S MUTHUVELU Vs. KUTTASAVU SETHURAYAR

JUDGEMENT

(1.) ORDER: The petitioners/ appellants in the second appeal have a filed this petition underO.26, Rule 9, C.P.C. to appoint an Advocate Commissioner to go and visit the suit properties forming subject matter of O.S.No.11 of 1986 on the file of the District Munsif Court, Thiruvaiyaru and take measurements of the properties purchased by them, with the help of the Head Surveyor, Thiruvaiyaru Taluk, with the assistance of Field Measurement Book and with police aid and take measurements of the RI Quarters (S.No.104/2B) and identify its boundaries on all the four sides and then start taking further measurements and file a report.

(2.) THE case in brief is as follows: THE first respondent filed a suit in O.S. No.295 of 1976 on the file of the District Munsif Court at Thiruvaiyaru against their vendors, claiming that there is a 20 feet wide street and prayed for permanent injunction. THE Court held that there is no 20 feet road and there is only 12 feet wide street south of the vendor's plot and dismissed the suit O.S.No.295 of 1976. THE appeal was also dismissed and as such it has become final. In O.S.No.295 of 1976, an Advocate Commissioner was appointed and he also filed a report. THE first respondent again filed O.S.No.11 of 1986 on the file of the District Munsif Court, Thiruvaiyaru against the petitioners and others for the similar relief and it was negatived by the trial Court. THE first respondent preferred an appeal in A.S.No.71 of 1988 before the Sub Court, Thanjavur. THE appeal was allowed and the judgment and Decree of the trial Court were set aside. Aggrieved against, the petitioners have come forward with the second appeal.

(3.) IT is not in dispute that the respondents filed O.S.No.11 of 1986 for declaration and injunction of the 12 feet road. IT is also admitted that in the trial Court, an Advocate Commissioner was appointed to measure the property and after inspection, a report was filed. Similarly, in the lower appellate Court, an Advocate Commissioner was appointed and he had measured the property with the help of the District Surveyor and a report was filed. The trial Court dismissed the suit filed by the first respondent, whereas, the lower Appellate Court allowed the appeal setting aside the Judgment and Decree of the trial Court. Aggrieved against the same, the petitioners have come forward with the present second appeal.