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2013 DIGILAW 3363 (MAD)

I. Richardson v. Thankayyan

2013-09-18

C.S.KARNAN

body2013
Judgment : 1. The brief history of the case is as follows:- The revision petitioners/plaintiffs have filed a civil suit in O.S.No.129 of 2012 on the file of the Principal District Munsif-cum-Judicial Magistrate at Eraniel against the respondents herein/defendants stating that the plaintiffs' grandfather, namely, Thaveethu Nadar executed a deed of usufructuary mortgage with respect to the plaint schedule property in favour of Joseph Nadar who is the father of the first defendant and grandfather of the defendants 2 to 6. The said usufructuary mortgage has been registered on the file of Sub-Registrar, Colachel as bearing document No.852 of 1953 dated 08.04.1953. 2. Now, the plaintiffs approached the defendants and offered to pay the mortgaged amount and requested the defendants to return the mortgage. However, the same was refused by the defendants. Hence, the legal-heirs of the mortgager i.e., the plaintiffs herein have filed the above suit against the legal-heirs of the mortgagee i.e., the defendants herein, since both the mortgager and mortgagee have expired leaving behind them, the above parties respectively. Therefore, the plaintiffs prayed for redemption of mortgage of plaint schedule property and for recovery of possession of the same and other reliefs. 3. The defendants have filed a written statement and resisted the suit on various grounds. At this juncture, the fourth petitioner/fourth plaintiff has filed an interlocutory application in I.A.No.203 of 2013 in O.S.No.129 of 2012stating that she and other plaintiffs seeking a judgment and decree for redemption of mortgage and recovery of possession of the plaint schedule property and a consequential permanent injunction restraining the defendants, their men, agents and any one from making alienation or creating encumbrances upon the plaint schedule property and other reliefs. 4. The fourth plaintiff further stated that the defendants jointly filed their written statement by disputing the identity of the suit property and denying the relationship of the mortgager and mortgagee and claiming that they are the absolute owners of the suit property and disputing the physical feature of the suit property that it is not a vacant site, but it is a part of the house and house site, wherein cattle-shed, Haystack, bathrooms, and variety of fire woods were kept there and the buildings are removed for putting up house and basement work for a building has been commenced and the same is about to be completed. Actually, at the plaint schedule property, no construction was made. Actually, at the plaint schedule property, no construction was made. Since the defendants dispute the identity of the suit property and its physical features, in order to elucidate the facts, it becomes necessary to issue a commission for local investigation. If a commission is not issued at once, the existing features of the petition schedule property may either be altered or destroyed. Hence, the fourth plaintiff has filed the above interlocutory application in the suit for local investigation of the suit property. 5. The defendants/respondents have filed a counter statement and refuted the interlocutory application, stating that this Court directed the learned Principal District Munsif, to dispose of the main case within six months. Further, the interlocutory application has been filed by the plaintiffs in order to drag on the case. 6. After considering the averments of both parties and on hearing the arguments of the learned counsels, the learned District Munsif dismissed the said application. Against the said order of dismissal, the above civil revision petition has been filed. 7. The highly competent counsel for the revision petitioners vehemently argued that the learned Judge, without giving sufficient opportunity, dismissed the said application. This Court had directed the trial Court to dispose of the main case on merits within a period of six months and there is no specific direction in the order to prevent both parties to file any interlocutory application in the suit. Suppose, as per the direction of the High Court, if the proceedings would not be disposed of within time due to unavoidable circumstances, then the learned trial Court's Judge can get extension of time by way of administrative order. In this case, as per the plaintiffs' contention, the suit property is a vacant site and as per the defendants' contention raised in the written statement, there is a superstructure over the schedule mentioned property, besides, the defendants disputing the location of the property. Therefore, in order to determine the veracity of the truthfulness regarding location and physical features of the property, as such a commission of inquiry is necessary in order to obtain clarification in the instant case to render quality judgment to the parties concerned. If the commission for inquiry is constituted, the respondents will not be prejudiced in any manner and the character of the suit will be maintained. 8. If the commission for inquiry is constituted, the respondents will not be prejudiced in any manner and the character of the suit will be maintained. 8. The very competent counsel for the respondents vehemently argued that the defendants have raised superstructures, namely, bathrooms, cattle-sheds and presently main construction is to be stared. Further, the respondents are enjoying the property for more than several decades. Therefore, the appointment of an Advocate Commissioner is not required in this case as per the suit prayer. The main prayer in the suit is for the redemption of mortgage and an additional prayer not to make any encumbrances over the suit property. Therefore, the appointment of an Advocate Commissioner is not required to decide the necessary issues arising in the suit. 9. Per contra, the very competent counsel for the petitioners submits that the respondents/defendants have disputed the location of the property and also physical features of the property, which is the main bone of contention in the suit. 10. From the above discussions, this Court is of the view that: (1) In the instant suit, physical features are to be noted down including demarcation totally with the schedule mentioned property as per the mortgage document as well as the plain schedule mentioned property. If an Advocate Commissioner is appointed for local investigation, both parties will not be prejudiced, at the same time, the Advocate Commissioner's Report will give more clarification to the trial Court for deciding all issues, rendering quality of judgment. (2) The learned trial Court's Judge had observed that the Hon'ble High Court had directed to conclude the case within a period of six months, therefore, the interlocutory application is dismissed since there is no representation on the side of the petitioners' counsel. The kind of decision is not on merits, but the decision is complied to on High Court's direction. (3) If the Advocate Commissioner is appointed for the inspection of the schedule mentioned property, the character of the suit remains unchanged. 11. On considering the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the trial Court, the above views 1 to 3 mentioned as above, the above revision generates enough force to allow it. 11. On considering the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the trial Court, the above views 1 to 3 mentioned as above, the above revision generates enough force to allow it. Accordingly, the above Civil Revision Petition is allowed and directs the learned trial Court's Judge to appoint an Advocate Commissioner to note down the physical features of the schedule mentioned property with the assistance of a qualified surveyor for the convenience of the Advocate Commissioner within a period of four months from the date of receipt of a copy of this order. 12. In the result, the above Civil Revision Petition is allowed with the above observations. Consequently, the order and decretal order passed in I.A.No.203 of 2013 in O.S.No.129 of 2012 on the file of the Principal District Munsif-cum-Judicial Magistrate at Eraniel, dated 30.04.2013, is set aside. Connected miscellaneous petitions are closed. No costs. Accordingly ordered.