Advocates:
['M/S M A M RAJA', '', 'A Jenifer Raja', 'WRITTEN SUBMISSION FILED SR /DT', 'M/S P M VISHNUVARTHANAN', '', 'S MADASAMY', 'FOR R SR DT', 'COURT NOTICE', '', 'R P PERIYASAMY', 'R- THE TAHSILDAR', 'Tahsildar Officer', 'Theni Taluk', 'Theni District', 'R- THE DISTRICT COLLECTOR', 'Madurai Main Road', 'WRITTEN ARGUMENT FILED SR DT R']

CRPMD)No.972 of 2020

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 18.03.2021

CORAM:

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

CRP(MD)No.972 of 2020

and

CMP(MD)No.6396 of 2020

P.Murugan

... Petitioner/Plaintiff

vs

1)P.Periyasamy

2)Nanthavanam

3)The Tahsildar,

Tahsildar Office,

Theni Taluk,

Theni District.

4)The District Collector,

Madurai Main Road,

Theni Taluk,

Theni District.

... Respondents/Defendants

Petition filed under Article 227 of the Constitution of India,

against the fair and decreetal order passed in I.A.No.2 of 2020 in

O.S.No.26 of 2015 on the file of the District Munsif, Theni, dated

02.11.2020.

For Petitioner

: Mr.M.A.M.Raja

For R1

: No appearance

For R2

: Mr.P.M.Vishnuvarthanan

For R3 & R4

Mr.J.Gunaseelan Muthiah

Additional Government Pleader

ORDER

This revision petition has been filed against the fair and

decreetal order passed in I.A.No.2 of 2020 in O.S.No.26 of 2015 on

the file of the District Munsif, Theni, dated 02.11.2020.

2.The revision petitioner as plaintiff filed the above suit for

permanent injunction and mandatory injunction against the

respondents/defendants. Pending suit, the petitioner filed the

present I.A.No.2 of 2020 for appointment of advocate commissioner

stating that about 30 cents in the suit property is encroached by

the defendants 1 and 2 and therefore, it is necessary to appoint a

commissioner to inspect the suit property with the help of Surveyor

and to file a report and plan. The 2^nd respondent/2^nd defendant

filed counter expressing no objection for appointment of

commissioner, but the trial Court dismissed the commissioner

application by impugned order dated 02.11.2020, against which, this

revision is filed.

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

CRPMD)No.972 of 2020

3.The learned counsel for the petitioner would state that the

trial Court failed to note that the suit is not only for permanent

injunction but also for mandatory injunction to remove the

encroachment and therefore, appointment of commissioner with the

help of surveyor is indeed to measure the quantum of encroachment

and the 2^nd respondent also has no objection for appointment of

commissioner. Thus, he would pray for allowing the revision

petition.

4.The learned counsel for the 2^nd respondent would state that

the 3^rd respondent/3^rd defendant/revenue authority removed the

encroachment made by the petitioner/plaintiff prior to the filing of

the suit and the same was completely suppressed by the

petitioner/plaintiff and the present commissioner application is

only an attempt to collect evidence to prove possession and the same

has been rightly dismissed by the learned Judge which does not

require interference by this Court. In support of his contention

that advocate commissioner cannot be appointed to prove possession,

he would rely on various decisions.

5.Heard the learned counsel for the petitioner as well as the

respondents 2 to 4. There is no appearance for the 1^st respondent.

6.Perusal of record shows that the petitioner has filed a suit

for permanent injunction and mandatory injunction. He has filed a

petition for appointment of advocate commissioner stating that the

defendants 1 and 2 have encroached 30 cents of land in the suit

property and to prove the alleged encroachment, appointment of

advocate commissioner is necessary. Though the 2^nd respondent/2^nd

defendant filed counter in the commissioner application stating that

the suit was dismissed for default in 2017 and it was restored in

2020 and only on the date fixed for trial, the commissioner

application has been filed with an intention to drag on the

proceedings, he had stated that he has no objection for appointment

of commissioner. The learned Judge relying upon the decisions in

Selvaraj vs. Kalarani, [2017 SCC Online Mad 25869] and Dhanalakshmi

vs. Kumaresan [2017 SCC Online Mad 19229], di