ADHIMOOLAM Vs. KUMARAVEL

JUDGEMENT

(1.) The petitioner has come up with the present Civil Revision Petition seeking to set aside the fair and final order dated 10.04.2015 made in I.A.No.1446 of 2014 in O.S.No.9 of 2008 on the file of the District Munsif Court, Attur, wherein an Advocate Commissioner was appointed to inspect the suit property with the help of a qualified surveyor and note down the physical features and file a report along with plan.

(2.) The learned counsel appearing for the petitioner would submit that the respondents herein as plaintiffs have filed a suit for declaration, permanent injunction and mandatory injunction. In the said suit, the revision petitioners who are the defendants had filed an application in I.A.No.72 of 2008 for appointment of an Advocate Commissioner to inspect the suit property. In the said application, an Advocate Commissioner was appointed and he inspected the suit property on 10.01.2008 and filed a report along with plan on 21.01.2008. It is pertinent to note that no one had filed any objection to the said report filed by the Advocate Commissioner. However, the plaintiffs have now come forward with an application in I.A.No.1446 of 2014 to appoint a commissioner with qualified surveyor to measure the description of properties and to fix the boundaries and specifically mention the encroached portion of the suit cart track and to note down the physical features of the suit property and submit a report. The Trial Court after hearing the arguments advanced by both sides allowed the application, against which the present civil revision petition has been preferred. The learned counsel would mainly contend that without setting aside the earlier report filed by the Advocate Commissioner, the present application to appoint a commissioner should not have been filed. The Trial Court without considering the said aspect had allowed the application and hence, the learned counsel for the petitioner prayed for allowing the revision.

(3.) Resisting the same, the learned counsel for the respondent would submit that in the report filed by the Advocate Commissioner in I.A.No.72 of 2008, it has been specifically stated in paragraphs 2, 3 and 4 that there is a cart track in the suit property and some new plantations were found to be made in the suit property. Further, after the filing of the said report by the Advocate Commissioner, the respondents/plaintiffs had filed a petition for amendment and prayed for the relief of mandatory injunction. Hence, to prove the actual area of encroachment, the appointment of Advocate Commissioner is necessary. That factum was rightly considered by the Trial Court and a Commissioner was appointed to inspect the suit property. Thus, the learned counsel for the respondent prayed for dismissal of the revision.