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2018 Supreme(Mad) 3362
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. Tharani, J.
Mahalingam – Appellant
Versus
Paulpandi – Respondent
Civil Revision Petition (NPD) No. 1300 of 2015
Decided On : 01-10-2018
C. Dhanaseelan, C. Godwin, S. Sureshkumar, N. Dilip Kumar, D. Nalla Thambi, P. Athimoola Pandian.
The central legal point established in the judgment is that the appointment of an Advocate Commissioner under Order 26 Rule 9 of CPC is not necessary when there is no dispute regarding the identity or physical features of the property, and admitted facts need not be proved.
Headnote:
Advocate Commissioner - Property Dispute - Order 26 Rule 9 of CPC - [Order 26 Rule 9 of CPC] - The court discussed the appointment of an Advocate Commissioner under Order 26 Rule 9 of CPC to note down the physical features of the suit schedule property. The court considered various judgments to determine the necessity of appointing an Advocate Commissioner and concluded that in this case, the appointment of the Advocate Commissioner was not necessary as there was no dispute regarding the identity of the property or its physical features, and admitted facts need not be proved. The appointment would further delay the disposal of the suit.
Fact of the Case:
The petitioner filed a suit to declare a sale deed null and void and to claim ownership of the property. The petitioner sought the appointment of an Advocate Commissioner to note down the physical features of the property. The respondents contested the need for the appointment.
Finding of the Court:
The court found that the appointment of an Advocate Commissioner was not necessary as there was no dispute regarding the identity of the property or its physical features, and admitted facts need not be proved. The court dismissed the Civil Revision Petition.
Issues: The main issue was the necessity of appointing an Advocate Commissioner to note down the physical features of the property.
Ratio Decidendi: The court's decision was based on the lack of dispute regarding the identity and physical features of the property, as well as the potential for further delay in the disposal of the suit if an Advocate Commissioner was appointed.
Final Decision: The Civil Revision Petition was dismissed, and no costs were awarded.
1. Heard the learned counsel on either side.
2. This petition has been filed to set aside the order dated 28.01.2015 passed in I.A. No. 293 of 2013 in O.S. No. 128 of 2011 on the file of the Principal Subordinate Court, Nagercoil, Kanniyakumari District.
3. The petitioner is the plaintiff and the respondents are the defendants in the suit. The petitioner filed the suit in O.S. No. 128 of 2011 to declare the sale deed executed by the first respondent in favour of the second respondent as null and void and to declare that the petitioner is the absolute owner of the second schedule property and for permanent injunction. The petitioner filed I.A. No. 293 of 2013 for appointment of an Advocate Commissioner under Order 26 Rule 9 of CPC to note down the physical features of the suit schedule property. This petition was dismissed by the trial Court. Against the dismissal order, the petitioner filed the present petition.
4. On the side of the petitioner, it is stated that the property belonged to the petitioner and the petitioner executed a General Power Deed in favour of the first respondent on 08.02.2007. As the first respondent acted against the Will of the petitioner, the petitioner cancelled the power deed on 18.04.2007 and sent a notice to the first respondent through his counsel on 24.04.2007. Even after knowing that the power deed was cancelled, the first respondent executed a sale deed in favour of the second respondent and the second respondent executed a sale deed in the name of various persons and the respondents 12 and 13 herein constructed a building in the suit property. To note down the physical features, the appointment of the Advocate Commissioner is necessary.
5. On the side of the respondents 1 and 2, it is stated that the petitioner executed a sale agreement in favour of the first respondent and he received the amount from the first respondent and has issued a receipt and an irrevocable general power deed was executed in favour of the first respondent. On the basis of the deed, the first respondent executed a sale deed in favour of the second respondent and the other respondents. The suit is ready for trial. In the above circumstances, to drag on the case, this petition was filed.
6. On the side of the respondents 3, 4, 5 and 9, it is stated that the first respondent is the power agent and the power deed is a irrevocable deed. On the basis of the power deed, these respondents purchased the property for valuable sale consideration. The contention of the respondents 7, 8 and 10 is that they purchased the property for valuable consideration and the contention of the respondents is that the appointment of the Commissioner is not necessary and the petition is to be dismissed.
7. In the counter claim, the respondents 12 and 13 claimed title over the property and in the written statement of the sixth respondent, it is stated that the sixth respondent erected stone pillars and constructed a compound wall in a portion of the property. The respondents 1 to 5, 7 and 10 filed counter whereas the respondents 12 and 13 remained ex-parte. In the revision petition, there is no representation for the respondents 12 and 13, however, in the written statement of the respondents 12 and 13, it is admitted that there was a house with a measurement of 575 sq. ft. and the respondents 12 and 13 made a improvement for a sum of Rs. 6,00,000/- (Rupees Six Lakhs only).
8. On the side of the petitioner, it is stated that the suit property is 67 cents and the petitioner executed a general power deed in favour of the first respondent on 08.02.2007 and cancelled the same on 18.04.2007, after duly informing the first respondent by way of registered post. After the cancellation of the power deed, the first respondent executed the sale deed in favour of the second respondent on 26.04.2007 and subsequently sold the property to the respondents 2 to 13. There are some super structure in the property and to note down the physical features, appointment of
