K. DOSS Vs. PUSPA RANI

JUDGEMENT

(1.) This Civil Revision Petition is filed to set aside the fair and decreetal order dtd. 30/8/2012 made in I.A.No.318 of 2011 in O.S.No.18 of 2007, on the file of the District Munsif-Cum-Judicial Magistrate, Thirukalukundram.

(2.) The petitioner is 1st defendant in O.S.No.18 of 2007, on the file of the District Munsif-Cum-Judicial Magistrate, Thirukalukundram. The 1st respondent filed the said suit for declaration and permanent injunction against the petitioner and the 2nd respondent. The petitioner and 2nd respondent filed separate written statements and are contesting the suit. The petitioner filed I.A.No.310 of 2009, for appointment of an Advocate Commissioner to measure the suit property with the help of Surveyor and to fix the boundary stone and to file a report along with the plan. The 1st respondent filed counter affidavit and sought for a direction to measure the entire Survey No.183, as per FMB. The learned Judge, by the order dtd. 30/8/2010, allowed the said I.A. filed by the petitioner and directed the Advocate Commissioner to measure the suit property. The Advocate Commissioner inspected and measured the suit property and filed a report on 7/9/2011. The 1st respondent filed I.A.No.318 of 2011 under Order XXVI Rule 9 and 10 and Sec. 151 of C.P.C to scrap the Commissioner's report dtd. 7/9/2011 and for a direction to re-issue the warrant of commission to the same Commissioner to comply with the direction of the Court in I.A.No.310 of 2009, by measuring the entire Survey No.183. According to the petitioner, by the order dtd. 30/8/2010, the Court allowed the I.A., directing the Advocate Commissioner to measure the suit Survey No.183, as per FMB and to measure the suit property based on the 1st respondent's sale deed dtd. 30/6/1960. As per the order, the Advocate Commissioner visited the suit property on 9/7/2011 and measured only the Survey No.183/4 and filed report, stating that the suit property is measuring only 17 cents as per FMB. The counsel for the 1st respondent filed objection to the report of the Advocate Commissioner. The 1st respondent contended that the Advocate Commissioner failed to comply with the directions of the Court while executing the warrant of commission and report of the Advocate Commissioner is not helpful to the Court to decide the issue involved in the suit. Unless entire Survey No.183 and petitioner's property are measured, the question involved in the suit cannot be decided and report of the Advocate Commissioner is irrelevant and will not bring the real facts of the case and prayed to scrap the earlier report and for re-issue of warrant of commission. The petitioner filed counter affidavit and submitted that the Advocate Commissioner measured the property as per the warrant of commission issued by the Court on 30/8/2010. The 1st respondent has not filed any objection to the report of the Advocate Commissioner. The allegation that the Advocate Commissioner did not comply with the direction issued in warrant of commission, is contrary to the direction issued by the Court and prayed for dismissal of I.A.No.318 of 2011. The learned Judge, by the order dtd. 30/8/2012, allowed I.A., on the ground that the 1st respondent insisted on measuring the entire Survey No.183 of suit property as per the sale deed dtd. 30/6/1960, in order to resolve the dispute in the suit.

(3.) Against the said order dtd. 30/8/2012 made in I.A.No.318 of 2011 in O.S.No.18 of 2007, the petitioner has come out with the present Civil Revision Petition.