M. KALA DEVI Vs. KASTHOORI JEYARANI

JUDGEMENT

(1.) THE plaintiff in O.S. No. 75 of 2014 on the file of Principal District Munsif, Sankarankoil, has filed the above civil revision petitions challenging the orders passed in the memo filed by her in I.A. No. 361 of 2014 in O.S. No. 75 of 2014 and in the memo filed by the defendant in O.S. No. 75 of 2014.

(2.) THE plaintiff filed the suit in O.S. No. 75 of 2014 for permanent injunction. In the said suit, the plaintiff filed an application I.A. No. 361 of 2014 seeking for appointment of Advocate Commissioner to measure the suit property and to note down the physical features of the same with the help of Taluk Surveyor and the qualified engineer to file a report along with a plan. The Trial Court appointed an Advocate Commissioner for the said purpose. After the appointment of the Advocate Commissioner, the plaintiff filed a memo in the said application to direct the Advocate Commissioner to inspect the property along with the qualified engineer to ascertain the age of the building. Similarly the defendant filed a memo in the suit to ask the Advocate Commissioner to inspect the property in S. No. 37/2 measuring an extent of 57 cents based on a sale deed of the year 1988. The Trial Court allowed the memo filed by the defendant and directed the Advocate Commissioner to measure the property in S. No. 37/2 measuring an extent of 57 cents and file his report. However, the Trial Court dismissed the memo filed by the plaintiff stating that the age of the building can be ascertained only by evidence. Aggrieved over the orders passed by the Trial Court in both the memos, the plaintiff has filed the above civil revision petitions.

(3.) A Division Bench of this Court held that the ascertainment of the age can be done only by a qualified engineer and the same cannot be done by an Advocate Commissioner. When the Trial Court had already appointed the Advocate Commissioner to note down the physical features, the said order cannot be altered or modified by way of memo filed by the parties. But, in the case on hand, the Trial Court modified its order on the memo filed by the defendant, which is erroneous and it is liable to be set aside. Since the plaintiff had averred about the ascertainment of the age of the building in the affidavit filed in support of the application in I.A. No. 361 of 2014 in O.S. No. 75 of 2014, I am of the view that the plaintiff should be given an opportunity to seek for such a relief in the prayer. In these circumstances, the orders passed by the Trial Court in the two memos are liable to be set aside and both the parties are at liberty to file applications only in the application filed earlier by the plaintiff in I.A. No. 361 of 2014 in O.S. No. 75 of 2014 seeking for the relief sought for in the memos filed by them respectively. In these circumstances, the orders passed in two memos are set aside and the civil revision petitions are allowed. The plaintiff and defendant are given liberty to file applications in I.A. No. 361 of 2014 in O.S. No. 75 of 2014 seeking for appropriate relief, within a period of two weeks from the date of receipt of a copy of this order. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.