KAMALA DEVI Vs. T P MANOHARAN

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed by the plaintiff against the order of dismissal dated 07.03.2008 passed by the District Munsif-cum-Judicial Magistrate, Nannilam in I.A.No.362 of 2007 in O.S. 52 of 2007 the application seeking for an order of re-issuance of Warrant of Commission to inspect the suit property and to measure the same with the assistance of a qualified surveyor.

(2.) THE brief facts of the case put forth by the respective parties before the trial Court are as follows:-(a) THE suit was filed for bare injunction in respect of the suit Old S.No.9/1 and New S.No.9/3 measuring an extent of 12 cents and the application in I.A.No.248 of 2007 was filed for interim injunction along with application in I.A.No.249 of 2007 for appointment of Advocate Commissioner. On 10.08.2007 Advocate Commissioner was appointed and taking advantage of the delay of 4 days in the appointment of the Advocate Commissioner, the defendant highhandedly removed the old compound wall which was found place in the ancient partition deed of the year 1929 and put up a new compound wall. THE learned Advocate Commissioner has not fulfilled the purpose of the warrant and submitted his report and rough sketch exceeding his limits. THE plaintiff filed her objection. While that being so on 28.09.2007, the defendant had filed his written statement with all sorts of false allegations suppressing the real facts and stating that the plaintiff has got right over 10 cents only. In fact, as per the patta which was given 15 years back based on the partition deed of the year 1929, the plaintiff was having right over 12 cents. THErefore, in the interest of justice, the Advocate Commissioner should be redirected to inspect and measure the suit property again with the help of a qualified surveyor and submit a detailed report as to the features of the property along with a rough sketch. Hence, this petition. (b) THE defendant had not only resisted the claim of the plaintiff but also contended that the plaintiff had filed her objection to the Report of the Commissioner and the petition for re issuance of commissioner warrant has been filed in order to protract the proceedings.

(3.) THE learned counsel for the revision petitioner would submit that the trial Court had misconstrued the fact and held that the re issuance of Warrant of Commissioner cannot be ordered to the same Commissioner, unless the earlier report of the Commissioner is scrapped and had wrongly dismissed the application filed by the plaintiff. THE reasons given by the trial Court that the measurement of the property have been mentioned in the report of the Commissioner and the identity of the suit property is not in dispute, are not correct whereas during the inspection the Commissioner did not measure the entire property of the plaintiff and had discover or locate the portion encroached by the defendant. She would further submit that the question of scrapping of earlier report of the Commissioner would not arise as the same Commissioner could be directed to measure the entire property with the assistance of a qualified surveyor and to file additional report with rough sketch drawn by the Surveyor. THE trial Court has failed to distinguish the re issuance of Warrant of Commission with the issuance of the Second Commission and therefore, the order of the trial Court requires interference of this Court.