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2008 DIGILAW 2871 (MAD)

Mrs. Nithyakalyani v. Lakshmi & Another

2008-08-07

S.RAJESWARAN

body2008
Judgment :- This Civil Revision Petition has been filed by the petitioner/defendant to set aside the Order dated 15.02.2008 in I.A.No.44 of 2008 in O.S.No.185 of 2006 on the file of the learned Principal Sub Judge, Chengalpattu. 2. The defendant in O.S.No.185 of 2006 is the revision petitioner before this Court. The suit in O.S.No.185 of 2006 has been filed by the respondents/plaintiffs for permanent injunction restraining the defendant from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit property. Written statement has been filed by the petitioner/defendant and the suit is being contested. Pending suit an application in I.A.No.44 of 2008 was filed by the petitioner/defendant to appoint an Advocate Commissioner to inspect the suit property with the help of a Taluk Surveyor and submit his report with a sketch. The said application was resisted by the respondents/plaintiffs by filing a counter. The trial Court by order dated 15.02.2008 dismissed that application. Aggrieved by the same, the above civil revision petition has been filed. 3. The respondents have entered appearance through counsel. 4. I have heard Mr. M. Muthukumarasamy, learned Senior counsel appearing for the petitioner as well as Mr. T.V. Ramanujam, learned Senior counsel appearing for the respondents/caveators and I have also gone through the documents filed in support of their submissions. 5. The learned Senior Counsel Mr. M. Muthukumarasamy, appearing for the petitioner submits that the suit for permanent injunction, has been filed by the respondents/plaintiffs. The petitioner/defendant filed an application pending suit, to appoint an Advocate Commissioner to inspect the suit the property, in order to establish that the pathway, which is being used by the defendant, which is now claimed by the respondents/plaintiffs that they have not sold that strip of land to the petitioner and was retained by them. Therefore, the appointment of Advocate Commissioner is only to help the Court in arriving at a just conclusion. Whereas, according to learned senior counsel , the trial Court on a thorough misconception of the facts and law dismissed the application holding that the evidence available before the Court would be sufficient to establish the case and as the execution of the sale deed has been admitted, the same would be sufficient for arriving at a conclusion. By observing so the application is dismissed as not necessary by the trial Court. By observing so the application is dismissed as not necessary by the trial Court. According to the learned Senior Counsel, this observation is wrong and he has relied on a Judgment in PR.Chockalingam Vs. M. Pichai and another reported in (2003) 2 M.L.J. 399 ), to submit that Advocate Commissioner could be appointed for the purpose of arriving at a just conclusion and if some clarification is required in respect of the identity of the property, the same could be clarified with the help of the local inspection by the Advocate Commissioner and it will not prejudice the respondents/plaintiffs. 6. Per contra, the learned Senior Counsel Mr. T.V. Ramanujam appearing for the respondents submits that the plaintiffs have filed the suit for permanent injunction on the basis of the sale deeds, joint patta, separate patta chitta extract, adangal extract and kist receipts paid by the plaintiffs. The learned Senior Counsel pointed out that the suit was posted for evidence of the revision petitioner on 12. 2007, whereas, the application to appoint the Advocate Commissioner was filed in January 2008. After the dismissal of the I.A.No.44 of 2008 on 15.02.2008, the suit was again posted for her evidence from 03.03.2008 to 15.08.2008. Hence, according to the learned Senior Counsel, there is no bonafide on the part of the petitioner/defendant to file this application Under Order 26, Rule 1 and 2 of C.P.C. He further adds that when the revision petitioner with the help of her husband managed to get an erroneous order from the Revision Divisional Officer, the respondents filed W.P.No.817 of 2007 and the order of the Revenue Divisional Officer was quashed by this Court on 012. 2007. Hence, the prayed for the dismissal of the Civil Revision Petition. 7. I have considered the rival submissions carefully with regard to fact and citations. 8. A perusal of the records would that the suit property is claimed by both the plaintiffs and the defendant. According to the plaintiffs, while executing the sale deed in favour of the defendant, they have retained the suit property and therefore, they are the owners of the suit property. The revision petitioner/defendant contends that while executing the sale deed that the suit property was also sold to her and not retained by the plaintiffs as falsely claimed by them. According to the plaintiffs, while executing the sale deed in favour of the defendant, they have retained the suit property and therefore, they are the owners of the suit property. The revision petitioner/defendant contends that while executing the sale deed that the suit property was also sold to her and not retained by the plaintiffs as falsely claimed by them. To decide this question, as rightly pointed out by the trial Court, the sale deeds, joint patta, separate patta, chitta extract, adangal extract and kist receipts filed by the plaintiffs and the documents of the revision petitioner are sufficient. Further, the question involved is not with regard to the identity of the suit property, whereas the question is whether the suit property has been transferred to the defendant or not. Hence, the appointment of Advocate Commissioner is not necessary. Yet another fact which will go against the revision petitioner is that I.A.No.44 of 2008 has been filed belatedly, that too after the plaintiffs evidence was closed and the suit is posted for defendants evidence. 9. Hence, I do not find any illegality nor infirmity in the order passed by the trial Court. The judgment relied on by the learned Senior Counsel for the petitioner is not helpful to the petitioner as the facts in that judgment are totally different from the facts of the present case. 10. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, M.P.No.1 of 2008 for stay is also dismissed.