M V RATHINAM Vs. PADMADEVI

JUDGEMENT

(1.) THE defendants in the suit are the Revision Petitioners. The plaintiff filed the suit for declaration in respect of a cart track termed as ABC in the suit plaint and sketch annexed thereto. According to her, it is the exclusive cart track to be used by her and her family members to enjoy the properties comprised in Survey No. 1167/3 Punchai lands to an extent of 6. 07 as well as survey No. 1139 to an extent of 2. 88 acres on the western side of the total extent of 21. 18 acres. Pending the suit, the second defendant, who is the second petitioner in the revision has filed a written statement denying the existence of such cart track as an exclusive cart track used by the plaintiff. But, also stating that there is an alternate cart track available to the plaintiff on the northern side of survey no. 1167/3 adjacent to the property of the plaintiff.

(2.) THE plaintiff has filed I. A. No. 1658/2004 pending the said suit in O. S. No. 905/2007 in which an Advocate Commissioner was appointed, who after visiting the suit property has filed an original report bringing out the physical features of the suit property along with the sketch. After the defendants/petitioners have entered appearance, there was another application filed by the plaintiff in I. A. No. 2091/2004 for reissuing of the warrant to the Advocate Commissioner to note down the physical features. The said application was ordered by the Trial Court and the Commissioner was reissued. Accordingly, the learned Advocate Commissioner has visited the suit property once again and filed his second report stating about the actual position of the cart track with an observation that the said cart track joins the properties belonging to the plaintiff. He has also stated in the second report that he has observed the traces of cart in an alternate place that has also been pointed out by the Advocate Commissioner in his second report. Thereafter, the defendants have filed the written statement.

(3.) IN the Written Statement, the defendants have stated that an alternate passage is available to the plaintiff. On that basis, the plaintiff have filed the third application in I. A. No. 1098/2007 for appointment of Advocate Commissioner, which is stated to have been subsequently corrected as reissue of the same Commissioner to note down the physical features of the suit property. In the affidavit filed in support of the said petition, the plaintiff/petitioner has stated that the suit cart track was visited by the Advocate Commissioner earlier during summer and due to the monsoon, the alternate cart track which has been stated by the defendant has been submerged by water and actually there is no alternate cart track available for the usage of the plaintiff and it is to find out the said position, the said application for reissue of Advocate Commissioner filed.