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Madras High Court · body

2015 DIGILAW 1235 (MAD)

P. K. Sundar v. Selvi

2015-03-03

PUSHPA SATHYANARAYANA

body2015
Judgment 1. The plaintiff is the revision petitioner, challenging the appointment of a Commissioner at the instance of the defendants 1 to 3 in a suit for injunction. 2. Admittedly, the suit properties originally belonged to the defendants. The father of the defendants had 0.81 cents of land in the suit Survey number. After sub-division, the suit survey number is 612/2 and joint patta has also been issued by the Revenue Department in the name of the defendant as well as others. Out of the suit properties, the defendants sold 0.05 cents within a specific four boundaries as vacant site to the respondent/plaintiff. On the date of sale, there was no building and it was only a vacant site. Even in the year 2007, the defendants claim to have constructed RCC roof terraced shops in a portion of the property which is situate on the west of the suit property and the said building is in possession of the defendants. While the facts remain thus, the plaintiff has claimed that he had put up a terraced building after his purchase and leased out to the tenants and now, the tenants had vacated the premises. 3. The above said allegations were all denied by the defendants. As there was dispute regarding the identity of the property, the defendants who are the owners of the larger extent of the property had filed an application for appointment of a Commissioner to measure the suit property and identify the suit survey number with the help of the concerned Firka Surveyor. According to the defendants, the report of the Commissioner would minimise the oral evidence on either side. Though this was objected to by the petitioner herein, who is the plaintiff that in a suit for injunction contending that a Commissioner cannot be appointed, the Additional District Munsif, Karur, allowed the said application. Now, aggrieved by the same, the petitioner is before this Court. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 5. The only question that has to be decided is whether the revision has to be allowed. 6. No doubt, it is a suit for bare injunction. The plaintiff has given the description of the property in the schedule with specific boundaries having purchased the same from the defendants 1 to 3 on 6/9/2013. 5. The only question that has to be decided is whether the revision has to be allowed. 6. No doubt, it is a suit for bare injunction. The plaintiff has given the description of the property in the schedule with specific boundaries having purchased the same from the defendants 1 to 3 on 6/9/2013. It is also admitted that joint patta is issued in the name of the plaintiff and the defendants. Originally, the defendants owned 0.81 cents which had been laid into plots and one such vacant plot was sold to the plaintiff in the year 2013. According to the defendants, even before the sale of the property in favour of the plaintiff, they had put up RCC roofed building. The existence of the building is admitted by both the parties. The plaintiff claims that the construction was put up by him in the property purchased by him whereas the defendants claim that even before the purchase of the plaintiff, the buildings were put up by him in the west of the property of what was sold to the plaintiff. 7. Though it may be a suit for injunction, as there is a dispute regarding the identity of the property, the Additional District Munsif, Karur, who is the trial Judge and one of the fact finding Courts thought it fit to appoint a Commissioner to measure the property with the help of Firka Surveyor and note down the physical features only to identify the property. The Court has got the discretion either to appoint a Commissioner or not. Though the report of the Commissioner may not be final, it may be used as a piece of evidence. Only the question of possession cannot be found out by the report of the Commissioner or even to gather evidence, a Commissioner cannot be appointed. 8. In this case, since admittedly, the plaintiff has purchased the property within the specific boundaries, it is only the building which both the parties claim to be the owner has to be determined as to on whose property, the building stands. Therefore, the Commissioner was appointed to measure the property and determine the boundaries of the plaintiff as per his purchase. As the trial Judge has felt the need of the appointment of the Commissioner, I see no infirmity or illegality in the order passed. Therefore, the Commissioner was appointed to measure the property and determine the boundaries of the plaintiff as per his purchase. As the trial Judge has felt the need of the appointment of the Commissioner, I see no infirmity or illegality in the order passed. Therefore, the order passed by the Additional District Munsif, Karur is confirmed. 9. In the result, this Civil Revision Petition is dismissed, confirming the order of the learned Additional District Munsif, Karur passed in I.A.No.928 of 2014 in O.S.No.728 of 2014. No costs. Time granted to the Commissioner to execute the warrant of commission is extended till 31/3/2015. Consequently, the connected Miscellaneous Petition is also dismissed.