CRP(MD)/1838/2023 of Muthusamy (Died), Karuppayam Vs The Tahsildar on 22 September 2026

ORDER

This Civil Revision Petition has been filed by the plaintiffs challenging the order passed by the learned Trial Court dismissing the petition filed by them seeking appointment of an Advocate Commissioner to inspect and measure the suit property with the assistance of a qualified Surveyor and to note down the physical features.

2. The petitioners/plaintiffs have filed the suit seeking a declaration that the second schedule property forms part of the first schedule property and for a consequential permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. They also sought a consequential direction restraining the defendants from transferring the said property in the revenue records in their names.

3. The learned counsel appearing for the petitioners states that the petitioners are the owner of an extent of 22 cents of land purchased under two separate sale deeds and have been in possession and enjoyment of the same. They earmarked the western portion of the property as a common pathway for access and for maintaining the compound wall. On the eastern side, they had constructed a building and have been residing therein.

4. It is the contention of the petitioners that the portion earmarked for the pathway has been described as the second schedule property. It is the further contended that the second defendant purchased the adjacent property and commenced construction of a building. When the second defendant claimed that the second schedule property was a common pathway, the petitioners made an enquiry and came to know that the said portion had been improperly subdivided and classified as a common pathway in the revenue records. Hence, the petitioners were constrained to file the suit seeking the aforesaid reliefs. During the pendency of the suit, the petitioners filed the impugned application seeking appointment of an Advocate Commissioner to inspect and measure the suit property with the assistance of a Surveyor and to note down the physical features thereof. The said application was dismissed by the learned Trial Court on the ground that the petitioners were attempting to collect evidence through the appointment of an Advocate Commissioner. Aggrieved by the same, the present Civil Revision Petition has been filed.

5. The learned counsel appearing for the petitioners submitted that the order passed by the learned Trial Court is perverse and contrary to law. According to him, the appointment of an Advocate Commissioner is necessary for identifying the suit property, measuring the same with reference to the boundaries and noting down its physical features. It is further submitted that such inspection would assist the petitioners in establishing their case regarding the identity, possession and enjoyment of the property. It is also submitted that no prejudice would be caused to the respondents by appointing an Advocate Commissioner and therefore, the learned counsel for the petitioners prays that the order of the learned Trial Court is liable to be set aside and this civil revision petitio is to be allowed.

6. Per contra, the learned counsel appearing for respondents 3 to 5, as well as the learned Special Government Pleading appearing for respondents 1 and 2 submitted that the revenue authorities have already filed their counter and have clearly stated that the suit property is not the exclusive property of the petitioners. According to them, the property in question has been classified as “Poramboke”/common pathway in the revenue records. It is further submitted that originally, the property was inadvertently entered in the revenue records otherwise, but, considering the long-standing use of the property by persons who had constructed buildings in the locality, the revenue authorities classified the same as common pathway. According to the respondents, the said classification was made as early as in the year 1992 and was accepted by the petitioners. It is also submitted that the classification was duly published in the Gazette and necessary publication was made in the Village Chavadi, besides issuing notice to the individual owners and considering their objections before effecting the subdivision and classification.

7. The learned counsel for the respondents further submitted that the petitioners cannot be permitted to use the appointment of an Advocate Commissioner as a means of collecting evidence. According to the respondents, the petitioners claim only three cents of land on the strength of their title documents, whereas the revenue records disclose that the said property has already been classified as common pathway. If the petitioners are aggrieved by the action of the revenue authorities, they have to work out their remedy before the competent authority in accordance with law. Therefore, the physical features of the property need not be ascertained through a Commissioner at this stage. It is also submitted that the question as to whether the petitioners have title over the disputed portion has to be decided by the Trial Court on the basis of the pleadings and the documentary and oral evidence to be adduced by the parties. The appointment of an Advocate Commissioner, in the facts and circumstances of the present case, would not assist the Court in deciding the issue of title. In view of the above circumstances, the learned Trial Court was justified in dismissing the application and requires no interference by this court and prays for the dismissal of the civil revision petition.

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

9. The petitioners seek appointment of an Advocate Commissioner mainly for measuring the property, identifying the boundaries and noting down the physical features. It is well settled that an Advocate Commissioner can be appointed where local investigation is necessary for elucidating any matter in dispute or for assisting the Court in effectively adjudicating the issues involved in the suit. However, such power cannot be invoked for the purpose of collecting evidence on behalf of a party.

10. In the present case, the main dispute between the parties relates to the identity and title over the second schedule property and the claim of the petitioners that the said property forms part of the first schedule property. The respondents, on the other hand, dispute the petitioners claim and rely upon the revenue records, under which the disputed portion is stated to have been classified as a common pathway.

11. The question as to whether the disputed portion forms part of the property covered under the petitioners title deeds and whether the petitioners had title and possession over the same are matters which have to be established by the parties by adducing appropriate evidence. The mere noting of the physical features of the property or measurement of the property by an Advocate Commissioner cannot, by itself, establish the petitioner's title.

12. Further, the petitioners have not demonstrated any special circumstance warranting the appointment of an Advocate Commissioner at this stage. This court is of the considered view that the relief sought in the application, in the facts and circumstances of the case, would substantially amount to collecting evidence in support of the petitioner's case. Therefore, the learned Trial Court was justified in declining to appoint an Advocate Commissioner.

13. In such circumstances, this Court finds no perversity or illegality in the order passed by the learned Trial Court. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition, if any, is closed. 22.09.2026 NCC : Yes / No Index : Yes / No Ns

To

1. The District Munsif, Kovilpatti

2. The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai. R.POORNIMA

, J. Ns

CRP(MD) NO. 1838 of 2023 and C.M.P(MD)No.9192 of 2023 22.09.2026