GOVINDARAJU Vs. K MUTHUKUMARASWAMY

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the order dated 11. 06. 2003 made in I. A. No. 155 of 2003 in O. S. No. 269 of 2001 by the learned Principal District Munsif, Valangaiman at Kumbakonam, dismissing the petition filed under Order XVI Rule 9 and Section 151 C. P. C, declining to appoint Advocate Commissioner. The Plaintiff is the Revision Petitioner.

(2.) THE Plaintiff and the Defendant are Brothers. THE brothers are pitted against each other on enjoyment of common lane. Case of the plaintiff is that he is residing in New Door No. 58/3-B. THE Defendant is residing in New Door No. 2/72. In between the two houses, there is a common lane covering 90 feet in length and 17 feet in breadth. THE Plaintiff is a Lessee of r. S. No. 58/3 and R. S. No. 106/11 total extent of 81 cents under thiruvavaduthurai Atheenam. R. S. No. 58/3 is the Suit Property in O. S. No. 269 of 2001. THE Plaintiff and the Defendant have been using the common lane for a number of years. THE common lane is in existence for more than 70 years. THE Plaintiff is using the common lane for taking Lorries, Cart, Truck and Tractors to take the coconuts, since the Plaintiff's Wife is doing coconut business. While so, the Defendant is illegally trying to construct over common lane and blocking the portion of the common lane. Hence, the Plaintiff has filed the Suit for mandatory Injunction for removal of the offending construction and the restoration of the portion over which illegal construction has been made and also for Permanent Injunction restraining the Defendant from in any manner making any further construction.

(3.) AGGRIEVED over the order of refusal to appoint advocate Commissioner, the Plaintiff has preferred this Civil Revision petition. Learned counsel for the Revision Petitioner would contend that the existence of the lane could be brought out only by appointing the Advocate commissioner and noting the physical features thereon. Submitting that the appointment of Advocate Commissioner would cause no prejudice to the Defendant, learned counsel for the Revision Petitioner / Plaintiff has contended that by the appointment of Commissioner and finding out the exact measurement of the lane and the offending construction, much oral evidence would be reduced.