{"id":77984,"date":"2010-11-24T00:00:00","date_gmt":"2010-11-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-gunabalan-vs-t-selvarajan-on-24-november-2010"},"modified":"2016-01-26T07:55:29","modified_gmt":"2016-01-26T02:25:29","slug":"t-gunabalan-vs-t-selvarajan-on-24-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-gunabalan-vs-t-selvarajan-on-24-november-2010","title":{"rendered":"T.Gunabalan vs T.Selvarajan on 24 November, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
T.Gunabalan vs T.Selvarajan on 24 November, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED:     24.11.2010\n\nCORAM:\n\nTHE HONOURABLE MR.JUSTICE  V.PERIYA KARUPPIAH\n\nCIVIL REVISION PETITION (NPD) No.1434  OF 2010\nand\nM.P.No.1 OF 2010\n\n\nT.Gunabalan\t\t\t\t\t ..  Petitioner\n\n\n-Vs-\n\nT.Selvarajan \t\t               \t\t  .. Respondent\n\n                \n\tCivil Revision Petition filed under Section 115 of Civil Procedure Code against the dismissal order dated 22.1.2010 passed in R.E.A.No.70\/2009 in R.E.P.No.404\/2007 in O.S.No.584\/2003 on the file of I Additional District Munsif, Salem.\n        \t\t For petitioner   :  Mr. N.S.Sivakumar\n\n\t\t \t For respondent   :  Mrs.Hema Sampath\n\t\t\t\t\t     Senior Counsel\n\t\t\t\t\t     for M\/s.R.Meenal\n\n\t\n\n\nORDER\n<\/pre>\n
\t This Revision has been filed by the petitioner against the dismissal order dated 22.1.2010 passed in R.E.A.No.70\/2009 in R.E.P.No.404\/2007 in O.S.No.584\/2003 by the I Additional District Munsif, Salem, an application to appoint the Advocate Commissioner, who was appointed earlier during the pendency of the suit, to note down the removed portion in the suit properties.\n<\/p>\n
\t  2.   Heard the submissions of Mr.N.S.Sivakumar, learned counsel for the petitioner and Mrs.Hema Sampath,  learned          Senior Counsel  for M\/s.R.Meenal, learned counsel for the respondent.\n\n\t   3.  The learned counsel for the petitioner would submit in his arguments that  the lower Court had not considered the request of the petitioner for appointment of the Advocate Commissioner to note down the obedience of the petitioner as Judgment Debtor to the Decree passed by the Court for removal of encroached construction and the refusal would not only prejudice the petitioner, but also to deprive    the Court to come to a correct conclusion.   He would further submit that the alleged encroachment made by the petitioner was directed to be removed by the Appellate Court in its Decree passed in A.S.No.10\/2006 regarding the 'B' schedule property, whereas the Commissioner had noted the actual measurement of the encroached portion with the help of the surveyor and had filed a report, which was not referred  in the Decree  by the Appellate Court for removal.   He would also submit in his arguments that the Appellate Court had omitted to say that the Report of the Commissioner and Plan shall form part of the Decree and therefore the whole confusion happened.   He would further submit that in obedience to the direction of the  Appellate Court, the petitioner had directly removed the encroached portion of the suit properties as per the Plan of the Commissioner and therefore there was no need for removal of the encroachment through the  Court 's  Amin.   He would also submit that the alleged return made by the Court 's  Amin that the petitioner had obstructed for the removal of the encroachment described as 'B' schedule property, cannot be true since the actual encroached portion had been  already removed by the petitioner himself.   He had also produced several photographs showing the present condition of the suit property and  his property, after removal of the said encroachment.   He would further submit that the petitioner should not be prejudiced for the mistake committed in the drafting of the Decree and therefore the Commissioner, who had already found the encroachment, should  have been once again directed by the lower Court to  find out the removal of the  encroached portion in accordance with the report.    He would also submit that if the lower Court had ordered the appointment of Commissioner, he would correctly show the removed portion and     the reclaimed suit property to its original measurements and the petitioner would not be prejudiced by removing his property as the suit  property (i.e.) the  common pathway measuring 31 feet      North South on the eastern side.    He would further submit that       if the 'B' schedule property had been removed by the Court's Amin, the property belongs to the petitioner will be taken away from him and  the  resultant width of the  common pathway would  be more  than  the  actual measurement and the breath would be further extended  to 33 feet, which is  not  the actual lie of the suit property and   therefore he would request this Court to interfere with the order passed by the lower Court and to set aside the same and to allow the application filed by him before the lower Court.\n\t  \n\t  4.  The learned Senior Counsel appearing for the respondent would submit in her arguments that the Appellate Court  found that the petitioner had encroached the common pathway as mentioned in 'B' schedule property and had reversed the judgment of the             trial Court and the petitioner did  not also prefer  any second appeal against the said judgment and  it had become final.   She would further submit that  the Appellate Court did not rely upon the report and sketch of the Commissioner for the purpose of measuring the encroached portion, but to the fact of encroachment made by the petitioner in the common pathway and therefore  it cannot be said   that the encroached portion as decreed by the lower Court towards           'B' schedule property  should have been the property shown in the sketch of the Commissioner.   She would further submit  that the Appellate Court had come to the correct conclusion and decreed the suit for removal of encroachment of property described  in                'B' schedule and therefore the petitioner cannot ask for               lesser extent of property in 'B' schedule, contrary  to  the  direction given  in the Decree.   She would also submit in her arguments that the petitioner had removed lesser extent of superstructures in          his property to suit  his convenience and the petitioner should have removed the actual encroached portion as stated in 'B' schedule property.   She would further submit that the Court's Amin had rightly reported to the Court about the non-co-operation of the petitioner in removing the encroached portion.   She would also bring it to the notice of this Court that in an earlier occasion the petitioner had questioned the direction of the lower Court, passed in R.E.P.No.404 of 2007 directing the petitioner to remove the encroachment as per the Decree in C.R.P.NPD.No.3113\/2009 and this Court had confirmed the order passed by the lower Court directing to remove the encroachment as per the Decree and therefore the petitioner has no say in this revision also  and  therefore  there  is no necessity for appointment  of Commissioner to find out the encroached portion.   She would further submit in her arguments that the petitioner with a view to prolong the execution of the Decree, has come forward with the revision and there is no truth in it and therefore she requests this Court to dismiss the revision with costs.\n\n\t5. I have given my anxious consideration to the arguments advanced on either side.\n\n\t6. The undisputed facts  are  that  the suit was originally filed by the respondent for mandatory injunction against the petitioner directing him to remove the 'B' schedule property, which was an encroached portion in common pathway, shown as 'A' schedule property.  The said suit was tried before the trial Court and the trial Court had dismissed the suit and against which, an appeal was filed by the respondent in A.S.No.10\/2006 on the file of  Additional Sub Court, Salem and the said appeal was allowed and the suit filed by the respondent before the lower Court was decreed as prayed for with costs.  During the pendency of the said suit, the trial Court had appointed a Commissioner and he inspected the suit properties and had filed a report with sketch.    The Appellate Court had discussed the case and found that the encroachment was made in the Commissioner's report and sketch and had passed a decree directing the petitioner\/defendant to remove the encroachment as per  schedule 'B' of the suit properties.  The Execution Petition was filed by the respondent and the  E.P. Court had also passed an order in R.E.P.No.404\/2007 on 3.7.2009 to remove the encroachment as detailed in 'B' schedule property, against which a revision was preferred by the petitioner in C.R.P.NPD.No.3113 of 2009 and this Court had dismissed the said revision, after hearing both the parties, on 27.10.2009.   According to the said Judgment of this Court, the order in  R.E.P.No.404\/2007  was affirmed.\n\n<\/pre>\n
\t7.  Now  the petitioner wants to get an appointment of the same Advocate Commissioner, who inspected the suit properties during the trial stage, for finding out the correct  encroached area.  No doubt, it could be true that the encroached area was shown  as per the report of the Commissioner as well, the description was  made in the  plaint ‘B’ schedule property.  However, a decision was reached by the Appellate Court in its judgment passed in A.S.No.10\/2006 dated 20.4.2006 that the petitioner encroached the ‘A’ schedule property.   Admittedly, no second appeal has been preferred by the petitioner and it became final.  Therefore, the Decree as drafted or  framed on the said judgment will hold  good  till it is challenged either in second appeal or in a review application, if any  filed by the petitioner.  Admittedly, there is no review application filed so far before the lower Court.\n<\/p>\n
\t   8.   The learned counsel for the petitioner would also submit in his arguments that when the property is not definitely identified,  resort can be had to  Section 152 or Section 147 CPC depending on the facts and circumstances of  each case, which of the two provisions would be more appropriate, just and convenient to invoke and accordingly the petitioner  may  be given an opportunity to identify  a correct extent   of  the  suit  property.    He  would  also  rely upon  a   judgment  of  the  Honourable  Supreme Court of  India  in PRATIBA  SINGH  AND  ANOTHER  Vs. SHANTI  DEVI  PRASAD  AND ANOTHER (2002 (5)  CTC 660) for  the  proposition of  law.   The relevant passage of the above decision runs  thus:\n<\/p>\n
    “17. When the suit as to immovable property has been decreed and the property is not  definitely identified, the defect in the Court  record caused by overlooking of provisions contained in Order 7,  Rule 3  and  Order 20,  Rule 3 of the CPC is  capable of  being  cured.   After all a successful  plaintiff should not be deprived of the fruits of  decree.  Resort  can be had to  Section 152 or  Section 47 of the CPC depending on the facts and circumstances of each case  which of the two provisions would be more appropriate, just and convenient to invoke.  Being an inadvertent error, not  affecting the merits of the case,  it  may be corrected under  Section 152 of the CPC by the Court  which passed the decree by supplying the omission. Alternatively, the exact  description of  decretal  property  may be ascertained  by the Executing  Court  as  a question  relating  to execution,  discharge or  satisfaction of  decree  within the meaning of  Section 47, CPC.   A  decree of a competent  Court  should  not, as far  as  practicable,  be  allowed  to  be  defeated   on account  of  an  accidental  slip or omission.   In  the  facts  and  circumstances of  the  present  case we think it would  be  more  appropriate  to  invoke  Section 47 of the  CPC.”\n<\/p>\n
\t9.   The case of the petitioner  is  that  the  Appellate  Court has not  correctly  described  the  suit property as per  the  Commissioner’s  report, inspite of  referring the encroached  property  as per the report  and  hence  an opportunity  should have been  given  to  describe the suit  property  either by the Court  which passed the  Decree  under  Section 152  CPC  or  before  the Execution Court  under  Section 47  CPC.   The said  right  is  always  available  to  the petitioner   and this Court need  not  give any separate permission for that.    In the said circumstances, in any application is  filed,  it is the duty of the  E.P.  Court,  to  dispose of the  same  before  a decision has been reached  in  the Execution Petition,  as  per  the  principles  laid  down  by  the  Honourable   Apex  Court.\n<\/p>\n
\t10.  In the said circumstances,  there cannot be any necessity for ascertaining the encroached portion once again through the appointment of  Commissioner  for executing the Decree passed by the Appellate Court.    Appointing of  Commissioner  will not in any way help the Court to divide the ‘B’ schedule property and it could have been ascertained by the Court’s Amin and the surveyor could  make note of the actual property as per  Decree and could remove the same.   Therefore, this Court does not feel that the order passed by the lower Court has to be interfered .  It has to be once again reiterated that the Execution Court cannot go beyond the Decree, but it has to go behind the Decree always.  Therefore, this Court cannot at this stage, help the petitioner by directing the lower Court to remove the structures only to the extent of the encroached portion, as mentioned in the Commissioner’s report and plan.\n<\/p>\n
\t11. At this stage, the learned counsel for the petitioner would request this Court that he may be permitted to approach the Appellate Court to get the Decree modified by filing appropriate proceedings for correcting the clauses of the Decree.   As already said, it is the right of the petitioner to approach the said Court in accordance with law and there is no need for any specific permission be granted to the petitioner for doing so.   In the said circumstances, the revision fails and therefore it is liable to be dismissed.\n<\/p>\n
\t11.  With the aforesaid direction, the Civil Revision Petition is dismissed.  There shall be no order as to costs.   Consequently, M.P.No.1 of 2010 is also dismissed.\n<\/p>\n
vks<\/p>\n
To<\/p>\n
The I Additional District Munsif,
\nSalem<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court T.Gunabalan vs T.Selvarajan on 24 November, 2010 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.11.2010 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CIVIL REVISION PETITION (NPD) No.1434 OF 2010 and M.P.No.1 OF 2010 T.Gunabalan .. Petitioner -Vs- T.Selvarajan .. Respondent Civil Revision Petition filed under Section 115 of Civil Procedure Code […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-77984","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nT.Gunabalan vs T.Selvarajan on 24 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/t-gunabalan-vs-t-selvarajan-on-24-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"T.Gunabalan vs T.Selvarajan on 24 November, 2010 - 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