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2009 DIGILAW 5485 (MAD)

Candassammy & Others v. Arumugam

2009-12-10

P.P.S.JANARTHANA RAJA

body2009
Judgment The petitioners are the defendants and the respondent is the plaintiff in the suit. The respondent/plaintiff filed a suit in O.S.No.601/2008 before the II Assistant District Munsif, Puducherry. It was stated that immovable property described in A-Schedule belonging to the respondent/plaintiff as well his brothers. The respondent/plaintiff and his brothers are the absolute owners of the property. Subsequently, one brother died intestate as bachelor. Thereafter, the respondents elder brother relinquished his rights and in favour of the respondent under the registered release deed dated 30.07.1981. The respondent/plaintiff is absolute and exclusive owner of the A-Schedule mentioned property and enjoying and possessing the property without any encumbrances. The respondent/plaintiff started construction of terrace house in the year of 2007 on the A-Schedule mentioned property. There is a vacant site for constructing the latrine and bath room on the northern west corner side in an extent of 90 sq.ft approximately in the said B-Schedule property. The petitioners/defendants are the adjacent owner of the A-Schedule property and their property re-survey No.187/65, but the respondent/plaintiff re-survey No.187/66. So, both the petitioners/defendants and respondent/plaintiffs resurvey numbers are totally different. It was alleged that the petitioners/defendants suddenly trespassed and encroached the B-Schedule of the suit property. Hence, the respondent/plaintiff filed a suit in O.S.No.601/2008 seeking to pass the mandatory injunction to direct the defendants to demolish the whatever structures illegally put up by them on the B-Schedule of the suit property and to hand over the possession as vacant to the plaintiff by the defendants, their agents, representatives, successors, legal heirs, and whomsoever claiming through them; to pass permanent injunction restraining the defendants, their henchmen, agents, representatives, successors, legal heirs, and whomsoever claiming through them from in any manner to disturb, dispossess and interfering with the plaintiffs peaceful and lawful possession of the suit property: The petitioners/defendants also filed a written statement denying all the allegations and stated that no merits in this case and the suit may be dismissed with costs. Subsequently, the respondent/plaintiff filed I.A.No.1415/2008 seeking to appoint an Advocate Commissioner to visit the A-Schedule suit property and also petitioners/defendants property and measure the same with assistance of qualified surveyor to fix both parties boundaries by production of documents and separately measure the B-Schedule of the suit property and note down the physical features of the properties. Subsequently, the respondent/plaintiff filed I.A.No.1415/2008 seeking to appoint an Advocate Commissioner to visit the A-Schedule suit property and also petitioners/defendants property and measure the same with assistance of qualified surveyor to fix both parties boundaries by production of documents and separately measure the B-Schedule of the suit property and note down the physical features of the properties. The petitioners/defendants also filed a counter statement denying all the allegations and stated that the application is devoid of merits and the same should be dismissed. After hearing arguments on both sides, the trial Court allowed the application as preferred by the respondent/plaintiff and appointed an Advocate Commissioner. Aggrieved by that order, the petitioners/defendants filed the present civil revision petition. 2. Learned counsel appearing for the petitioners/defendants submitted that the trial Court erred in allowing the I.A. for appointment of Advocate Commissioner. He further submitted that the trial Court failed to consider as per the description of the suit B Schedule property. The alleged encroachment is inside the suit property and hence there is no necessity to appoint the Advocate Commissioner. Further, he vehemently contended that the trial Court erred in directing the advocate commissioner to inspect the petitioners property, which is unwarranted as the same is not the subject matter of the suit and also appointment of advocate commissioner only to gather evidence to prove the possession of the suit property. Therefore, the order passed by the trial Court is not in accordance with law and the same has to be set aside. 3. Learned counsel appearing for the respondent/plaintiff submitted that the trial Court has considered all the facts and circumstances of the case and rightly allowed the advocate commissioner to inspect and note down the physical features of the suit property. Therefore, the order passed by the trial Court is in accordance with law and the same is hereby confirmed. 4. Heard the learned counsel appearing on either side and perused the material available on record. In this case, it is pertinent to note that the appointment of advocate commissioner is not a question. The only grievance of the petitioners/defendants is that the trial Court ought not to have given direction to the Advocate Commissioner to measure the properties of both sides i.e. including petitioners/defendants property, which is unwarranted. In this case, it is pertinent to note that the appointment of advocate commissioner is not a question. The only grievance of the petitioners/defendants is that the trial Court ought not to have given direction to the Advocate Commissioner to measure the properties of both sides i.e. including petitioners/defendants property, which is unwarranted. If the direction is restricted to measure the physical features of the schedule mentioned property in A and B, the petitioners/defendants have no objection. The learned counsel appearing for the petitioners/defendants further submitted that B-Schedule property, which is situated Northwestern portion of the RCC house. Therefore, It is not possible for the petitioners/defendants to trespass into the house of the respondent/plaintiff and put up any construction. Learned counsel appearing for the respondent/plaintiff submitted that unless measurement is taken in both the parties properties, it is very difficult to know the extent of the encroachment and also he relied on the various following judgments to support his contention; i. VENCU GOPAL TARI AND OTHERS Vs. NILCONTA S.XETE AND OTHERS reported in AIR 1975 GOA, DAMAN, DIU 32 ii. GAJRAJ AND OTHERS Vs. RAMADHAR AND OTHERS reported in AIR 1975 ALLAHABAD 406. iii. THOMAS Vs. KUNJU LURUMBA reported in 1995 1 KLT SN 9. .iv. RAJESH KUMAR GAUTAM Vs. MAHA MANDLESHWAR VEDABAYASANAD GEETA ASHRAM reported in AIR 2004 UTTRANCHAL 30. .v. HARYANA WAQF BOARD Vs. SHANTI SARUP AND OTHERS reported in 2008 8 SCC 671 . The prayer in the suit is that, seeking for mandatory injunction in directing the petitioners/defendants to demolish whatever structure illegally put up by them on the B Schedule property and hand over the possession as vacant to the respondent/plaintiff. Also, the case law cited supra relied by the learned counsel appearing for the respondent/plaintiff is not applicable to the facts and circumstances of the present case. Therefore, after taking into consideration facts and circumstances of the case and above prayer and also objection filed by the petitioners/defendants in the counter opposing the application that they have not put up any construction in the B-Schedule property, the advocate commissioner is directed to visit and note down the physical features of the A and B Schedule properties only and not the petitioners/defendants property as directed by the trial Court with the help of the qualified surveyor and file a detailed report with plan. Earlier, a direction given by the trial Court is that to note down the physical features and measure the properties of both sides with the help of the surveyor, which is unwarranted. Therefore, the advocate commissioner is directed to note down only the physical features of the A and B Schedule property of the respondent/plaintiff with the help of the surveyor and file a detailed report with plan and find out there is any encroachment or not. To that extend, the order of the trial Court is modified. 5. With the above observations, the Civil Revision Petition is partly allowed. No Costs. Consequently, connected M.P.No.1 of 2009 is closed.