C.R.P.(PD) (MD) No.293 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 02.02.2022

CORAM:

THE HONOURABLE MS.JUSTICE P.T.ASHA

C.R.P.(PD) (MD) No.293 of 2017

and

C.M.P.(MD) No.1404 of 2017

S.Easwaran

.. Petitioner/Petitioner/

Plaintiff

-vs-

1.M.Shanmuganathan

2.Shanthi Chinnathai

.. Respondents/Respondents/

Defendants

Prayer :- Petition filed under Article 227 of the Constitution of

India to set aside the fair and decreetal order passed in I.A.No.737

of 2016 in O.S.No.51 of 2015 dated 22.11.2016 on the file of

District Munsif Court, Ambasamudram.

For Petitioner

:

Mr.M.Kannan

For Respondents

:

Mr.H.Arumugam

******

ORDER

The plaintiff has filed this Revision challenging the order

dated 22.11.2016 in I.A.No.737 of 2016 in O.S.No.51 of 2015 passed

by the learned Principal District Munsif, Ambasamudram in and by

which, the learned Judge dismissed the petitioner's application

seeking appointment of an Advocate Commissioner for inspecting the

schedule mentioned property along with the Sale Deeds, note down its

measurements and physical features with the help of the Taluk

Surveyor and submit a detailed report.

2.

The brief facts preceding the filing of this petition are

as follows:-

2.1. The plaintiff had filed the suit in O.S.No.51 of 2015 on

the file of the District Munsif, Ambadamudram for a declaration that

he is the owner of the suit property and for a consequential

injunction.

2.2. The suit property was described as an extent of 79 cents

comprised in S.No.278/1, Old No.278, Vikaramasingapuram Village,

Ambasamudram, Tiruneveli within specified boundaries.

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C.R.P.(PD) (MD) No.293 of 2017

3.

The plaintiff would contend that he is the owner of the

property by virtue of a registered Sale Deed dated 25.01.2010 from

which date, he has been in possession and enjoyment of the property.

The 79 cents in S.No.278 was subsequently subdivided as S.No.278/1

and Patta No.1840 was issued individually to the plaintiff. The 1^st

defendant, who had no right, title or interest to the suit property,

had claimed a right on the basis that he had purchased the same from

the 2^nd defendant on 25.09.2007. The plaintiff would submit that

this Sale Deed is null and void and fabricated one.

4.

The respondents had filed a written statement objecting and

refuting the claim of the plaintiff. The plaintiff had thereafter,

taken out an application in I.A.No.737 of 2016 for appointing an

Advocate Commissioner for the reasons stated supra.

5.

The reason which has prompted the petitioner/plaintiff to

file the application has been set out in paragraph 6 of the

affidavit filed in support of the application in which, the

plaintiff would contend that the respondents have filed their

written statement where there is a difference in measurement,

boundaries and location of the properties and therefore, he sought

to have an Advocate Commissioner appointed to inspect and note down

the physical features.

6.

The 1^st defendant had countered the said contention by

contending that the application is nothing but an attempt to gather

evidence and cannot be permitted. The learned Principal District

Munsif, Ambasamudram, after hearing both parties, dismissed the said

application by his detailed order dated 22.11.2016. Challenging

this order, the revision petitioner is before this Court.

7.

Once again the only argument advanced was that in the

written statement of the defendants, the measurement, identity and

location of the property has been wrongly given and therefore, an

Advocate Commissioner has to be appointed.

8.

It is an axiomatic principle of law that a plaintiff has to

win or loose his case on the strength of his case and not on the

weakness of the defence. The plaintiff has come forward with the

case that he has purchased the entire extent in S.No.278, which has

been now subdivided