✦ High Court of India · 10 Jan 2025

CORAM THE HONOURABLE MR.JUSTICE v. LAKSHMINARAYANANC.R.P.No

Case Details High Court of India · 10 Jan 2025

Court

High Court of India

Decided

10 Jan 2025

Bench

Subordinate Advocate Commissioner. The learned Trial As rightly held by the learned Trial The Subordinate

Length

1,126 words

Acts & Sections

Constitution of India

C.R.P.No.5332 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.01.2025CORAM THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANANC.R.P.No.5332 of 2024andC.M.P.No.29617 of 2024S.Jaibalaji.. Petitionervs1.Lakshmi2.G.Ethiraj.. RespondentsPetition filed under Article 227 of the Constitution of India to against the fair and final order dated 18.10.2024 made in I.A.No.1 of 2020 in O.S.No.875 of 2022 on the file of the learned Subordinate Judge, Katpadi, Vellore District. For Petitioner:Mr.R.VasudevanORDERThe plaintiff is the civil revision petitioner. He impugns the order passed by the learned Subordinate Judge at Katpadi in I.A.No.1 of 2020 in O.S.No.875 of 2022 dated 18.10.2024. 1/8 https://www.mhc.tn.gov.in/judis C.R.P.No.5332 of 20242. The plaintiff originally presented the suit before the learned Subordinate Judge at Katpadi, Vellore. He sought for the following reliefs:(a) declare the registered sale deed dated 31.03.2003 as null and void;(b) grant an order of permanent injunction against the defendant restraining him, his men, servants, staff, agents, assigns, heirs, successors-in-interest, representatives, authorized persons, relatives, others etc., from alienating or creating any type of encumbrance over the suit property;(c)Directing the defendant to pay the plaintiffs the costs of this suit and other ancillary proceedings; and(d) Grant such further or other reliefs, as this Honourable Court may deem it fit and proper, just and necessary.3. The claim of the plaintiff is that the property originally belonged to the second defendant and his father Govindasami. The said Govindasami had formed a lay out under the name and style of VMG Nagar. From the lay out so formed, the plaintiff purchased Plot No.51 on 31.03.2023. After having sold the property in favour of the plaintiff, the second defendant fraudulently altered the lay out by giving new plot numbers to the property and sold one such property to the first defendant. 2/8 https://www.mhc.tn.gov.in/judis C.R.P.No.5332 of 20244. The first defendant initiated O.S. No.114 of 2019 on the file of the District Munsif Court at Katpadi for a declaration that the sale deed executed in favour of the plaintiff herein is null and void and for the relief of permanent injunction restraining the civil revision petitioner/present plaintiff from interfering with his peaceful possession and enjoyment of the property. The schedule of property in O.S. No.114 of 2019 on the file of District Munsif at Katpadi is as hereunder:ntYhh; khtl;lk;. ntYhh; gjpt[ khtl;lk;. fhl;gho tl;lk;. nf/tp/ Fg;gk; rhh; gjpit nrh;e;j ntg;g';fndhp fpuhkk;. rh;nt vz;fs;/ 144-1. 144-2. 143. 142-1. 142-2. 147-2 Mf ,itfspy; fye;jhw;nghy; kidfis mikj;J tpw;gid bra;jJ nghf epYitapy; vdJ bgaUf;F bfhLj;j kid vz;/51 f;F ehd;F vy;iyfs; kw;Wk; mst[fs; tptuk;.nkw;go rh;nt vz;fspy; fpHf;F nkw;fhf mike;Js;s 18 mo mfy bjUtpw;F fpHf;F kid vz; 50f;F tlf;F. kid vz; 52f;F bjw;F kid vz; 73f;F nkw;F ,jd; kj;jpapy; fpHf;F nkw;fhf mo 50 tlf;F bjw;fhf mo 22 Mf 1100 rJuo bfhz;l fhypkid kl;Lk;/5. The suit property in O.S.No.875 of 2022 on the file of the Subordinate Judge at Katpadi is as hereunder:3/8 https://www.mhc.tn.gov.in/judis C.R.P.No.5332 of 2024ntYhh; khtl;lk;. ntYhh; gjpt[ khtl;lk;. fhl;gho tl;lk;. fPH;tHpj;Jizah';Fg;gk; rg;oiar; nrh;e;j ntg;g';fnehp fpuhkk;. g[d;bra; rh;nt vz;fspy; rh;nt vz;/ 144-1. 144-2. 143. 142-1. 142-2. 147-2 Mf ,itfspy; fye;jhw;nghy; kidfshf mikj;Js;sjpy; tUk; kid vz;/51 f;F ehd;F vy;iyfSk;; kw;Wk; mst[fSk; tptuk;; gpd;tUkhW:nkw;go rh;nt vz;fspy; fpHf;F nkw;fhf mike;Js;s 18 mo mfy bjUtpw;F fpHf;F. kid vz; 50f;F tlf;F. kid vz; 52f;F bjw;F. kid vz; 73f;F nkw;F. ,jd; kj;jpapy; fpHf;F nkw;fhf mo 50. tlf;F bjw;fhf mo 22 Mf 1100 rJuo gug;gst[ bfhz;l fhypkid kl;Lk;/6. It is pertinent to point out that the first defendant in O.S.No.875 of 2022 is the plaintiff in O.S.No.114 of 2019. He has not disputed the identity of the property in the first suit. According to him, the sale deed that had been executed in favour of the present civil revision petitioner is one for security and not with the intention to pass title to the present plaintiff. This shows that the execution of the document has been admitted by the first defendant 4/8 https://www.mhc.tn.gov.in/judis C.R.P.No.5332 of 2024but he pleads that the document is not a deed of sale but the one executed as a security for loan purposes.7. Though the identity of the property is not in dispute, the plaintiff filed an application in I.A.No.1 of 2020 seeking for appointment of advocate commissioner to measure the suit property according to his document. The second respondent adopted his written statement as a counter to the application for appointment of Advocate Commissioner. The learned Trial Judge dismissed the application. Hence this revision.8. I heard Mr.R.Vasudevan for the civil revision petitioner.9. Mr.Vasudevan argues that the sale made by the second defendant in favour of the first defendant is fraudulent as he has changed the plot numbers in the lay out and had sold the property. He argues that only if the Commissioner visits the property and surveys and submits a report along with the report of a surveyor, it will help the Court with respect to the issues presented in the suit. 10. I have carefully considered the submission of Mr.Vasudevan. I have extracted the schedule of property in both 5/8 https://www.mhc.tn.gov.in/judis C.R.P.No.5332 of 2024the suits in the earlier portion of the judgment. This shows that there is no dispute with respect to the identity of the property by the present plaintiff or by the present second defendant through whom the first defendant claims. Both of them are clear on the property while one pleads that the sale executed in his favour is valid, the other pleads that the sale in favour of the present plaintiff is vitiated on account of certain circumstances.11. The purpose of appointing an advocate commissioner is to elucidate the matter in issue. As rightly held by the learned Trial Judge, if there is a dispute in identity, certainly a commissioner could be appointed. When both parties are ad idem on the nature and identity of the property, the question of appointing the advocate commissioner does not arise at all. That being the situation, I do not find any reason to take a different view than the one taken by the learned Subordinate Judge at Katpadi. 12. Suffice it to state that O.S.No.875 of 2022 being a counter suit to O.S.No.114 of 2019, interest of justice requires that both suits be tried together and common judgment be pronounced in the same. Accordingly, while dismissing the civil revision petition, I pass the following order:6/8 https://www.mhc.tn.gov.in/judis C.R.P.No.5332 of 202412.1 In case, the suit has already not been transferred, O.S.No.114 of 2019 on the file of District Munsif at Katpadi shall be transferred to the file of the learned Subordinate Judge at katpadi to be heard and disposed of along with O.S.No.875 of 2022;12.2 The learned judge shall record common evidence and render a common judgment.13. With the above observation, the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.10.01.2025Index:Yes/NoNeutral Citation:Yes/Nommi7/8 https://www.mhc.tn.gov.in/judis C.R.P.No.5332 of 2024V. LAKSHMINARAYANAN,J.mmiTo1.The Subordinate Judge, Katpadi, Vellore District. 2.The District Munsif, Katpadi.C.R.P.No.5332 of 202410.01.20258/8

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