An Advocate Commissioner can be appointed to ascertain the actual possession and physical features of a suit property in a suit for declaration of title, recovery of possession, and mandatory injunction, where the defendants have encroached upon the property.

C.R.P.(MD).No.17 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on

31.07.2023

Pronounced on

06.12.2023

CORAM

THE HON'BLE MRS. JUSTICE K.GOVINDARAJAN THILAKAVADI

C.R.P.(MD) No.17 of 2022

and

C.M.P.(MD) No.124 of 2022

Aravindhan

...Petitioner

Versus

1.Loouin

2.Symon

... Respondents

Prayer: The Civil Revision Petition is filed under Article 227 of the

Constitution of India, to set aside the order in I.A.No.19 of 2020 in O.S.No.

10 of 2020 dated 06.09.2021 in the court of the District Munsif Court,

Ramanathapuram, Ramanathapuram District.

For Petitioner

:

Mr.S.A.Ajmal Khan

For Respondents :

For R1 :

Mr.J.Barathan

For R2 :

No Appearance

1/7

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

C.R.P.(MD).No.17 of 2023

ORDER

This Civil Revision Petition is preferred against the order in I.A.No.19

of 2020 in O.S.No.10 of 2020 dated 06.09.2021 on the file of the District

Munsif Court, Ramanathapuram.

2. The revision petitioner as plaintiff has filed the above suit in

O.S.No.10 of 2020 for seeking the relief of declaration of title, recovery of

possession and mandatory injunction.

3. In the plaint, it was clearly stated that the suit property was

encroached by the respondents/defendants. The revision petitioner would

submit that the nature of the dispute could be resolved, only if the exact

location of the property is identified by an Advocate Commissioner. Hence,

revision petitioner/plaintiff filed an application in I.A.No.19 of 2020 for

appointment of an Advocate Commissioner, to inspect the suit property and

to file his report. However, the trial Court dismissed the application by

stating that the Advocate Commissioner cannot be appointed to collect

evidence to find out the factum of possession. It is submitted that in the suit

2/7

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

C.R.P.(MD).No.17 of 2023

for declaration, recovery of possession and mandatory injunction, the

appointment of an Advocate Commissioner is essential to prove how the

property was encroached by the respondents. Hence, the order passed by the

trial Court is liable to be set aside.

4. The learned counsel appearing for the revision petitioner submits

that noting down the physical features and other things would not amount to

culling out the evidence. He would further submit that no prejudice will be

caused to other side in such appointment of Advocate Commissioner.

5. To support his contention, he relied upon the decision of this Court

in Maruthai Nattar Vs. Ayyavu [2018 (5) MLJ 447].

6. On the other hand, the learned counsel appearing for the

respondents would contend that the details required by the petitioner would

be gone into only at the time of trial on the basis of evidence and he would

further contend that the Advocate Commissioner cannot be appointed for

collecting evidence to establish the possession of the parties. Therefore, the

trial Court has rightly dismissed the application which calls for no

3/7

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

C.R.P.(MD).No.17 of 2023

interference.

7. Heard learned counsel on both sides and perused the materials on

record.

8. It is settled position that an Advocate Commissioner cannot be

appointed to collect evidence and the parties have to establish their case,

only by oral and documentary evidence. In the case on hand, the suit has

been filed by the revision petitioner/plaintiff for declaration of title, recovery

of possession and mandatory injunction. So far the declaration of title is

concerned, the plaintiff has to establish his case with regard to his title by

adducing oral and documentary evidence. But in this case, the plaintiff had

also sought for relief of recovery of possession and mandatory injunction.

The specific case of the plaintiff is that the defendants have encroached the

property of the plaintiff. When the defendants specifically denied that there

is no encroachment, the na