GANESA NAICKER Vs. SUBBIAH THEVAR

JUDGEMENT

(1.) The Plaintiff in O.S. No. 54 of 1998 on the file of the District Munsif, Srivilliputhur is the revision petitioner. The petitioner has filed a suit for declaration that the 3rd Schedule property absolutely belonged to him and also for a consequential relief of permanent injunction restraining the respondents herein and others from in any way obstructing the construction of compound wall put up by the Petitioner in the 3rd schedule property. The Petitioner has also filed I.A. No. 78 of 2002 for appointment of advocate commissioner to inspect the suit property, note down the physical features and to take measurements with the assistance of Taluk surveyor, which was dismissed by the trial court. Aggrieved by the said order passed by the court below, the present revision has been preferred.

(2.) Mr. Thirunavukkarasu, learned counsel appearing for the petitioner submitted that the petitioner has purchased the first schedule property under a registered sale deed dated 09-11-1972; that ever since the date of purchase, the petitioner is in possession and enjoyment of the property; that the third schedule property is part of the same; that the respondents restrained the petitioner from putting up compound wall in the 3rd schedule property, which forms part of 1st schedule property; that the alleged measurement taken with the help of surveyor on 20-11-1997 and laying boundary stones were not with his consent; that the Court below erred in dismissing the petition on the ground that Surveyor has already taken measurement and laid boundary stones with the consent of the petitioner; that the trial court wrongly stated that the suit is one for permanent injunction as such no advocate Commissioner is required; that the trial court ought to have appointed an advocate commissioner which would reduce the evidence of the parties and also help the Court to give an effective adjudication and prayed for setting aside the impugned order passed by the trial Court.

(3.) Mr. Nedunchezhian, learned Counsel appearing for the respondents submitted that the petitioner has no right in the 3rd schedule property namely pathway; that with the help of Surveyor, the plaintiff's property was measured on 20-11-1997 and Survey stones were also laid with his consent, while so the illegal attempt of the petitioner to put a compound wall on the pathway was objected to by the respondents; that the case has come up for hearing on 08-03-1999 for trial and it was dismissed for default; that on 10-08-2001, for the second time, the suit was dismissed for default; that the application for appointment of an advocate commissioner was filed two years after the institution of the suit; that the trial court after careful consideration of the case has rightly passed the impugned order dismissing the application and prayed for dismissal of the revision.