R SUDALAIMUTHU Vs. PONNUCHAMY AMBALAM

JUDGEMENT

(1.) THE petitioner is the plaintiff, who filed a suit in O.S.No.475 of 2007 on the file of First Additional Subordinate Court, Madurai for permanent injunction. Pending trial of the case, the defendants filed an application in I.A.No.935 of 2007 under Order 26 Rule 9 and Section 151 CPC for appointment of an Advocate Commissioner to inspect the suit property, to note down the nature of the suit land and other physical features thereon and file his report.

(2.) IN the affidavit, it is stated that the first petitioner / first defendant is the cultivating tenant in a portion of the land and that they have been in possession for over 75 years. It is further stated that the nature of the suit property has to be established to substantiate their contentions and that it was originally a nanja land at the time of institution of suit also be shown. It is further alleged that after obtaining ex parte ad-interim injunction, the plaintiff has collected mud and quarry materials and put the same in the suit land and thereby, made the suit field unfit for cultivation.

(3.) LEARNED counsel for the petitioner Mr. T.R. Jeyapalam would submit that there is no necessity for appointment of Advocate Commissioner inasmuch as there is no dispute from the side of the plaintiff with regard to the location of the property, measurement of the property and the nature of the suit land. It is his further contention that even the plaintiff in the counter has fairly admitted that he has dumped 300 lorry loads of mud and quarry materials in the suit land and the even if the Advocate Commissioner is appointed, no useful purpose would be served. He also submits that the possession of the property could not also be found out by an Advocate Commissioner.