BASKARA SETHURAMALINGAM Vs. M SETHURAMALINGAM

JUDGEMENT

(1.) The revision petitioner is the plaintiff in O.S.No.24 of 2013 on the file of learned I Additional District Munsif Court, Tirunelveli and in the suit, the revision petitioner/plaintiff sought for declaration and perpetual injunction. During pendency of the suit, the petitioner/plaintiff has filed an application in I.A.No.643 of 2014 for appointment of an Advocate Commissioner to inspect the suit property and note down its measurements with the assistance of a Surveyor and the said application was dismissed by the Trial Court, stating that there is no need to consider appointment of an Advocate Commissioner in this case. Challenging the said order, the petitioner is before this Court.

(2.) Heard the learned counsel for the petitioner and the learned counsel for the respondent/defendant.

(3.) It is the case of the revision petitioner that he is the son of one Nallsamy Thevar born through his 2nd wife and he, as the legal heir of the said Nallasamy Thevar, had inherited the property after his death and the 1st wife of his father filed O.S.No.195 of 1976on the file of Sub Court, Tirunelveli for partition of the various family properties and the said suit was partially decree on 02.05.1978 and she / 1st wife was allotted half share in Item Nos.4 and 7 / 2nd schedule of O.S.No.195 of 1976. The appeal suit and second appeal filed against O.S.No.195 of 1976 were dismissed from his ancestors and after the demise of his father, a release deed was executed by the legal heirs of the plaintiff's father in favour of the plaintiff. It is the further case of the revision petitioner that pending the suit, the 1st wife of his father transferred the suit item 4 (1st schedule) and 7 and the revision petitioner has got a preferential right to buy them back from the defendant. It is also submitted that the revision petitioner has got the easement right in the property, as the 1st schedule property is the only property giving access to the plaintiff to reach his eastern house. Therefore, the plaintiff had filed the suit seeking the relief of giving preferential right to buy 1st schedule property and giving easement right to the plaintiff, during pendency of which, the plaintiff filed an application before the Trial Court for appointment of Advocate Commissioner to ascertain the exact physical features of the suit property. But the Trial Court, instead of exercising its discretion vested under Order 26 Rule 9 CPC, dismissed the said application.