LAWS(MAD)-2018-4-1665

MARUTHAI NATTAR Vs. AYYAVU

Decided On April 18, 2018
Maruthai Nattar Appellant
V/S
AYYAVU Respondents

JUDGEMENT

(1.) The revision petitioners are the plaintiffs in O.S.No.385 of 2013 on the file of learned the District Munsif, Musiri and in the suit, the revision petitioners/plaintiffs sought for declaration among other various reliefs. During pendency of the suit, the petitioners/plaintiffs filed an application in I.A.No. 858 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, as there is no dispute between the parties regarding identification of suit properties and the plaintiffs cannot be permitted to collect evidence through Advocate Commissioner. Challenging the said order, the petitioners are before this Court.

(2.) Heard the learned counsel for the petitioners, the learned counsel appearing for R1 and the learned Government Advocate for R5 to R8. There is no representation for R2 to R4.

(3.) It is the case of the revision petitioners that originally, the suit schedule properties were owned by their father Kathaperumal Nattar, who inherited the properties by way of partition deed and the said deed was registered on 25.02.1938 and after the demise of Kathaperumal Nattar, the plaintiffs, the 1st defendant and the husband of the 2nd defendant have partitioned the properties by way of oral agreement, except the suit schedule properties. It is the further case of the revision petitioners that when the plaintiffs sent a legal notice dated 08.07.2013 to the 1st defendant regarding the hindrance being caused by the defendants 1 to 4, for which, they sent a reply on 107.2013, stating that the suit schedule properties are in joint possession and the plaintiffs have no right to convert the joint patta into an individual patta. It is also submitted that actually, the properties are solely owned by the revision petitioners and unless or until an Advocate Commissioner is appointed to ascertain the above fact, they have no other option to establish their case orally. Therefore, they filed an application before the Trial Court for appointment of Advocate Commissioner to ascertain the actual position in respect of the properties. But the Trial Court, instead of exercising its discretion vested under Order 26, Rule 9 CPC, dismissed the said application.