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2021 Supreme(Mad) 813
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. KARTHIKEYAN, J.
C.B. Manokaran – Appellant
Versus
P. Valli & Others – Respondent
C.R.P.(PD). No. 2321 of 2020 & C.M.P. No. 14588 of 2020
Decided On : 20-04-2021
Advocate Appeared:
For the Petitioner:B. Hari Krishnan, Advocate.
For the Respondents:R. Poornima, Advocate.
Point of Law: When there is a dispute over extent, measuring of the suit property with help of surveyor and the plan thereon would considerably reduce the oral evidence. Object of local investigation is to obtain evidence which could be based on only from spot and the inspection. Report of advocate Commissioner would enable Court to properly and correctly understand and assess evidence on record in resolving the contentious points
Headnote:
Constitution of India, 1950 - Article 227 - Sale Deed - Land issue - Application for appointment of an Advocate Commissioner to make local inspection - Dismissed - Plaintiff had also lodged a complaint with the Central Crime Branch, Office of the Commissioner of Police and a representation was also given to Inspector General of Registration to cancel the Sale Deed - It is stated that there has been no progress with respect to either criminal complaint or with respect to the representation to cancel the Sale Deed
Finding of the court: District Munsif may, after taking up report of Advocate Commissioner also grant necessary opportunity to all the parties to file their objection and if necessary summon Advocate Commissioner for examination. However, this would not give any right to either plaintiff or defendants to reopen evidence which had already been recorded. That evidence still stands and would continue to stand. It cannot be added. It should be analysed and such analysis should be done keeping in mind report of Advocate Commissioner - No prejudice would be caused by appointment of an Advocate Commissioner for purpose of inspecting property and submitting a report. The lands are fixed in nature. Survey numbers have been allotted. It is now an issue of determining lands in particular survey number and determining which one of lands in said survey numbers had actually been conveyed by 1st, 2nd and 3rd defendants to 4th defendant. This would require, as stated above, local investigation and for that purpose to assist Court to decide dispute, appointment of an Advocate Commissioner would certainly be of much assistance to resolve the issue raised by both parties.
Result: Civil Revision Petition is allowed
JUDGMENT :
(Prayer: This petition filed under Article 227 of the Constitution of India, prayed to set aside the fair and decreetal order dated 24.11.2020 passed by the learned District Munsif, Tiruvotiyur, dismissing I.A.No.2 of 2020 in O.S.No.4 of 2017 and allow I.A.No.2 of 2020 in O.S.No.4 of 2017.)
1. The Revision Petition has been filed by the plaintiff in O.S.No.4 of 2017 now pending on the field of the District Munsif Court, Tiruvotriyur, questioning the order dated 24.11.2020 in I.A.No.2 of 2020.
2. The said application had been filed seeking appointment of an Advocate Commissioner to make local inspection. The said application was dismissed by order dated 24.11.2020. 3. O.S.No.4 of 2017 had been filed by the plaintiff, seeking a judgment and decree against the defendants in the nature of declaration that a Sale Deed dated 10.03.2011 executed by the 1st, 2nd and 3rd defendants conveying the lands measuring 17.5 cents in S.No.73/48 in Ernavur Village, Tiruvotriyur Taluk, Tiruvallur District, to and in favour of the 4th defendant is non-est, illegal, null and void and not binding on the plaintiff and on the other legal heirs of deceased Chellammal and for permanent injunction restraining the 4th and 5th defendants from interfering with the peaceful possession of the plaintiff with the said lands and for costs of the suit.
4. It had been stated in the plaint, that the lands in S.No.73/48 measuring 17.5 cents is the ancestral property of the plaintiff. The revenue records stands in the name of paternal grandmother Chellammal. The property had devolved on to her and she was in uninterrupted possession and enjoyment till her death. During her lifetime, Chellammal also purchased lands measuring 16,000 sq.ft., in S.No.73/50 also situated in Ernavur Village by a registered Sale Deed dated 11.04.1966 registered as Doc.No.467 of 1966 in the Sub-Registrar Office, Tiruvotriyur. She later sold the said lands in S.No.73/50 to one T.D.Purushothaman, under Sale Deed dated 06.12.1967 registered as Doc.No.1917 of 1967 in the Office of the Sub-Registrar, Tiruvotriyur.
5. Chellammal died on 17.03.1983 leaving behind three sons, one daughter and three grand children including the plaintiff herein born through a pre-deceased son. It is claimed that the legal heirs are entitled to succeed to her estate namely her ancestral property in S.No.73/48 measuring 17.5 cents. The plaintiff and his two sisters are jointly entitled to an undivided 1/5th share in the said ancestral property in S.No.73/48. The other four shares would devolve to the other three sons and daughter of Chellammal.
6. It is claimed in the plaint that the purchaser of S.No.73/50 measuring 16,000 sq.ft., from Chellammal under registered Sale Deed dated 06.12.1967, T.D.Purushothaman died on 24.09.1992. His legal representatives namely, his wife, son and daughter who had been impleaded as 1st, 2nd and 3rd defendants had sold the lands in S.No.73 / 48, Ernavur Village along with other lands in S.Nos.73/1P, 73/49, O.S.No.73, 48, Block No.4, Ward B, Ernavur Village, to the 4th defendant under Sale Deed dated 10.03.2011 registered as Doc.No.1828 of 2011 in the Office of the Sub-Registrar, Tiruvotriyur. This Sale Deed by which the ancestral property of Chellammal had been sold by the legal representatives of T.D.Purushothaman has been sought to be declared as null and void by the plaintiff in the suit.
7. The plainitiff had also lodged a complaint with the Central Crime Branch, Office of the Commissioner of Police on 29.09.2011 and a representation was also given on 25.10.2012 to the Inspector General of Registration to cancel the Sale Deed. It is stated that there has been no progress with respect to either criminal complaint or with respect to the representation to cancel the Sale Deed. A representation was also given on 07.06.2013 to the Revenue Divisional Officer, Madhavaram to survey the suit property. However, survey has not been conducted. It is claimed that the 5th defendant who is not
