APPAVOO Vs. N SHANMUGAM

JUDGEMENT

(1.) THIS Civil Revision Petition is filed by the defendants against the fair and decretal order dated 13.3.2007 made in I.A.No.368 of 2007 in O.S.No: 105 of 2007 by the learned District Munsif, Tiruchengode allowing the I.A., filed under Order 26 Rule 9 by the plaintiffs for appointment of Commissioner to inspect the suit property, note down the physical features and to file report and plan.

(2.) THE suit has been filed for the relief of permanent injunction restraining the defendants from in any manner interfering with the usage of the suit cart track by the plaintiffs or cause damage to the suit cart track. THEy are using the suit cart track situate on the eastern side of S.No.246. THE defendants are having lands on the western of S.No.246/2. Even in the document dated 26.9.1956 obtained by the predecessors of the defendant such fact has been mentioned. THE parent documents and also the Village map also show the existence of the suit cart track. Due to some estrangement, the defendants are now attempting to prevent the usage of the cart track taking advantage of the existence of the suit track along their side. Hence the appointment of an Advocate Commissioner is necessary for the grant of the relief prayed for in the Interlocutory Application.

(3.) THE learned counsel for the revision petitioners contended that the plaintiffs have to succeed or fail on the strength of his case and not on the weakness of the defense. Further there is no sufficient cause shown for the appointment of an Advocate Commissioner made out by the plaintiffs and their only attempt appears to be to collect evidence. Further it is a well settled principle of law that an Advocate Commissioner should not be appointed to find out the possession of the property which has to be adjudicated by court after recording oral and documentary evidence. In support of her contention, the learned counsel relied on the decisions of this court in Pillaiyar Vs. Ganesan and Sungaiah (2000 (1) LW 699) and Chinnathambi and others Vs. Anjalai (2007 (I) MLJ 513).