MURUGESAN Vs. PARAMASIVAM

JUDGEMENT

(1.) THE petitioner as plaintiff, had filed a suit in o. S. No. 379 of 1994 before the District Munsif Court , Perambalur for Permanent Injunction. Since the said suit was dismissed on the ground that the existence of the pathway was not established, he preferred an appeal in A. S. No. 32 of 1997 before the Sub Court , ariyalur. Along with the appeal, he filed I. A. No. 141 of 1997 for appointment an advocate-Commissioner to inspect the suit property and note down the physical features of the suit property. Subsequent to the constitution of District court, Perambalur, the said appeal was transferred to the District Court, perambalur and re-numbered as I. A. No. 117 of 2003 and A. S. No. 144 of 2002. THE issue to be decided in the case is with regard to the existence of a pathway.

(2.) THE said application was allowed to be pending for about 7 years right from 1997. THE petitioner herein did not take any steps for the disposal of the said application. However the matter was taken up and heard by the learned District Judge, Perambalur. On 15. 10. 2003, after hearing both sides, the learned District Judge has dismissed the application, observing that the application has been pending for over seven years; that before the lower court, the appellant/plaintiff had not taken any steps for appointment of advocate Commissioner and after 10 years the physical features have been changed and even if the Commissioner is appointed, it is not possible for the commissioner to find out the physical features as on the date of filing of the suit and that the petition is a belated one. THE appellant/plaintiff has carried the said order in Revision before this Court.

(3.) WHILE adverting to the facts of the present case, it is with regard to the finding out of existence of a pathway. The suit was filed in the year 1994 and the suit was dismissed and appeal was filed in the year 1997. In the written statement filed by the defendants before the District munsif Court, the defence was taken that no alternative path way is available and the existence of the path way was disputed. The plaintiff had not taken any steps for appointment of commissioner before the trial Court and even before the appellate Court, the present petitioner was not ready in the application for appointment of Commissioner. The District Judge has observed that the physical features might have changed. This Court is quite agreeable with the reasonings assigned by the learned District Judge that the physical features are bound to get altered due to the passage of time and even if the commissioner is appointed at this stage, it may not be possible for him to describe the features which were available at the time of filing of the suit and the appointment of commissioner may not be useful for the proper and final adjudication of the rights of the parties. In these circumstances, there is no necessity to dislodge the findings of the learned District Judge and the Civil revision petition suffers dismissal.