G MANOHARAN Vs. A RAJESWARI

JUDGEMENT

(1.) The petitioner is the defendant in O.S. No. 168 of 2002 on the file of the District Munsif Court, Srivilliputhur. The respondent filed a suit for permanent injunction and also for mandatory injunction. The suit was decreed in favour of the respondent and the petitioner carried the matter on appeal in A.S. No. 34 of 2006 on file of the Subordinate Court, Srivilliputhur. Pending hearing of the appeal, this petitioner filed an application under Order 26, Rule 9, C.P.C. for appointment of an Advocate Commissioner to measure the first Schedule property namely, the lane as well as the houses belonging to both parties.

(2.) In the affidavit, he has stated that the trial Court appointed an Advocate Commissioner and at the time of his inspection on 21.06.2002, he requested him to measure the walls of the houses belonging to both parties but the Advocate Commissioner refused to do the same. In addition to this, he has not mentioned anything about the boundaries or measurements in his report. Only when the measurements of houses of both parties are taken, the fact as to whether the first Schedule property is a common lane or a private lane, can be ascertained.

(3.) The petition was resisted by the respondent by stating that there is no need to measure the properties belonging to both parties and Exs. A.2, A.3 & A.10 are enough to decide the measurements of the properties.