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2024 Supreme(Online)(MAD) 16617

HIGH COURT OF MADRAS
Honourable Mr Justice V. LAKSHMINARAYANAN
K. Palanisamy – Appellant
Versus
P. Palanisamy – Respondent


Judgement Key Points

Based on the provided legal document, the key points are as follows:

  1. The case involves a dispute over the existence and protection of a common cart tract that was allegedly damaged by the defendants (!) (!) .

  2. The plaintiff seeks a mandatory injunction to preserve the cart tract, asserting that it is a common pathway created by mutual agreement and used for decades (!) (!) .

  3. The defendants deny the existence of the cart tract, claiming it does not exist and that the plaintiff is attempting to improperly gather evidence (!) (!) .

  4. The court emphasizes that the appointment of an Advocate Commissioner is permissible under the relevant procedural rules for elucidating matters in dispute, including the existence of physical features like the cart tract (!) (!) .

  5. The court clarifies that the Advocate Commissioner’s report is considered evidence and can be used to establish facts such as the existence or non-existence of the cart tract (!) (!) .

  6. The court notes that the suit is primarily concerned with the existence of the cart tract, which is a matter in dispute, and that this can be effectively investigated through the appointment of an Advocate Commissioner (!) (!) .

  7. The court rejects the argument that the suit's focus on a mandatory injunction rather than a declaration of title precludes the appointment of an Advocate Commissioner, emphasizing that elucidation of facts is permissible in such cases (!) (!) .

  8. The court also dismisses the objection that the evidence had already been recorded, stating that the appointment of an Advocate Commissioner can occur at this stage to aid in fact-finding (!) (!) .

  9. It is highlighted that the existence of the cart tract may not be reflected in revenue records, as it is a result of an agreement between parties, and such physical features can be established through inspection (!) (!) .

  10. The court concludes that the application for appointment of an Advocate Commissioner should be allowed, and the District Munsif is directed to appoint an experienced Commissioner and surveyor to inspect the property and submit a report (!) .

  11. The order of the lower court dismissing the application is set aside, and the revision petition is allowed with no costs (!) (!) .

  12. Overall, the court affirms the procedural correctness of appointing an Advocate Commissioner for elucidating disputed physical features in property disputes, especially when such features are not conclusively documented in official records.


ORDER

This civil revision petition arises against the order of the learned District Munsif at Perundurai in I.A.No.4 of 2022 in O.S.No.145 of 2018 dated

09.10.2023.

2. The plaintiff is the civil revision petitioner.

3. O.S.No.145 of 2018 was presented for the relief of mandatory injunction and other allied reliefs. According to the plaintiff, the suit schedule mentioned property and other properties originally belonged to one Ramaya Gounder and his co-sharers. They created a 10 feet wide pathway over S.F.No.52/A for convenient enjoyment of the said property. In order to enjoy their properties individually, Ramaya Gounder, one Koppana Gounder, and other sharers entered into a partition deed on 18.12.1975.

4. By virtue of this partition deed, a 10 feet wide cart tract was shown as common to all the owners and the D schedule mentioned property fell to the share of the petitioner's father. The cart tract, that had been set apart for the common use of all the owners, had been left open for several decades, till the death of Koppana Gounder on 02.02.2007. Subsequently, his legal heirs Pavathal, Palaniammal, Kolandhayammal, and Pavalakodi executed a release deed for the suit schedule mentioned

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