Arivalagan vs Raja & Ors.

This civil revision petition has been filed by the 4th plaintiff in O.S.No.34 of 2014.

The suit has been filed by the revision petitioner, along with three others, seeking the relief of injunction restraining the defendants / their

representatives / agents and persons claiming under them from interfering with the plaintiffs'' possession and enjoyment of the suit property.

Brief facts leading to the filing of this petition are as follows:

(a) The suit properties originally belonged to one Mariammal, wife of S.V.P.Natarajan Nadar. The original owner sold the suit properties in favour

of one M.Pasupathi on 05.4.1973. Out of 90 cents, the first plaintiff by the sale deed, dated 03.07.1987, purchased item No.1 of the suit

property. The second plaintiff by the sale deed, dated 03.7.1987, purchased item No.2 of the suit property. The third item of the property

belonged to 3rd plaintiff by virtue of a settlement deed, dated 20.02.2006, executed by one Thavamani. The 4th plaintiff purchased the 4th item of

the property by way of sale deed, dated 03.07.1987. Thus, the plaintiffs are in possession and enjoyment the suit properties from the date of

purchase, of which the defendants have no right, title or interest.

(b) According to the plaintiffs, the first defendant is a businessman and realtor, and at his instigation, the defendants 2 and 3 are claiming right over

the suit properties. The 4th defendant wanted the property to be measured and he made a written request also. When the plaintiffs 2 and 3 went

for the purpose of measuring the property, they were informed that the property has been already measured. But, the property was not really

measured. The rise in the price of real estate have made the defendants to make unfair and illegal claims. So saying the plaint was filed.

Subsequently, the plaint has been amended seeking the relief of recovery of possession in respect of item Nos.1, 2 and 3 of the suit properties and

also seeking mandatory injunction for the removal of superstructure over those items.

(c) In the suit, the defendants have filed their written statements. During the pendency of the suit, the 2nd and 3rd defendants filed I.A.No. 429 of

2007 under Order 26 Rule 9 C.P.C. seeking appointment of an Advocate Commissioner to measure the suit properties with the help of Surveyor.

The said application was allowed, appointing one Mr.Manikandan as Advocate Commissioner and the said Commissioner has also filed his report

and plan.

(d) Expressing grievance that the properties were not measured properly, the 4th plaintiff filed an interlocutory application in I.A.No.103 of 2014

seeking to scrap the earlier Advocate Commissioner''s report, to appoint a new Advocate Commissioner and to direct him to measure the suit

properties with the help of Assistant Director of Survey.

(e) Before the Court below, the respondents 1 and 2 herein / defendants 2 and 3 did not file any objection and they remained ex parte. The 3rd

respondent / 1st defendant filed his objection. The respondents 4 to 6 / Plaintiffs 1 to 3 filed their affidavit in support of the revision petitioner / 4th

plaintiff.

(f) The Court below has dismissed I.A.No.103 of 2014 holding that without any oral and documentary evidence, the plaintiffs 1 to 4 have alleged

that the defendants 1 to 3 have created bogus sub division records and that there is no sufficient reason to scrap the report of the Advocate

Commissioner and therefore, the relief sought for by the 4th plaintiff cannot be considered. Aggrieved by the same, the 4th plaintiff has filed this

civil revision petition.

Heard the learned senior counsel appearing for the revision petitioner and the learned counsel appearing for the respondents and perused the

records carefully.

When the matter came up ""for admission"" on 11.11.2016, this Court has granted an interim order of stay for a period of four weeks and

thereafter, it was periodically extended.

It is brought to the knowledge of this Court by the third respondent / Party-in-person that the revision petitioner / 4th plaintiff by playing fraud

and misrepresentation that the earlier Advocate Commissioner is no more and there is no chance for examining him regarding the said variation,

etc. in the Commissioner report, has obtained the interim order of stay from this Court.

As rightly stated by the third respondent, in ground No.3 as well as in paragraph No.5 of the affidavit filed in support of the interim application,

the revision petitioners have stated so. It is seen from the record that after getting the interim order fraudulently, the said counsel has given change

of vakalath and handed over the bundle to the present counsel. When it was pointed out to the learned counsel for the revision petitioner, he has

filed an amendment petition in C.M.P.(MD).No. 11483 of 2017 seeking to delete the said averments in the grounds of revision petition as well as

in the miscellaneous petition and also filed an additional affidavit stating that the earlier counsel due to misunderstanding of the pronunciation of the

words, while issuing instructions regarding the death of revision petitioner''s counsel on record before the Court below, wrongly mentioned that the

Advocate Commissioner died in the affidavit and seeking unconditional apology for making such wrong statement.

The reason assigned by the revision petitioner is not acceptable. The above act of the revision petitioner as well as the earlier counsel who

appeared for the revision petitioner is condemnable and such an act cannot be tolerated. The revision petitioner has been kept silent, till the Court

raises such question, which would also prove the indifferent attitude of the revision petitioner. Hence, this Court is not inclined to order the

amendment petition. Though this Court is inclined to dismiss the revision petition itself without going into the merits of the same, considering the

elongation of time and plight of the respondents, this Court is inclined to dispose of the matter with a cost of Rs.50,000/- payable by the revision

petitioner / 4th plaintiff.

Considering the grounds of revision, this Court felt that the Commissioner report have to be considered contextually, that is in the light of the oral

and documentary evidence available with regard to the suit properties. The Court below has also rightly dismissed the interlocutory application filed

by the revision petitioner holding that without any oral and documentary evidence, the grounds urged by the revision petitioner cannot be

considered. Now, it is admitted by the revision petitioner that the Advocate Commissioner is available and hence, there is no difficulty for him to

examine the Advocate Commissioner or let in evidence to satisfy that the report is faulty and the same should be scrapped. This Court is of the

further view that after examination of the Advocate Commissioner and other witnesses, if the trial Court is satisfied that there is a ground for

remeasuring the property, the trial Court may either reissue the commissioner warrant or after scrapping of the commissioner report, appoint new

commissioner and call for fresh report.

This civil revision petition is disposed of with the above direction, however, with a cost of Rs.50,000/- payable by the revision petitioner / 4th

plaintiff to the Legal Services Authority, Madurai Bench of Madras High Court, Madurai, within a period of one week from the date of receipt of a

copy of this order. Consequently, connected miscellaneous petitions are closed.