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2021 DIGILAW 237 (MAD)

Krishnamurthy v. P. Kalairani

2021-01-20

V.BHAVANI SUBBAROYAN

body2021
JUDGMENT : (Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the Fair and Final order dated 28.06.2018 passed in I.A.No.489 of 2017 in O.S.No.268 of 2014 on the file of the learned Principal District Munsif, Additional District Munsif Court, (FAC), Cuddalore.) 1. The present Civil Revision Petition is against the fair and decreetal order dated 28.06.2018 passed in I.A.No.489 of 2017 in O.S.No.268 of 2014 on the file of the Principal District Munsif, Additional District Munsif (FAC), Cuddalore. 2. The Civil Revision Petitioner is the plaintiff and the respondents are defendants 6, 7 and 8 in the suit. The suit was filed by the petitioner to declare his title to the suit ‘A’ Schedule properties restraining the respondents and to direct the defendants 4 and 5 therein to alter revenue records as to show the petitioner as owner of the properties described in ‘A’ Schedule properties and issue patta to him. 3. The petitioner/plaintiff has taken out I.A.No.489 of 2017 seeking to appointment Advocate Commissioner with directions to inspect the suit ‘A’ and ‘B’ schedule properties, note down the physical features and to file a report and plan to the court. A counter was filed by the respondents and the court below after considering the pleadings of both the parties, has dismissed the said application for appointment of Advocate Commissioner. Aggrieved by the same, the petitioner/plaintiff has filed the present Civil Revision Petition. 4. The petitioner’s case is that he is in possession of both ‘A’ and ‘B’ Schedule Properties mentioned in the plaint, which is inhibited by way of oral partition. There is a motor, borewell, Pumpset and electricity service connection in suit ‘B’ Schedule property and from ‘B’ Schedule Property, he is fetching water to ‘A’ Schedule Property through the pipes embedded beneath the earth. Since the said crux is the vital aspect, the petitioner has prayed for appointment of Advocate Commissioner. 5. The said claim was denied by the respondents stating that the petitioner/plaintiff is not in possession of the said property nor he has title over the suit properties. Since the said crux is the vital aspect, the petitioner has prayed for appointment of Advocate Commissioner. 5. The said claim was denied by the respondents stating that the petitioner/plaintiff is not in possession of the said property nor he has title over the suit properties. The issue with regard to the title of the property is to be considered by taking note of the fact that whether the same was inhibited by the petitioner/plaintiff by way of oral partition, when the title deeds stand in the name of the father of the respondents 2 & 3. Further, there is no difficulties regarding identification of the properties nor there is any dispute regarding territories/boundaries of the property. That apart, the respondents have clearly stated that they have no claim over the suit ‘B’ Schedule property and they are only concerned with ‘A’ Schedule property. The said issue can be decided only by proving the same by way of letting in necessary evidence. When there is no dispute regarding identification of the property, no advocate commissioner needs to be appointed. Only with a malafide intention to gather some evidence with regard to the suit schedule properties, the petition for appointment of advocate commissioner was filed and on account of the same, the respondents prayed for dismissal of the application. 6. Heard Mr.R.Gururaj, learned counsel appearing for the petitioner and Mr.D.Ravichander, learned counsel appearing for the respondents and perused the documents placed on record. 7. The contention of the learned counsel for the petitioner that he is fetching water from ‘B’ Schedule Property to ‘A’ Schedule Property through the pipeline, which has been embedded underneath the earth and through the same, he is irrigating his crops and the same can be proved by appointing the advocate commissioner, who will note down the physical features, cannot be accepted because of the fact that when there is no dispute regarding the physical features of the suit property, a petition being filed only to collect the evidence to support his claim regarding possession. Further, the dispute with regard to the suit schedule property, has to be proved only by way of producing necessary documents to the effect or examining the witnesses and the same cannot be obtained in a short cut method by way of appointment of an Advocate Commissioner. 8. Further, the dispute with regard to the suit schedule property, has to be proved only by way of producing necessary documents to the effect or examining the witnesses and the same cannot be obtained in a short cut method by way of appointment of an Advocate Commissioner. 8. It is to be noted that when an Advocate Commissioner is appointed, he can only note down the physical features of the property and if there is any dispute arises regarding the possession, he cannot find out the fact of possession. Further, when the identity of the suit schedule property is not in dispute, the appointment of a commissioner is absolutely not appreciable and by trying to fill up the lacuna based on the Advocate Commissioner’s report, the petitioner’s claim has to be neglected. 9. At this juncture, it is pertinent to point out that when the suit is filed for declaration of title, permanent injunction and for altering the revenue records and in the suit itself it is stated that the suit properties stands in the name of the father of the respondents 1 and 2, who deceased earlier, the specific pleading of the petitioner that he obtained the property in question through oral partition and that he has got title over the suit property, has to be proved by him. Moreover, the submission of the petitioner that as per the oral partition, the sale deeds were handed over to him and he is in possession of the same, however, without making any mutation in the revenue records, is also not convincing and acceptable. As contended by the petitioner when the oral partition had taken place in the year 1976 itself and he is in possession of the suit property and that fetching water from the Well in ‘B’ schedule property to ‘A’ Schedule property for irrigation purpose, cannot be investigated by the said Advocate Commissioner. 10. Apart from the above, whether the petitioner has got right over the suit schedule property, is to be decided on the evidence produced and rightly it could be seen from the pleadings that there is no dispute regarding physical features. The petitioner has to prove his case by way of rebuttable oral and documentary evidence. 10. Apart from the above, whether the petitioner has got right over the suit schedule property, is to be decided on the evidence produced and rightly it could be seen from the pleadings that there is no dispute regarding physical features. The petitioner has to prove his case by way of rebuttable oral and documentary evidence. The revenue officials will be in a better position to prove the possession of a person and the advocate commissioner can find out only the physical features of the property and the contention of the petitioner that only through Advocate Commissioner’s report, the possession of ‘A’ and ‘B’ schedule property can be proved, is not acceptable. 11. It is also made clear that the petitioner has taken out an application in I.A.No.744 of 2014 for the same relief and the same was dismissed for not taking steps to bring the legal heirs of the deceased, who died at the time of pendency of the application. 12. The reasons stated by the petitioner that taking steps in proceeding I.A.No.276 of 2014 was a cumbersome process, hence he allowed the said application to be dismissed for not taking steps and now that the plaint is amended, this application is filed, cannot be accepted and it is only a delaying tactics. The court cannot be made to deal with these I.As and act according to his own whims and fancies, who seeks to fillup the omissions in the already adduced evidence. 13. In view of the above, the petitioner is not entitled for the relief sought for. Accordingly, the court below has rightly rejected the claim of the petitioner stating that appointment of Advocate Commissioner is not warranted and the same does not require any interference of this Court. 14. In the result, the present Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.