High Court · 2025

C.R.P.No.1245 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.03.2025CORAM:THE HONOURABLE MS.JUSTICE P.T.ASHAC.R.P.No.1245 of 2025C.M.P.No.7492 of 20251.Hemalatha @ semala2.Malli3.Mala...PetitionersVsE.Thiruvengadam...RespondentPRAYER :- Civil Revision Petition is filed under Article 227 of the Constitution of India, pleased to set aside the Fair and Decreetal order dated 14.10.2024 passed in I.A.No.3 of 2024 in O.S.No.231 of 2015 on the file of Principal District Munsif Court at Thiruvallur.For Petitioners: Mr.R.P.VictorORDERThe defendants are the revision petitioners before this Court and they seek to challenge the order passed by the learned Principal District Munsif, Tiruvallur in I.A.No.3 of 2024 in O.S.No.231 of 2015 which is an application filed by the defendants to appoint an Advocate 1/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025Commissioner along with the Taluk Surveyor and V.A.O to measure and note down the physical features of the suit property and the location of the property and thereafter to file a report with sketch. 2.The plaintiff who is the respondent herein had filed the suit O.S.No.231 of 2015 on the file of the aforesaid Court for declaration of their right and title to the suit schedule property and for a consequential injunction. The suit schedule property was an extent of 0.07 acres comprised in old S.No.43/2 and new Natham S.No.43/17, patta No.43 , Melvilagam Village, Hamlet of Nemiliagaram Panchayat, Tiruvallur, which was bounded as:-East by-S.No.43/10West by-S.No.43/18North by-Perumal Kovil StreetSouth by-Street3.It is the case of the plaintiff that he is the absolute owner of the suit property. The suit property was originally comprised in S.No.43/2 and it belonged to one Murugan, S/o. Ragavan. From him the plaintiff's father Ettiappan, S/o.Vellai had purchased the same under a registered sale deed dated 05.01.1947. He was in possession and enjoyment of the 2/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025property till his death and after his demise his two sons namely, the plaintiff and his brother Gopal continued in possession and enjoyment of the same. Thereafter, S.No.43/2 was reassigned a new S.No.43/17 and patta was granted jointly in the name of the plaintiff and his brother Gopal, each being entitled to a 3 ½ cents.4.By a sale deed dated 02.06.1998 his brother Gopal had sold his share in the property in favour of the plaintiff. As a result of which the plaintiff became the absolute owner of the entire extent of 7 cents. The defendants who owned a house site on the west of the suit property started claiming a right to an excessive extent which extended into the plaintiff’s property and day after day they were creating problems and threatening to dismantle the thatched house of the plaintiff. The defendants has no manner of right, title or interest over the said property. Since the obstruction was continuing the plaintiff had come forward with the suit in question.5.In the written statement filed by the first defendant which is adopted by the other defendants they had denied the allegations contained in the plaint and would submit that the property comprised in 3/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025S.No.43/2 measuring an extent of 86 cents belonging to one Murugan son of Ragavan. The defendant’s father Palayam had purchased 7 cents out of 86 cents from said Murugan and he has been in possession and enjoyment of the suit property and another property measuring 5 cents. The defendant’s father had put up thatched house and was living there with his family members. After the purchase, the survey number was sub divided as 43/16 and patta No.31 was assigned to the property owned by Palayam, the defendant’s father. The defendants are the only legal heirs of late Palayam and are the exclusive owners of the suit property. After the death of Palayam, the defendants had entered into a registered partition deed dated 24.07.2017 which was registered as D.No.1012/2017, SRO, Tiruvallur.6.The plaintiff is the brother of the first defendant and taking advantage of the fact that there are no male members he is attempting to fabricate documents and take away the property. The property purchased by Palayam from Murugan measuring 5 cents under a registered sale deed dated 05.02.1994 was within the following boundaries. West by Palayam’s house site, North by Perumal Kovil Street, East by Kannimuthu house site and South by Pattammal land. The defendant’s 4/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025father had put up a thatched house and even now the defendants 1 and 2 are residing there and they have settled their share in favour of defendants 3 and 4 under a registered settlement deed dated 05.02.1964. During the UDR, the defendant’s property has been wrongly sub divided as 43/16 instead of 43/17. The defendants 3 and 4 have made a representation to the authorities to rectify the defect. 7.After the cross examination of P.W.1 the defendants have come forward with the application in question for appointment of an Advocate Commissioner.8.The said application has been resisted by the plaintiff by contending that the defendants did not have any share in the property and they are trying to set up a new story after the evidence. A very reading of the reasons for the appointment of an Advocate Commissioner would clearly go to show that it is nothing but an attempt to gather evidence. Therefore, the same cannot be allowed. 9.The learned Principal District Munsif, Tiruvallur after hearing both parties petition had rejected the application and observed that a 5/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025Commissioner cannot be appointed to note down the defendant’s house which is nothing but an attempt to establish that the defendants are residing in the house and an attempt to collect evidence. Challenging the same, the defendants are before this Court.10.A perusal of the affidavit filed in support of the petition for appointment of Advocate Commissioner would clearly demonstrate the real reason for seeking appointment of an Advocate Commissioner. The petitioner has stated as follows in the affidavit:- Mfnt ,k;khz;g[kpF ePjpkd;wk; jhdhf Kd;te;J xU tHf;fwp"h; Mizaiu epakpj;J fhty; Jiwapdupd; cjtpnahL nkw;go jhth brhj;J ve;j ,lj;jpy; ve;j bjUtpy; ,Uf;fpwJ vd;gij tUtha;j; Jiwapduhd tl;lhl;rpau;. tl;l epy msitau; kw;Wk; fpuhk epu;thf mYtyu; Kd;dpiyapy; nkw;go jhth brhj;jpid mstPL bra;Jk;. nkYk; v';fSf;F nkw;go fpuhkj;jpy; ,Uf;Fk; v';fSf;F brhe;jkhd K:d;W ,l';fisa[k; fz;lwpe;J mij tUtha; Jiwapdupd; mjpfhupfs; kw;Wk; ePjpkd;w Mizahsupd; Kd;dpiyapy; mstPL bra;J me;j mwpf;ifapida[k;. nkw;go fpuhkj;jpd; fpuhk tiuglk; (VILLAGE FMB), v';fs; K:d;W brhj;jpd; gl;lh. rpl;lh. ml';fy; Mfpatw;iw tUtha; Jiwapdupd; mjpfhupfsplk; bgw;W bfhz;L ,k;khz;g[kpF ePjpkd;wk; tHf;F Kotjw;Fs; rku;g;gpf;f ntz;Lkha; gzpnthL gpuhu;j;jpj;J nfl;Lf;bfhs;fpnwd;/6/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 202511.This is nothing short of evidence gathering to prove the defendant's claim title to the property on the basis of a sale deed in favour of their father Palayam, registered partition deed dated 24.07.2017 and the revenue records. The parties have to prove their case on the basis of the documents and cannot use the services of an Advocate Commissioner to collect their evidence and the defendant who comes forward with the condition that he has purchased property within four boundaries is now seeking for an appointment of an Advocate Commissioner to locate the very same property. The Court below has rightly rejected the said application and I see no reason to interfere with the same. 12.The Civil Revision Petition is accordingly dismissed. No costs. Consequently, connected miscellaneous petition is closed. 27.03.2025Index: Yes/NoInternet: Yes/NoSpeaking Order/Non Speaking Orderep To7/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025The Principal District Munsif Court, Thiruvallur.P.T.ASHA , J, epC.R.P.No.1245 of 2025C.M.P.No.7492 of 20258/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 202527.03.20259/9

C.R.P.No.1245 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.03.2025CORAM:THE HONOURABLE MS.JUSTICE P.T.ASHAC.R.P.No.1245 of 2025C.M.P.No.7492 of 20251.Hemalatha @ semala2.Malli3.Mala...PetitionersVsE.Thiruvengadam...RespondentPRAYER :- Civil Revision Petition is filed under Article 227 of the Constitution of India, pleased to set aside the Fair and Decreetal order dated 14.10.2024 passed in I.A.No.3 of 2024 in O.S.No.231 of 2015 on the file of Principal District Munsif Court at Thiruvallur.For Petitioners: Mr.R.P.VictorORDERThe defendants are the revision petitioners before this Court and they seek to challenge the order passed by the learned Principal District Munsif, Tiruvallur in I.A.No.3 of 2024 in O.S.No.231 of 2015 which is an application filed by the defendants to appoint an Advocate 1/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025Commissioner along with the Taluk Surveyor and V.A.O to measure and note down the physical features of the suit property and the location of the property and thereafter to file a report with sketch. 2.The plaintiff who is the respondent herein had filed the suit O.S.No.231 of 2015 on the file of the aforesaid Court for declaration of their right and title to the suit schedule property and for a consequential injunction. The suit schedule property was an extent of 0.07 acres comprised in old S.No.43/2 and new Natham S.No.43/17, patta No.43 , Melvilagam Village, Hamlet of Nemiliagaram Panchayat, Tiruvallur, which was bounded as:-East by-S.No.43/10West by-S.No.43/18North by-Perumal Kovil StreetSouth by-Street3.It is the case of the plaintiff that he is the absolute owner of the suit property. The suit property was originally comprised in S.No.43/2 and it belonged to one Murugan, S/o. Ragavan. From him the plaintiff's father Ettiappan, S/o.Vellai had purchased the same under a registered sale deed dated 05.01.1947. He was in possession and enjoyment of the 2/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025property till his death and after his demise his two sons namely, the plaintiff and his brother Gopal continued in possession and enjoyment of the same. Thereafter, S.No.43/2 was reassigned a new S.No.43/17 and patta was granted jointly in the name of the plaintiff and his brother Gopal, each being entitled to a 3 ½ cents.4.By a sale deed dated 02.06.1998 his brother Gopal had sold his share in the property in favour of the plaintiff. As a result of which the plaintiff became the absolute owner of the entire extent of 7 cents. The defendants who owned a house site on the west of the suit property started claiming a right to an excessive extent which extended into the plaintiff’s property and day after day they were creating problems and threatening to dismantle the thatched house of the plaintiff. The defendants has no manner of right, title or interest over the said property. Since the obstruction was continuing the plaintiff had come forward with the suit in question.5.In the written statement filed by the first defendant which is adopted by the other defendants they had denied the allegations contained in the plaint and would submit that the property comprised in 3/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025S.No.43/2 measuring an extent of 86 cents belonging to one Murugan son of Ragavan. The defendant’s father Palayam had purchased 7 cents out of 86 cents from said Murugan and he has been in possession and enjoyment of the suit property and another property measuring 5 cents. The defendant’s father had put up thatched house and was living there with his family members. After the purchase, the survey number was sub divided as 43/16 and patta No.31 was assigned to the property owned by Palayam, the defendant’s father. The defendants are the only legal heirs of late Palayam and are the exclusive owners of the suit property. After the death of Palayam, the defendants had entered into a registered partition deed dated 24.07.2017 which was registered as D.No.1012/2017, SRO, Tiruvallur.6.The plaintiff is the brother of the first defendant and taking advantage of the fact that there are no male members he is attempting to fabricate documents and take away the property. The property purchased by Palayam from Murugan measuring 5 cents under a registered sale deed dated 05.02.1994 was within the following boundaries. West by Palayam’s house site, North by Perumal Kovil Street, East by Kannimuthu house site and South by Pattammal land. The defendant’s 4/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025father had put up a thatched house and even now the defendants 1 and 2 are residing there and they have settled their share in favour of defendants 3 and 4 under a registered settlement deed dated 05.02.1964. During the UDR, the defendant’s property has been wrongly sub divided as 43/16 instead of 43/17. The defendants 3 and 4 have made a representation to the authorities to rectify the defect. 7.After the cross examination of P.W.1 the defendants have come forward with the application in question for appointment of an Advocate Commissioner.8.The said application has been resisted by the plaintiff by contending that the defendants did not have any share in the property and they are trying to set up a new story after the evidence. A very reading of the reasons for the appointment of an Advocate Commissioner would clearly go to show that it is nothing but an attempt to gather evidence. Therefore, the same cannot be allowed. 9.The learned Principal District Munsif, Tiruvallur after hearing both parties petition had rejected the application and observed that a 5/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025Commissioner cannot be appointed to note down the defendant’s house which is nothing but an attempt to establish that the defendants are residing in the house and an attempt to collect evidence. Challenging the same, the defendants are before this Court.10.A perusal of the affidavit filed in support of the petition for appointment of Advocate Commissioner would clearly demonstrate the real reason for seeking appointment of an Advocate Commissioner. The petitioner has stated as follows in the affidavit:- Mfnt ,k;khz;g[kpF ePjpkd;wk; jhdhf Kd;te;J xU tHf;fwp"h; Mizaiu epakpj;J fhty; Jiwapdupd; cjtpnahL nkw;go jhth brhj;J ve;j ,lj;jpy; ve;j bjUtpy; ,Uf;fpwJ vd;gij tUtha;j; Jiwapduhd tl;lhl;rpau;. tl;l epy msitau; kw;Wk; fpuhk epu;thf mYtyu; Kd;dpiyapy; nkw;go jhth brhj;jpid mstPL bra;Jk;. nkYk; v';fSf;F nkw;go fpuhkj;jpy; ,Uf;Fk; v';fSf;F brhe;jkhd K:d;W ,l';fisa[k; fz;lwpe;J mij tUtha; Jiwapdupd; mjpfhupfs; kw;Wk; ePjpkd;w Mizahsupd; Kd;dpiyapy; mstPL bra;J me;j mwpf;ifapida[k;. nkw;go fpuhkj;jpd; fpuhk tiuglk; (VILLAGE FMB), v';fs; K:d;W brhj;jpd; gl;lh. rpl;lh. ml';fy; Mfpatw;iw tUtha; Jiwapdupd; mjpfhupfsplk; bgw;W bfhz;L ,k;khz;g[kpF ePjpkd;wk; tHf;F Kotjw;Fs; rku;g;gpf;f ntz;Lkha; gzpnthL gpuhu;j;jpj;J nfl;Lf;bfhs;fpnwd;/6/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 202511.This is nothing short of evidence gathering to prove the defendant's claim title to the property on the basis of a sale deed in favour of their father Palayam, registered partition deed dated 24.07.2017 and the revenue records. The parties have to prove their case on the basis of the documents and cannot use the services of an Advocate Commissioner to collect their evidence and the defendant who comes forward with the condition that he has purchased property within four boundaries is now seeking for an appointment of an Advocate Commissioner to locate the very same property. The Court below has rightly rejected the said application and I see no reason to interfere with the same. 12.The Civil Revision Petition is accordingly dismissed. No costs. Consequently, connected miscellaneous petition is closed. 27.03.2025Index: Yes/NoInternet: Yes/NoSpeaking Order/Non Speaking Orderep To7/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 2025The Principal District Munsif Court, Thiruvallur.P.T.ASHA , J, epC.R.P.No.1245 of 2025C.M.P.No.7492 of 20258/9 https://www.mhc.tn.gov.in/judis C.R.P.No.1245 of 202527.03.20259/9