CHINNAN Vs. MARAPPAN

JUDGEMENT

(1.) The above Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure praying to set aside the fair and decretal order dated 21.3.2003 made in I.A.No.145 of 2003 in O.S.No.96 of 2002 by the Court of District Munsif, Paramathi.

(2.) On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the petitioner herein has filed the suit in O.S.No.96 of 2002 before the Court below as against the respondent herein for declaration that he has right to take men, cattle, carts and other vehicles through the suit pathway to reach his property and consequential mandatory injunction to restore a portion of the pathway which was obliterated by the respondent/defendant and for permanent injunction. When the said suit was pending, the respondent/defendant filed a petition in I.A.No.145 of 2003 under Order 26 Rule 9 CPC praying to appoint an Advocate-Commissioner to note down the physical features of the suit property.

(3.) A Counter was filed before the Court below by the petitioner thereby submitting that the respondent had already filed a suit in O.S.No.33 of 2002 before the same Court as against the petitioner herein for permanent injunction; that in the said suit, the main issue between the parties is whether the petitioner is entitled to use X2, X3 portion (which is the subject matter in the present suit) of the pathway as cart track or not and in the said suit, the petitioner as the defendant therein filed an application in I.A.No.220 of 2002 to appoint an Advocate-Commissioner and the Commissioner also submitted his report and plan and based on the advocate-Commissioner's report and plan filed therein, the present suit was filed by the petitioner; that without disclosing the said fact of an Advocate-Commissioner having already been appointed and filed the report, the present petition filed by the respondent/defendant without asking for scraping of the earlier report is not sustainable.