M.Shenbagakani vs M.Mahalingam

Court
Madras High Court

CRP(MD) No. 2245 of 2026
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03-11-2026
CORAM
THE HON'BLE MS.JUSTICE R. POORNIMA
CRP(MD) No. 2245 of 2026
CNR:{HCMD011106552026}
AND
CRP(MD) NO. 2246 OF 2026, CMP(MD) NO. 10776 OF 2026,
CMP(MD) NO. 10779 OF 2026
M.Shenbagakani
..Petitioner in both petitions
Vs
M.Mahalingam
..Respondent in both petitions
CRP(MD) No. 2245 of 2026
PRAYER: J-36. Civil Revision Petition filed under Article 227 of The
Constitution of India to set aside the order passed in I.A.No.4 of 2023 in
O.S.No.34 of 2023, on the file of the Subordiante Court, Nanguneri dated
02.07.2026 by allowing the CRP in favour of the Petitioner.
CRP(MD) No. 2246 of 2026
PRAYER: J-36. Civil Revision Petition filed under Article 227 of The
Constitution of India to set aside the order passed in I.A.No.10 of 2025 in
O.S.No.34 of 2023, on the file of the Subordinate Court, Nanguneri dated
02.07.2026 by allowing the CRP in favour of the Petitioner.
In both petitions
For Petitioner(s) : Mr.S.Bhuvaneswaran
For Respondent(s) :M/s. Micheal Heldon Kumar
__________
Page  1  of  8
https://www.mhc.tn.gov.in/judis
( Uploaded on: 11/11/2026 05:45:36 pm )

CRP(MD) No. 2245 of 2026
Order
These Civil Revision Petitions have been filed challenging
the order dated 02.07.2026 passed in I.A.Nos.4 of 2023 and 10 of 2025 in
O.S.No.34 of 2023 on the file of the Subordinate Court, Nanguneri.
2. The petitioner is the brother of the respondent. He filed a
suit in O.S.No.152 of 2022 before the District Munsif Court, Nanguneri,
seeking cancellation of the sale deed executed by the respondent in
favour of a third party. The petitioner claims that the suit property is a
joint family property and that it was purchased in the name of the
respondent by their parents. The petitioner had also filed an application
seeking an order of temporary injunction restraining the respondent from
alienating the suit property, and an order of status quo was also granted.
In the meantime, the petitioner himself sold the property in favour of a
third party. Subsequently, the said suit was renumbered as O.S.No.93 of
2024 and is now pending before the Subordinate Court, Nanguneri.
3. In the meantime, the respondent filed O.S.No.34 of 2023
seeking a declaration of title and a mandatory injunction. In the said suit,
the petitioner is alleged to have encroached upon the property claimed to
have been sold by the respondent. Therefore, the respondent filed an
__________
Page  2  of  8
https://www.mhc.tn.gov.in/judis
( Uploaded on: 11/11/2026 05:45:36 pm )

CRP(MD) No. 2245 of 2026
application seeking the appointment of an Advocate Commissioner to
inspect the property and ascertain whether the petitioner had committed
any encroachment. The said application was allowed by the Trial Court.
4. The learned counsel appearing for the petitioner submits
that the order passed by the Trial Court is improper, particularly when a
dispute with regard to the title to the property is already pending
adjudication in O.S.No.93 of 2024.
5. It is further submitted that, without deciding the said
dispute, the respondent cannot seek the appointment of an Advocate
Commissioner to ascertain the alleged encroachment. It is also submitted
that the petitioner is no longer the owner of the property, as he has
already alienated the same in favour of a third party. In view of the above
submissions, the learned counsel appearing for the petitioner prays for
setting aside the impugned order passed by the Trial Court by allowing
these Civil Revision Petitions.
6. Per contra, the respondent contends that he purchased an
extent of 33 cents in Survey No.527/1A1A1 in the year 1996 and it is
contended that the petitioner encroached upon an extent of four cents in
__________
Page  3  of  8
https://www.mhc.tn.gov.in/judis
( Uploaded on: 11/11/2026 05:45:36 pm )

CRP(MD) No. 2245 of 2026
the western side of the property. The petitioner also admits that he had
purchased the property situated on the western side. Therefore, in order to
ascertain whether any encroachment had been made by the petitioner, the
respondent filed a petition seeking the appointment of an Advocate
Commissioner to measure the suit schedule property and note down its
physical features.
7. The learned counsel for the respondent further submits
that there is already a dispute regarding the patta, which was allegedly
issued erroneously, and that steps have been taken to rectify the same.
8. The petitioner contends that he had already purchased the
property under a sale deed. Whether any encroachment has been
committed by the petitioner or not can be decided only at the time of trial.
It is further submitted that the Trial Court has already ordered a joint trial
of the suits.
9. Therefore, the respondent submits that no prejudice would
be caused to the petitioner merely because an Advocate Commissioner is
appointed to inspect and measure the property.
__________
Page  4  of  8
https://www.mhc.tn.gov.in/judis
( Uploaded on: 11/11/2026 05:45:36 pm )

CRP(MD) No. 2245 of 2026
10. The petitioner further contends that he had raised several
objections in his counter-affidavit, none of which was taken into
consideration by the Trial Court. According to the petitioner, the
property does not belong to the respondent and was purchased by their
father in the respondent's name. Therefore, the respondent has no
independent right to claim title over the property. On this ground, the
petitioner had filed O.S.No.152 of 2022 before the District Munsif Court,
Nanguneri, seeking cancellation of the sale deed executed by the
respondent in favour of a third party. The said suit was subsequently
transferred and renumbered as O.S.No.93 of 2024 on the file of the
Subordinate Court, Nanguneri.
11. On a perusal of the counter-affidavit, which runs to
approximately 16 pages, it is seen that the petitioner has narrated the
entire history of the purchase of the property and raised various
contentions with regard to the averments made in the plaint.
12. The limited question that arises for consideration is
whether the appointment of an Advocate Commissioner is required only
for the purpose of measuring the property and ascertaining whether any
encroachment has been made. The main issue involved in the suit is
__________
Page  5  of  8
https://www.mhc.tn.gov.in/judis
( Uploaded on: 11/11/2026 05:45:36 pm )

CRP(MD) No. 2245 of 2026
whether the property belongs to the plaintiff or the defendant. The said
issue has to be decided by the Trial Court after hearing both parties and
appreciating the evidence on record. The same cannot be decided at the
stage of appointing an Advocate Commissioner.
13. Therefore, no prejudice would be caused to the petitioner
by appointing an Advocate Commissioner to inspect and measure the
property. The Trial Court can take the Commissioner's report into
consideration as part of the record while deciding the suit.
14. The other Civil Revision Petition, namely, C.R.P.
(MD)No.2246 of 2026, has been filed challenging the order allowing the
amendment of the pleadings to incorporate the fact that, during the
pendency of the suit, the petitioner had sold the property in favour of one
Jebas Jeba Kumar.
15. In the present case, even the petitioner's contention is that
he had sold the property during the pendency of the suit. Therefore, in
order to avoid any unnecessary confusion, the respondent sought to
amend the pleadings by incorporating the said fact. Whether the
petitioner had any right to alienate the property is a matter that has to be
__________
Page  6  of  8
https://www.mhc.tn.gov.in/judis
( Uploaded on: 11/11/2026 05:45:36 pm )

CRP(MD) No. 2245 of 2026
decided only at the stage of final adjudication. No prejudice would be
caused to the petitioner by allowing such an amendment, particularly
when the petitioner himself has contended that the respondent had
suppressed the material facts.
16. Therefore, the Trial Court was justified in allowing the
amendment application. Though it is true that the Trial Court has not
passed a detailed order, merely because the order is cryptic, it cannot, by
itself, be a ground for setting aside the same.
17. Accordingly, both the Civil Revision Petitions are
dismissed. No costs. Consequently connected miscellaneous petitions are
closed.
03-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
RM
To
1. The Subordiante Court, Nanguneri.
2. The Section Officer
VR Section
Madurai Bench of Madras High Court
Madurai
__________
Page  7  of  8
https://www.mhc.tn.gov.in/judis
( Uploaded on: 11/11/2026 05:45:36 pm )

CRP(MD) No. 2245 of 2026
R.POORNIMA J.
RM
CRP(MD) Nos. 2245 & 2246 of 2026
AND
CMP(MD) Nos. 10776 & 10779 OF 2026
03-11-2026
__________
Page  8  of  8
https://www.mhc.tn.gov.in/judis
( Uploaded on: 11/11/2026 05:45:36 pm )