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2020 Supreme(Mad) 18
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. THARANI, J.
Rosammal & Others - Petitioner
Versus
Selvaraj & Others - Respondent
C.R.P.(MD)No. 1498 of 2019 & C.M.P.(MD)No. 7903 of 2019
Decided On : 10-02-2020
Advocate Appeared:
For the Petitioners:N. Dillip Kumar, Advocate.
For the Respondents:M.P. Senthil, Advocate.
The appointment of an Advocate Commissioner is necessary to resolve disputes over property measurements and ownership, and parties must establish their case through oral and documentary evidence.
Headnote:
Commissioner - Dispute over Pathway - Chinnathambi and others v. Anjalai (2006) 4 LW 516, Jagadeswari v. Kandasamy and others (2014) 5 LW 361, Madheswari and others v. Malarmani (2017 SCC Online Mad 9307, P.G.Murugesan v. Advocates Bar Association Palcode (2017 SCC Online Mad 16644, V.Ganesan v. Kamal Jain and another (2013 (2) MWN (Civil) 619, B.Amutha v. Anandhi Sankara Narayanan (2016 (3) MWN (Civil) 614
Fact of the Case:
The petitioners filed a suit for declaration and permanent injunction. The respondents filed an application for appointment of an Advocate Commissioner to collect evidence regarding a disputed pathway. The trial Court allowed the petition, leading to the filing of this revision petition.
Finding of the Court:
The Court found that there was a dispute over the width of the pathway and the ownership of the property. It held that the appointment of a Commissioner to visit the property was necessary to resolve the measurement dispute.
Issues: Dispute over pathway width and property ownership, Appointment of Advocate Commissioner, Sufficiency of evidence
Ratio Decidendi: The Court relied on various judgments to establish that the appointment of an Advocate Commissioner is necessary to resolve disputes over property measurements and ownership. It emphasized the need for parties to establish their case through oral and documentary evidence.
Final Decision: The Civil Revision Petition was dismissed, and the order for the appointment of an Advocate Commissioner was confirmed.
JUDGMENT :
Prayer: This Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the order passed by the learned Principal District Munsif cum Judicial Magistrate, Eraniel dated 16.04.2019 in I.A.No.223 of 2018 in O.S.No.47 of 2018.
1. Heard the learned counsel appearing on either side.
2. This Civil Revision Petition has been filed against the order passed in I.A.No. 223 of 2018 in O.S.No.47 of 2018 dated 16.04.2019, on the file of the learned Principal District Munsif cum Judicial Magistrate, Eraniel.
3. The petitioners herein are the plaintiffs, the respondents 1 to 3 herein are the defendants 3 to 5 and the respondents 4 to 6 herein are the defendants 1, 2 and 6 in the suit. The petitioners herein have filed a suit in O.S.No.47 of 2018 for declaration and for permanent injunction. In that suit, the respondents 1 to 3 herein have filed an application in I.A.No.223 of 2018 for appointment of an Advocate Commissioner. That petition was allowed by the trial Court. Against which, the petitioners herein have filed the present petition.
4. The brief substance in I.A.No.223 of 2018 is as follows:
The suit property is alleged to have an extent of 0.33 square links in re survey No.41/4 of Thalakulam Village with a portion of 7.5 feet width common pathway, which leads to the properties of defendants 3 to 5. The plaintiffs are not in possession and enjoyment of the portion as alleged in the plaint. The property was enjoyed by the defendants for the past 60 years and the pathway was earmarked by the predecessor of title of the defendants as well as the petitioners. The petitioners are having common right over the common pathway. The plaintiffs are residing 1km away from the suit property. The allegation that the cemetery of the plaintiffs fore-fathers is kept inside the plaint schedule property is an utter falsehood. Their cemetery is situated far away from the western side of the residence of the plaintiffs. The property of one Vijayan and the property of the fifth defendant is situated with well defined compound wall and that a cement road is laid by the Panchayat and the right of pathway has been recognized, approved and accepted. The plaintiffs, who have no interest or right over the pathway with an intention to cause nuisance to the defendants put up some construction with an extent of 4 x 4 square feet across the pathway and they planted coconut sapplings and appointment of an Advocate Commissioner is necessary to note down these points.
5. The brief substance of counter filed by the first defendant in I.A.No.223 of 2018 is as follows:
The schedule property with an extent of 33 square feet absolutely belong to one Muthaiyah by virtue of a partition deed dated 13.02.1981. That Muthaiyah executed a sale deed in favour of the defendants 1 and 2 in respect of 4.504 cents out of 5.8575 cents. He retained 0.33 square links, since cemetery of his fore-fathers are kept inside. The suit property is not a portion of the common pathway. The width of pathway is approximately three feet. The defendants are trying to extend the width of the pathway. The property 33 square links was mistakenly omitted from being mentioned in the sale deed. On 30.05.2016, Muthaiyan died leaving behind the plaintiffs as his legal heirs. The defendants 1 and 2 conspired together and they executed a correction deed on 05.06.2018 before the Sub Registrar office and the allegation of enjoyment of 7.5 feet common pathway is baseless and imaginary.
6. The trial Court after considering both the sides, allowed the petition. Against which, the petitioner has filed this revision petition.
7. On the side of the petitioner, it is stated that the suit was filed for declaration and for injunction. The written statement with counter claim to remove the unauthorized construction was filed. Only to collect evidence, the Advocate Commissioner petition was filed by the respondents 1 to 3 and that the Court cannot appoint a Commissioner to collect evidence o
