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V. Radhakrishnan Vs. Harikrishnan and Others - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberC.R.P (PD) No. 39 of 2011 & M.P. No. 1 of 2011
Judge
AppellantV. Radhakrishnan
RespondentHarikrishnan and Others
Excerpt:
.....well, service connection, channels etc., and to note down the other physical features of the suit property and also to file a report along with the plan. 6. this petition was contested strenuously by the revision petitioner/fourth defendant by filing his objection. after hearing both sides, the learned first appellate judge, had proceeded to allow the petition and one ms. p.malini, advocate was appointed as the advocate commissioner. questioning the correctness of the order of the first appellate judge, the revision petitioner, who is the contesting 4th defendant, stands before this court with this revision. 7. heard mr.n.suresh, learned counsel appearing for the revision petitioner and mr.s.krishnasamy, learned counsel appearing for respondents 1 to 3. respondents 4 to 7 are given.....
Judgment:

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 20.10.2011 and made in I.A.No.188 of 2011 in A.S.No.87 of 2009 dated 20.10.2011 on the file of the learned Principal District Judge, Villupuram.)

1. Challenge, in this revision is made to the order dated 20.10.2011 and made in the application in I.A.No.188 of 2011 in appeal in A.S.No.87 of 2009 on the file of the learned Principal District Judge, Villupuram.

2. The revision petitioner herein is the fourth defendant in the suit, whereas respondents 1 to 3 are the plaintiffs and the remaining respondents viz., R4 to R7 are the defendants 1 to 3 and 5 in the suit.

3. As it is revealed from the records, the respondents 1 to 3 herein had filed the above suit in O.S.No.516 of 2004 on the file of the learned District Munsif, Villupuram as against the revision petitioner as well as the respondents 4 to 7 seeking the relief of partition in respect of 1/3rd share in the first item and half share in the second item. The suit was contested by the fourth defendant (revision petitioner) and the fifth defendant, while the defendants 1 to 3 remained ex parte.

4. After formulating necessary issues, the parties to the suit were directed to face the trial and accordingly, the oral evidences of the first plaintiff as well as the contesting defendants 4 and 5 were recorded. 9 documents were exhibited on behalf of the respondents 1 to 3/plaintiffs and the contesting defendants had also produced 9 documents on their side. On appreciation of evidence, both oral and documentary, the learned trial Judge viz., the Additional District Munsif, Villupuram had proceeded to dismiss the suit on 31.03.2008. Having been aggrieved by the judgment of dismissal, the respondents 1 to 3 herein had filed an appeal in A.S.No.87 of 2009 before the Principal District Judge, Villupuram.

5. During the pendency of the appeal, the respondents 1 to 3 had taken out an application in I.A.No.188 of 2011 under Order 26 Rule 9 of the Code of Civil Procedure for appointing an Advocate Commissioner to inspect the suit properties, to find out the lie, location, existence of the mound of earth in the 1st item of property, well, service connection, channels etc., and to note down the other physical features of the suit property and also to file a report along with the plan.

6. This petition was contested strenuously by the revision petitioner/fourth defendant by filing his objection. After hearing both sides, the learned first appellate Judge, had proceeded to allow the petition and one Ms. P.Malini, Advocate was appointed as the Advocate Commissioner. Questioning the correctness of the order of the first appellate Judge, the revision petitioner, who is the contesting 4th defendant, stands before this Court with this revision.

7. Heard Mr.N.Suresh, learned counsel appearing for the revision petitioner and Mr.S.Krishnasamy, learned counsel appearing for respondents 1 to 3. Respondents 4 to 7 are given up.

8. As contemplated under the provisions of Rule 9 of Order XXVI, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute. As observed by this Court in Chandrasekaran V. Doss Naidu reported in (2005) 3 MLJ 473, power is conferred on the Court to appoint Commissioner to make local inspection not to collect evidence; but only to obtain evidence, which is a peculiar nature, which could be obtained only on spot inspection.

9. In an another decision in Rangasamy v. The Superintending Engineer, TNEB, Mettur Electricity System, Mettur Dam, Salem District and others reported in 2006 (5) CTC 501, this Court has held that the object of local investigation is not to collect evidence and such investigation is done to clarify or explain any point which is doubtful on the evidence on record.

10. On coming to the instant case on hand, it is palpable from the averments of the plaint that the respondents 1 to 3 have claimed 1/3 share in the first item of suit property and half share in the second item. As it is seen from Paragaph III. 1) of the plaint the property described as Item No.1 in the description of properties is a mound of earth (fpzw;W nkL). The earth excavated from the well dug therein about 70 to 80 years back was dumped there. According to the plaintiffs it is lying till today as the same could not be cultivated by the sharers of the landed properties and therefore it was left as such and even now it is lying like a mountain of earth. In the averments of the affidavit filed in support of the petition in I.A.No.188 of 2011, the respondents 1 to 3 have stated that there is also a well in the said property which is belonged to three sharers. A service connection was also obtained in the name of one of the sharers viz., Subbarayan in S.C.No.34 which was enjoyed in common. They have also stated that they had sold out their share in the landed property, well and motor (alone) in favour of one Nagarathinam Ammal by means of a registered sale deed. However, according to them, they had not sold out the first item as well as the service connection bearing No.34. Since the suit was dismissed in toto by the trial Court, they have stated that they were advised to seek for the appointment of an Advocate Commissioner to find out the lie, location and existence of the mound of earth in the first item of property, well, service connection, channels etc., and to note down other physical features of the suit properties.

11. The revision petitioner in his objection filed in the above petition had admitted that while the well was deepened, the sand excavated from the well was dumped by the side of the well. He has also stated in his objection that the crucial question to be decided in the appeal was that whether the sale made by the respondents 1 to 3 herein in favour of Nagarathinam Ammal was inclusive of the mound of earth and muds excavated from the well.

12. The learned trial Judge, without considering this important question involved in this case, had proceeded to appoint an Advocate Commissioner, which according to Mr.N.Suresh, is unsustainable and illogical. As observed by this Court in the opening paragraphs, for collecting evidence in favour of the respondents/plaintiffs, an Advocate Commissioner need not be appointed, because the excavation of sand and its dumping has been admitted by the revision petitioner/fourth defendant. As stated by him in his counter statement, the only question is that whether the sale made by the revision petitioners 1 to 3 in favour of Nagarathinammal is inclusive of mound of earth or not. To determine this issue, the oral as well as the documentary evidences viz., the sale deed made in favour of Nagarathinammal would be sufficient and for which an Advocate commissioner need not be appointed.

13. Keeping in view of the above fact, this Court finds that the impugned order of the learned Principal District Judge, Villupuram dated 20.10.2011 is erroneous and therefore liable to be set aside.

In the result, the civil revision petition is allowed and the application in I.A.No.188 of 2011 is dismissed. The Principal District Judge, Villupuram is directed to dispose the appeal in A.S.No.87 of 2009 within a shortest span of one month from the date of receipt of a copy of this order. However, there shall be no order as to costs.


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