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2017 DIGILAW 2007 (MAD)

O. Subbaiah v. R. Subbulakshmi

2017-07-13

T.RAVINDRAN

body2017
ORDER : 1. Challenge in this civil revision petition is made to the fair and de-creetal order, dated 05.12.2016, passed in I.A.No.480 of 2016 in O.S.No.16 of 2016, on the file of the District Munsif Court, Virudhunagar. 2. The suit has been laid by the plaintiffs for the relief of permanent injunction. The said suit has been vehemently contested by the defendants. 3. Pending suit, it is found that the plaintiffs have taken out an application for appointment of Advocate Commissioner to inspect the suit property with the assistance of survey records and with the help of a qualified Surveyor and Village Administrative Officer and note down the physical features pertaining thereto and file a report with plan, which would help to adjudicate the issues involved in the suit. The above said application came to be resisted by the defendants. The Lower Court, on a consideration of the rival contentions put forth by the respective parties, was pleased to dismiss the application preferred by the plaintiffs seeking for appointment of Advocate Commissioner. Challenging the same, the present civil revision petition has been preferred. 4. As seen from the materials placed before this Court, it is found that the suit has been laid simpliciter for the relief of permanent injunction. It is further found that the plaintiffs claimed title over the suit property based upon the title deeds filed along with the plaint. It is the specific case of the plaintiffs that an extent of 6 Cents had been purchased by their predecessor-in-interest, namely, Ovureddiar, under a Sale Deed, dated 24.10.1924 and after alienation of a portion of the above said property purchased under the above said document to an extent of 1620 sq. ft., shown as “BGJC” in the plan, it is the case of the plaintiffs that their predecessor- in-interest and after his demise, the plaintiffs as such had been enjoying the suit property as a passage shown as “ABCD” in the plaint plan to reach their property shown as “DHFE” in the plaint plan and according to the plaintiffs, inasmuch as the defendants in the guise of putting up construction in their property, which is situated to the west of the suit property, attempted to encroach into the suit property, it is the case of the plaintiffs that they have been necessitated to lay the suit for permanent injunction. It is also found from the pleadings that the passage shown as “ABCD” in the plaint plan found to be measuring 7 Feet in width and 27 Feet in length, according to the plaintiffs, excluding the 1 ½ Feet common passage, the remaining extent of 5 ½ Feet Passage had been in possession and enjoyment of their predecessor-in-interest and the plaintiffs and therefore, according to the plaintiffs, inasmuch as the above mentioned features pertaining to the passage are to be identified with the assistance of survey records and qualified Surveyor and Village Administrative Officer, they have been necessitated to seek for appointment of Advocate Commissioner. 5. As seen above, the above request is hotly contested by the defendants on the footing that inasmuch as the plaintiffs have claimed title to the suit passage based upon the title, it is for the plaintiffs to establish their case by producing necessary documents available with them and the plaintiffs in the guise of the appointment of Advocate Commissioner cannot be allowed to establish the plea of possession in respect of the suit property and inasmuch as the plaintiffs are endeavouring to establish their possession by taking out a Commission, according to the defendants, the plaintiffs' application for appointment of Advocate Commissioner should be rejected. 6. As rightly found by the Lower Court, when the plaintiffs have come forward to file the suit simpliciter for permanent injunction and when according to the plaintiffs, their title to the suit property could be established by the title deeds available with them, as rightly seen, the plaintiffs have to establish their case by producing the documents available with them and seek the relief sought for in the plaint. In such circumstances, when the plaintiffs have specifically pleaded that leaving 1 ½ Feet common passage, the plaintiffs and their predecessor-in-interest had been in possession and enjoyment of the remaining 5 ½ Feet passage and with reference to the same, when according to the plaintiffs, documents are available with them and if further according to the plaintiffs survey records also available to show their entitlement to the said property as such, the plaintiffs should establish their case by the production of necessary documents for obtaining the relief sought for. In such view of the matter, as rightly found by the Court below and also pleaded by the defendants, the plaintiffs in the guise of the above said application, seeks only to collect evidence i.e., to establish the factum of their possession in respect of the suit property. When the right and enjoyment of the plaintiffs to the suit property is totally disputed by the defendants as held by the Court below and also in my considered opinion, noting of the physical features of the suit property by the Advocate Commissioner would not in any manner be useful to determine and adjudicate the issues involved in the suit. Therefore, it is found that the Lower Court had, on the basis of the contentions put forth by the respective parties, rightly held that the present application has been preferred by the plaintiffs only to collect evidence, which cannot be legally sustained and accordingly, dismissed the application. 7. In this civil revision petition, it is contended by the learned counsel for the plaintiffs that the defendants have taken a plea in their written statement that the plaintiffs have to establish their case by taking out a Commission and hence, the plaintiffs had been necessitated to lay the application for appointment of Advocate Commissioner. However, in the counter filed by the defendants to the application laid by the plaintiffs seeking for appointment of Advocate Commissioner, it is the specific case of the defendants that there is no need to note physical features of the suit property by taking out a Commission. Therefore, de hors the plea put forth by the defendants as to how they should establish their case, it is for the plaintiffs to make out a case for appointment of Advocate Commissioner. When in the light of the above discussions, it is found that there is no need for the appointment of Advocate Commissioner to note down the physical features of the suit property, considering the case of the plaintiffs that their right and enjoyment of the suit property is buttressed by the documents available with them, the order of the Court below declining the relief sought for by the plaintiffs for appointment of Advocate Commissioner is found to be correct both factually as well as legally and therefore, it does not call for any interference from this Court. 8. 8. In view of the foregoing reasons, the civil revision petition is found to be devoid of merits and it is dismissed with costs. Consequently, connected miscellaneous petition is closed.