.04.2021. Challenging the said order, the petitioner/plaintiff has filed this Civil Revision Petition.
2/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021
6. According to the petitioner/plaintiff, originally, the suit in O.S.No.169 of 2016 is filed by the petitioner/plaintiff for declaring that the title of the plaintiff to the suit property and also for restraining the defendant from in any manner interfering with the peaceful possession and enjoyment of the suit property. The suit property absolutely belongs to the petitioner and he is in his possession and enjoyment of the same. Now, the respondent claims title over the same based on the erroneous "Natham Survey" and false documents in his favour. The report of the Advocate Commissioner will bring a clear picture regarding the suit property before the Court, particularly the sun-shade which extends over the suit property and there are measurements on all four sides of his house and the respondent's house will reduce the voluminous evidence during trial. Therefore, the above Civil Revision Petition has to be allowed.
7. On the other hand, the petitioner claims title to his property as an ancestral one and it was purchased by his grandfather on 11.06.1984 and subsequently, there was partition by way of family arrangement as per Release Deed dated 10.12.2012. The petitioner has purchased the property without any specific survey number. Now, the petitioner is claiming more 3/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021 than what he has derived by viture of the sale deed dated 09.06.1984 and the release deed dated 07.12.2012. The petitioner has encroached an extent of 1-1/2 breadth and 10 length over the respondent's property in S.F.No.38/42. The petitioner has no title or interest in S.F.No.38/42. The petitioner has not any title or right over the petition property even at the time of resurvey proceedings. The predecessor in title has purchased the property with the identification of survey number, and the boundary of the property, as there no physical measurements were carried out at the time of sale. Similarly, the mother of the respondent has purchased based on the boundary and survey record and she has not measured the property at the time of her purchase. The petitioner's predecessors-in-title were in possession and enjoyment of their property with the measurement 19.14' East West on the North and 20.46 East West on the South. Ever since from the date of settlement by his mother, the respondent is in possession and enjoyment of SF.No.38/42.
8. Counter statement is filed by the respondent/defendant, wherein it has been stated that the petitioner claims title to his property as an ancestral one and his grandfather purchased it on 11.06.1984 and 4/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021 subsequently, there was partition by way of family arrangement as per release deed dated 10.12.2012. The petitioner purported to have purchased the property without specific survey number with the following boundary:-
bghd;dk;khs; tPl;Lf;Fk; tlf;F. fpHnky; rnuh$pdp tPjpfF ; k; bjw;F. tp/gp/bu';fuh$;. ehfuh$; tpirj;jwp Tlj;jw;Fk; nkw;F. rPu';f brl;oahh; tPl;Lf;Fk; tlf;F. fpHnky; ,Ug[wKk; 51" bjd;tly; ,Ug[wKk; 38 bkhj;j gug;gst[ 1938 rJuo/ ,jpy; bghJtpy; 2-3 g';F. 1292 rJuo ,pdpnkw;bfhz;L tpw;gth;fSf;F nkw;go fhiyapy; g';F ghj;jpak; ,y;iy/ But has not placed anything about the petition-property. Further, it is submitted that the alleged partition by way of family arrangement as per release deed dated 10.12.2012 will throw much light on the petitioner's dark, cloudy and fraudulent case. The survey number boundaries and extent are given as below in the said document.
"Fg;gr[ hkp tifawh fhypaplj;Jf;Fk; rpfF ; uh$; tPl;Lf;Fk; tlf;F. gpughtjp fhypaplj;Jf;Fk; fpHf;F. rnuh$pdp tPjpfF ; k; bjw;F/ ehsJ njjpapy; rpfF ; uh$;. bt';fl;uhk brl;oahhplk; fpuak; bgWk; tPl;Lf;Fk; nkw;F. fpHnky; ,Ug[wKk; 30 bjd;tly; ,Ug[wKk; 39" vGjp th';Fgthpd;
g';F ghj;jpak; bghJtpy; tifapy; 1-8 ghfk; vGjpfb; fhLg;gth;fspd; g';F ghj;jpak; bghJtpy; 7-8 g';F ,jd; rh;nt vz;/38-43/
9. It is also seen that the petitioner is claiming more than what has 5/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021 been derived by virtue of the sale deed dated 09.06.1984 and the release deed dated 07.12.2012. In fact, the petitioner has carefully avoided to give measurements of the property derived by him through the above said deeds in the petition, which is drafted with the sale purchase of misguiding the Court and to obtain the illegal gain. The respondent submitted that the property given in the petition schedule is in S.F.No. 38/42 and the petitioner or his alleged predecessors-in-title were and are not having any title, right, interest or possession over the same at any point of time. The petitioner has no locus-standi to claim any right over the petition property which is the absolute possession of the respondent. In fact, the petitioner has encroached an extent of 1 1/2 breath and 10 length over the respondent's property in SF.No. 38/42.
10. The learned counsel for the revision petitioner contended that the trial Court ought to have exercised the jurisdiction vested in it, and allowed the application filed by the petitioner herein under Order 26 Rule 9 CPC on the sole ground that the dispute is regarding the encroachment, which can be found out only by appointing an Advocate Commissioner. The trial Court has failed to see that the respondent himself has stated in his written 6/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021 statement, at the time of sale, that the properties were not measured, and therefore, only if a Commissioner is appointed, the physical features of the property and encroachments made can be identified. He further contended that the Court below failed to see that 2-1/2 sqft vacant space belongs to the petitioner herein which was wrongly included in SF.No.38/42 and instead of SF.No.38/43, it can be identified only if a Commissioner is appointed and measurement is made. He prays to appoint a Commissioner to note down the physical features of the suit property as well as the adjoining property of the petitioner and of the respondent on all four sides.
11. The respondent claims right over the extent of land in dispute. It has to be seen as to whether the land has to be re-sureyed by the Government at the time of sale. There is no dispute between the possession and resurvey the property, which cannot be measured. Both parties are directed to show the extent of land to be surveyed. Accordingly, the documents of the petitioner as well as the respondent be perused in line with the Town Register. The Head Survyer of the Municipality of Sathyamangalam, shall measure the property in question and proper report be submitted with the aid of the Taluk Surveyor. 7/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021
12. On a further perusal of the records, it is seen that the petitioner/plaintiff is seeking for appointment of an Advocate Commissioner to note down the physical features along with plan and measurements. The boundaries of the property in question have not been clearly stated and the grandfather purchased the property on 11.06.1984 and in partition and family arrangement dated 10.12.2012, there is no specific survey number mentioned and there was only boundary. Moreover, the property in question being undivided one, without producing title deeds, the petitioner cannot speculate his contention based upon the plaint schedule property alone. Moreover, the defendant has alleged that the suit property in S.No.38/42 does not belong to the plaintiff or his predecessor-in-title. Furthermore, the defendant contended that the plaintiff has encroached the property of the defendant about 10 x 1/2 feet over the land. It is also seen that the property has been re-surveyed in the year 1982 itself. But, without questioning the same, the present suit has been within three years and the right of the plaintiff would become time barred. Therefore, the plaintiff has no locus-standi to file the suit for re- survey. The plaintiff, without seeking survey commission, has merely 8/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021 asked for physical features of the property with measurement with the help of Surveyor, which is necessary for deciding the suit. Without fixing the boundaries of the suit property, based upon the title deeds with the aid of Surveyor, appointing the Commissioner to note down the physical features, is warranted one. Therefore, in the suit for declaration, the measurement with survey number is essential for the purpose of deciding the crux of the case. Therefore, it is essential and necessary for appointing Advocate Commissioner to note down physical features of the suit property, as sought for by the plaintiff.
13. Taking into account the above facts and circumstances of the case, the trial Court is directed to appoint an Advocate Commissioner (Senior) to inspect, measure and note down the physical features of the suit property and submit a detailed report. The remuneration of the Advocate Commissioner has to be fixed by the trial Court. After receiving the Advocate Commissioner's Report, the trial Court is directed to dispose of the suit in O.S.No.30 of 2016 as expeditiously as possible.
14. With the above observations and directions, the Civil Revision 9/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021 Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.
31.01.2023 msm Speaking Order: Yes/No Neutral Citation : Yes/No To
1. The District Munsif, Gobichettipalayam.
2. The Section Officer, V.R.Section, High Court, Madras. 10/11 https://www.mhc.tn.gov.in/judis CRP.No. 1947 of 2021 V.BHAVANI SUBBAROYAN, J.
msm CRP.No. 1947 of 2021 31.01.2023 11/11 https://www.mhc.tn.gov.in/judis