Brothers’ Land Dispute: Madras HC Upholds Commissioner’s Inspection for Alleged Encroachment and Amendment Noting Sale During Suit

The petitioner and respondent are brothers.

The petitioner had filed a suit challenging a sale deed executed by the respondent, claiming the property was joint-family property; that suit was later renumbered as O.S. No. 93 of 2024.

The respondent separately filed O.S. No. 34 of 2023 for declaration of title and mandatory injunction, alleging that the petitioner had encroached on part of the property.

In that suit, the Trial Court allowed the respondent’s application to appoint an Advocate Commissioner to inspect and measure the property, and an application to amend the pleadings to record the petitioner’s sale of the property during the suit.

The petitioner challenged both orders under Article 227 of the Constitution.

The judgment does not cite a specific statutory provision governing the appointment of a Commissioner or amendment of pleadings, nor does it rely on precedent.

It applies the principles that a Commissioner’s inspection and measurements may assist the court with physical features or alleged encroachment, but do not determine title, which must be decided at trial on the evidence.

It applies the principles that an amendment recording a fact which the opposing party himself asserts does not warrant interference where it causes no prejudice.

The Court also held that an order’s brevity, by itself, is not a sufficient ground to set it aside.

The Court treated the competing ownership claims as matters for adjudication at trial, not as a bar to a Commissioner’s inspection.

Since the Commissioner was appointed to measure the property and record its physical features, the report could be considered as part of the record without deciding title or prejudicing the petitioner.

As the petitioner himself asserted that he had sold the property during the suit, the amendment recording that sale would avoid confusion and caused no prejudice; the Trial Court’s failure to give detailed reasons did not, on its own, justify setting aside the order.

It upheld the appointment of the Advocate Commissioner and the amendment recording the petitioner’s sale of the property.

No costs were ordered, and the connected miscellaneous petitions were closed.