C.M.A(MD)No.774 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Date of Reserving the Judgment

Date of Pronouncing the Judgment

23.03.2022

05.04.2022

CORAM:

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

C.M.A(MD)No.774 of 2021

and

C.M.P(MD).No.7107 of 2021

Selvaraj

... Appellant

Vs

Perumal

... Respondent

PRAYER: Civil Miscellaneous Appeal filed under Section 43 Rule 1(U)

of CPC, to set aside the judgment and decree dated 17.08.2020 passed

in A.S.No.111 of 2015 on the file of the Subordinate Court,

Thoothukudi reversing the judgment and decree dated 31.08.2015

passed in O.S.No.374 of 2006 on the file of District Munsif Court,

Thoothukudi.

For Appellant : Mr.G.Prabhu Rajadurai

For Respondent : Mr.C.Mayil Vahana Rajendran

JUDGMENT

************

The plaintiff is the appellant herein. This Civil Miscellaneous

Appeal has been filed to set aside the judgment and decree dated

17.08.2020 passed in A.S.No.111 of 2015 on the file of the

Subordinate Court, Thoothukudi, reversing the judgment and decree

dated 31.08.2015 passed in O.S.No.374 of 2006 on the file of

District Munsif Court, Thoothukudi.

2. For the sake of convenience, the parties are called as per

their ranking in the Tribunal.

3. The appellant/plaintiff has filed a suit in O.S.No.374 of

2006 before the District Munsif Court, Thoothukudi, seeking

permanant injuction against the defendant for putting up any

construction in the Item No.1 of the suit property. Subsequently, he

has filed an Interlocatury Application to include the prayer of

mandatory injuction and remove the superstructure and constructions

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https://hcservices.ecourts.gov.in/hcservices/

C.M.A(MD)No.774 of 2021

put up by the defendant in the B-scheule property and for the

recovery of the same.

4. During the course of trial, an Advocate Commissioner was

appointed in I.A.No.507 of 2007. The Advocate Commissioner along

with the Surveyor has inspected the suit property in the presence of

the respective counsels and also filed a report. As against the

Advocate Commissioner's report, the defendant/respondent did not

file any objections against the report.

5. On the side of the appellant/plaintiff, two witnesses were

examined as PW1 and P.W.2 and 3 documens were marked as Exs.P1 to

P3. On the side of the respondent/defendant, three witnesses were

examined as D.W.1 to D.W.3 and 6 documents were marked as Ex.B1 to

Ex.B6 and one Court document was marked.

6. The learned trial Judge, after considering the oral and

documentary evidence, came to the conclusion that the defendant had

encroached the upon the Item No.2 of the scheudle property and the

northen side 6 feet running from south side to Northern on the

western side on the easterten side four feets, the defendnat has

encorached the property and based upon the Advocate Commissioner

report, the trial Court decreed the suit as prayed for. Aggrived

against the said Judgment and Decree, the defendant has preferred

the Apeal Suit in A.S.No.111 of 2015 before the Subordinate Court,

Thoothukudi. Pending appeal suit, the appellant/defendant has filed

I.A.No.1 of 2019 for appointment of Advocate Commissioner to

measure the property from the survey stone instead of cadel stone

and to remeasure the property by observing that assistance of the

Surveyor was not availed by the Advocate Commissioner appointed by

the trial Court and accordingly, allowed the appeal and remmitted

back the matter to the trial Court for the report of the newly

appointted Advocate Commissioner. As against the order of said

remand, the plaintiff has preferred this appeal.

7. Heard the rival submissions made by the respective parties

and perused the materials available on record.

8(a). On perusal of the Advocate Commissioner report filed in

I.A.507 of