Madras High Court
Abu Baker vs C.R.Vinayagam on 12 January, 2022
Author: R.Subramanian
Bench: R.Subramanian
C.R.P(PD)No.28 of 2022
and CMP.No.188 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P(PD)No.28 of 2022
and
CMP.No.188 of 2022
1.Abu Baker
2.Meharunnnisha ..Petitioners
Vs.
C.R.Vinayagam
Represented by his Power Agent,
Mohemmed Haniba ..Respondent
Prayer: Civil Revision Petition filed under Section 115 Sub-Section 1(C) of
CPC., against the petitioner and order dated 22.10.2021 passed in
IA.No.703 of 2019 in OS.No.84 of 2017 on the file of the learned Additional
District Munsif Judge, Tiruppur.
For Petitioners : Mr.N.Shanmuga Thayumanavan
1/4
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.28 of 2022
and CMP.No.188 of 2022
ORDER
The petitioner challenges the order appointing Commissioner to note down physical features and also to measure the property.
2.The suit in OS.No.84 of 2017 has been filed by the respondent seeking mandatory injunction, directing removal of encroachments made by the defendants in the suit property. Prayer for possession of the encroached portion is also made. The plaintiff sought for appointment of a Commissioner to inspect the property, measure the same with the help of a Taluk Surveyor and note down the physical features. In the affidavit filed in support of the petition, it was claimed that such an inspection was absolutely necessary to prove the actual encroachment by the defendants, since the defendant claimed that they have not encroched upon the plaintiff's property. The learned Trial Judge, upon consideration of the material that were available before him concluded that appointment of a Commissioner would in fact reduce voluemenous oral evidence that would required in the suit. On the said conclusion, the learned Trial Judge appointed a Commissioner.
3.Mr.N.Shanmuga Thayumanavan, learned counsel appearing for the petitioners would vehemently contend that the very title pleaded by the 2/4 https://www.mhc.tn.gov.in/judis C.R.P(PD)No.28 of 2022 and CMP.No.188 of 2022 plaintiff is improper therefore, the Court ought not to have appointed a Commissioner. The question of title need not be adjudicated at this stage, The object of appointing Commissioner is only to measure the property and find out the encroachments. Such an appointment of Commissioner is not unknown to law. Courts have held that a Commissioner can be appointed to find out the exact nature of the property and the encroachment there upon, which would reduce voluemenous oral evidence. I therefore, do not see any reason to interfere with the order of the Trial Court. This civil revision petition, fails and it is accordingly, dismissed. No costs. Consequently, connected miscellaneous petition is closed. It is open to the petitioner to raise all defences in the suit. The Trial Court is directed to dispose of the application filed under Order 7 Rule 11 of CPC at the earliest.
12.01.2022 kkn Index:No Internet:Yes Speaking 3/4 https://www.mhc.tn.gov.in/judis C.R.P(PD)No.28 of 2022 and CMP.No.188 of 2022 R.SUBRAMANIAN, J.
KKN To-
The Additional District Munsif Court, Tiruppur.
C.R.P(PD)No.28 of 2022
and CMP.No.188 of 2022 12.01.2022 4/4 https://www.mhc.tn.gov.in/judis