C.R.P.No.2364 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 30.06.2022

PRONOUNCED ON : 14.10.2022

CORAM :

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.R.P.No.2364 of 2018

and CMP.No.14655 of 2018

1.Manoharan (died)

2.M.Vanithamani

3.M.Kumar

4.Suganthi

5.Vasanthi

6.N.Mythili

..Petitioners/Plaintiffs

Vs

Aalan

..Respondent/defendant.

PRAYER: Civil Revision Petition filed under Article 227 of

Constitution of India, praying to set aside the fair and decretal order

dated 20.06.2018 made in I.A.No.457 of 2018 in O.S.No.81 of 2008

pending on the file of District Munsif Court, Thiruvotriyur.

For Petitioners : Mr.P.C.Harikumar

For Respondent : Mr.E.Prabu

1/8

https://www.mhc.tn.gov.in/judis

C.R.P.No.2364 of 2018

ORDER

The revision petitioners herein are the plaintiffs. They filed the

suit for permanent injunction. They filed I.A.No.457 of 2018 praying

to appoint an Advocate Commissioner to inspect the plaint schedule

property and note down the physical features of the property along

with Head surveyor/Surveyor of the Saidapet Taluk and file the report.

2. In the said I.A. defendant filed counter stating that D.W.1 was

cross examined by the plaintiffs and when the matter was posted for

arguments, the I.A., has been filed seeking for appointment of

Advocate Commissioner to inspect plaint schedule property and note

down physical feature of the property along with Head Surveyor,

Saidapet Taluk and file the report.

3. According to the respondent/defendant, note down the

2/8

https://www.mhc.tn.gov.in/judis

C.R.P.No.2364 of 2018

physical features of the property is not material or relevant for the

purpose of deciding the relief sought for in the suit. The attitude of the

petitioner is to drag on the proceedings and the suit is of the year

2008.

4. The learned Judge, trial court, while passing orders in

I.A.No.457 of 2018, pointed out that according to the

petitioner/plaintiff, the respondent/defendant has encroached his

property. The defendant would submit that documentary evidence

along with the oral evidence has been completed on both sides and the

suit is posted for arguments and now after having completion of 10

years, the petitioner has filed the petition for appointment of

commissioner. The learned Judge also held that the suit is posted for

arguments and so this kind of petition is filed with intention to protract

the proceedings for the collection of evidence and so appointment of

advocate commissioner is not necessary at this stage and in such view,

dismissed the I.A.

3/8

https://www.mhc.tn.gov.in/judis

C.R.P.No.2364 of 2018

5. Aggrieved by the same, the present civil revision petition is

filed.

6. The learned counsel for the petitioners would submit that in

the written statement filed by the defendant, the defendant claims

ownership of the property under S.No.450/2B1 covered under the

Settlement Deed dated 29.03.2007 said to have been executed by the

defendant’s mother and the same was registered as Document No.4571

of 2007 on the file of Sub Registrar, Red Hills and he does not claim

any right over the property covered under Old.S.No.450/5 and present

S.No.450/6 and in such circumstances it is the duty of the revenue

officials to make inspection of the property along with FMB sketch

and to file a report and it will give quietus to the lis between the

parties.

7. The petitioners would also contend that D.W.1 himself admits

that if the property would have been surveyed based on Ex.A.1 then

only the present issue can be adjudicated.

4/8

https://www.mhc.tn.gov.in/judis

C.R.P.No.2364 of 2018

8. The learned counsel for the petitioners placed reliance on the

following citations to support their contention that if no prejudice

would be caused by the appointment of an advocate commissioner for

the purpose of inspecting the property and submitting his report, local

investigation is the best w