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2019 DIGILAW 232 (MAD)

Govindammal v. Mumthaj Begam

2019-01-24

ABDUL QUDDHOSE

body2019
ORDER : The instant revision has been filed challenging the order dated 26.08.2014 passed by the learned District Munsif, Pallipattu in I.A.No. 444 of 2014 in O.S.No.49 of 2012. Brief facts leading to the filing of the instant revision:- 2. The petitioner is the plaintiff in the suit O.S.No. 49 of 2012 and the respondent is the defendant. She filed a suit for declaration that she is the absolute owner of the suit schedule property. The petitioner is the owner of plot no.19 and the respondent is the owner of plot no.18 in the same layout. According to the petitioner, she purchased the property in 1989 through a registered sale deed dated 01.06.1989 and the respondent purchased her property only in the year 2000 and both of them have purchased their respective properties only from the same vendor. 3. It is the case of the petitioner that after purchasing the suit schedule property, she was living with her husband in Ahmadabad. According to the petitioner, she came to know about the encroachment made by the respondent only in the year 2012 and after coming to know about the encroachment, she filed a suit for declaration in O.S.No. 49 of 2012. During the pendency of the suit, after commencement of trial, the petitioner filed I.A.No. 444 of 2014 seeking for appointment of Taluk Surveyor, as Commissioner to measure the suit schedule property and to locate its boundaries and to submit his report with plan to the Court. It has been stated in the affidavit filed in support of I.A.No. 444 of 2014 that the respondent is the petitioner's adjacent plot owner having no right over the suit schedule property. 4. According to the petitioner, the respondent is disputing the petitioner's boundaries and extent of the suit property and in order to avoid oral evidence with regard to boundaries and extent, it is essential and necessary to appoint a Taluk Surveyor, as Commissioner to measure the suit property and to locate its boundaries. A counter has also been filed by the respondent in I.A.No. 444 of 2014 filed by the petitioner stating that the suit property cannot be identified by the Taluk Surveyor without the sub-division of the suit property. A counter has also been filed by the respondent in I.A.No. 444 of 2014 filed by the petitioner stating that the suit property cannot be identified by the Taluk Surveyor without the sub-division of the suit property. The Trial Court by its order dated 26.08.2014 in I.A.No. 444 of 2014 dismissed the said application filed by the petitioner on the ground that the petition filed by the petitioner seeking to appoint a Taluk Surveyor, as Commissioner to measure the suit property and to locate its boundaries would amount to collection of fresh evidence, as admittedly there is a construction over the suit property. 5. The Trial Court has also relied upon the judgment of this Court, reported in 2012 (6) CTC 502 while dismissing the application filed by the petitioner. According to the learned counsel for the petitioner, the said judgment relied upon by the Trial Court was not applicable to the facts of the instant case, since in that reported case there was no boundaries for the suit property, whereas in the case on hand, the sale deed which was relied upon by the petitioner has boundaries and the property is identifiable. Aggrieved by the dismissal of I.A.No. 144 of 2014, the instant revision has been filed. 6. Heard Mrs.R.Balambigai Gowri, learned counsel for the petitioner. Despite service of notice on the respondent and her name having been printed in the cause list today, there is no representation on her side. 7. The learned counsel for the petitioner submits that the trial has already commenced in the suit O.S.No.49 of 2012 and due to the pendency of this revision, there is no further progress in the suit. Admittedly, the petitioner is having a registered sale deed. Even according to the petitioner, the property is very much identifiable and can be located. The neighboring plot owners namely Plot No.18, owned by the defendant as well as plot no. 20, owned by a third party are also having sale deeds in their respective names. Further all the three plot owners purchased their respective properties only from the same vendor. It is also the case of the petitioner that the patta has also been issued in her favour for her property. That being the case, there is no necessity for the petitioner to prove her case through the assistance of a Taluk Surveyor. The Trial Court has rightly rejected the application. 8. It is also the case of the petitioner that the patta has also been issued in her favour for her property. That being the case, there is no necessity for the petitioner to prove her case through the assistance of a Taluk Surveyor. The Trial Court has rightly rejected the application. 8. In the result, there is no merit in this revision and the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. However, the trial having already commenced in the suit which is of the year 2012, this Court directs the Trial Court to dispose of the suit within a period of four months from the date of receipt of a copy of this order.