KASTHURIRANGAN Vs. COMMISSIONER

JUDGEMENT

(1.) The present Civil Revision Petition is filed against an order made in I.A. No. 164 of 2009 in O.S. No. 108 of 2007 on the file of the District Munsif Court, Arcot, wherein and whereby the application filed by the petitioner seeking for re-issuance of Commission to inspect the suit property has been rejected. The petitioner herein filed a suit in O.S. No. 108 of 2007 on the file of the District Munsif Court, Arcot seeking for declaration of his right and title over the ABCD marked portion of the suit property, permanent injunction and also for mandatory injunction directing the respondent/defendant to remove the pipe lines laid in the ABCD marked portion of the suit plan. Pending disposal of the suit, the petitioner filed an application in I.A. No. 128 of 2009 for appointment of an Advocate Commissioner. The said application was allowed by the Court below and an Advocate Commissioner was appointed, who also inspected the suit property and filed a report on 7.10.2009. Thereafter, the present application was filed by the petitioner herein seeking for re-issuing warrant to the Advocate Commissioner to inspect the suit property once again and file a report. The said application was resisted by the respondent Municipality. The Court below found that the application was filed only with an intention to drag on the proceedings rather than to meet the ends of justice. It is also found by the Court below that the partition deed dated 18.9.1903, based on which the petitioner seeks for re-issuance of warrant, has no ward number nor there was any block number or survey number given so as to enable the Advocate Commissioner or the surveyor to measure the suit property.

(2.) Learned counsel for the petitioner submitted that the Advocate Commissioner sought assistance of the surveyor of the respondent Municipality and therefore when the suit itself is filed against the Municipality, his assistance ought not to have been taken for measuring the property. It is also his contention that the partition deed dated 18.9.1903 was not taken note of at the time of making the inspection.

(3.) Per contra, the learned counsel appearing for the respondent Municipality submitted that the surveyor of the Municipality is the proper person from whom assistance can be taken by the Advocate Commissioner and accordingly his assistance was taken. Merely because, he is an employee of the respondent Municipality, such assistance cannot be put against the report filed by the Advocate Commissioner.