CRP(MD)/255/2026 of Kumarasamy Vs Rajavel on 1 September 2026

O R D E R

This Civil Revision Petition has been filed challenging the order, dated 18/11/2025, passed in I.A.No.2 of 2024 in O.S.No.125 of 2024 by the learned Principal District Munsif, Virudhunagar.

2. The petitioners are the defendants 1 and 2 in the suit filed before the trial Court. The suit has been filed by the 1st respondent/plaintiff seeking a declaration and mandatory injunction to evict the petitioners from the alleged encroached portion of the property described in the second schedule.

3. The learned counsel for the petitioners contended that the 1st respondent/plaintiff claims that the property described in the first schedule belongs to the plaintiff and that the property described in the second schedule is the portion allegedly encroached upon by the petitioners. According to the 1st respondent/plaintiff, the ABCD portion of the property mentioned in the first schedule belongs to the plaintiff and the CDEF portion is alleged to have been encroached upon by the petitioners, which portion has been shown as the second schedule property. During the pendency of the suit, the plaintiff filed an application seeking appointment of an Advocate Commissioner to inspect the first and second schedule properties with the assistance of a Government Surveyor, measure the properties and ascertain the alleged encroachment made by the petitioners. The petitioners contended that the said application had been filed only for the purpose of collecting evidence, particularly when the parties had already filed documents to substantiate their respective claims.

4. In support of his contention, the learned counsel for the petitioners relied upon the judgment of this Court in Selvamariammal v. Kanagavel, in C.R.P.(MD) No.1701 of 2017, dated 13.11.2018. In the said judgment, this Court, while considering an application seeking appointment of an Advocate Commissioner in a case where encroachment was alleged, observed that it was the duty of the plaintiff to prove the alleged encroachment by adducing oral and documentary evidence and that an Advocate Commissioner cannot be appointed for the purpose of collecting evidence. This Court further referred to the decision in K.M.A.Wahab and 5 others v. Eswaran and another, wherein it was observed that, insofar as the factum of possession is concerned, the Court has to gather evidence through the parties and cannot entrust such matter to an Advocate Commissioner for collecting evidence.

5. Per contra, the learned counsel for the 1st respondent/plaintiff submitted that the application was not filed for the purpose of collecting evidence, but only to assist the Court in ascertaining whether any encroachment had been made by the petitioners in the suit schedule property.

6. The learned counsel further submitted that the trial is yet to commence and, therefore, the trial Court had rightly allowed the application for appointment of an Advocate Commissioner to ascertain whether the petitioners had constructed the building beyond the extent of their property. The petitioners, in their counter, have stated that they had constructed the building only within their property and that no portion of the property belonging to the plaintiff had been encroached upon. The trial Court, after considering the rival submissions, allowed the application for appointment of an Advocate Commissioner to ascertain whether any encroachment had been made by the petitioners, with the assistance of the Government Surveyor and the Village Administrative Officer, and directed the Commissioner to file a report before the trial Court and prays for dismissal of the civil revision petition.

7. Heard the learned counsel appearing on either side and perused the materials available on record.

8. The purpose of appointing an Advocate Commissioner is not to collect evidence on behalf of either party, but to ascertain the physical features and the existing factual position on the ground and thereby assist the Court in arriving at a proper conclusion on the issues involved in the suit. In the present case, the appointment of the Advocate Commissioner is confined to ascertaining the actual physical features of the suit properties, measuring the properties with the assistance of the Government Surveyor and finding out whether the petitioners have encroached upon any portion of the plaintiff's property. In the present case, the Advocate Commissioner has been appointed only to ascertain the physical features, measure the properties with the assistance of the Government Surveyor and determine the factual position as to the alleged encroachment.

9. In the present case, the main issue revolves around the allegation of encroachment by the petitioners. Since the identity, measurement and physical features of the properties are relevant for determining the alleged encroachment, the appointment of an Advocate Commissioner, with the assistance of the Government Surveyor and the Village Administrative Officer, would assist the trial Court in ascertaining the actual factual position on the ground. Such appointment cannot, in the facts and circumstances of the present case, be construed as an exercise undertaken for collecting evidence on behalf of the plaintiff. Therefore, this Court does not find any illegality or infirmity in the order passed by the trial Court.

10. In view of the above, this Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.

01.09.2026 Index : Yes / No Internet : Yes / No er

R.POORNIMA, J. er To,

1. The Principal District Munsif Court, Virudhunagar.

2. The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.

CRP(MD)No.255 of 2026 01/09/2026