R.V.GANESA NAICKER Vs. PAINTER SELVARAJ

JUDGEMENT

(1.) The review petition is filed by the plaintiff in the suit, who had come to Court seeking declaration of title and mandatory injunction.

(2.) The plaintiff claimed title to the suit property by virtue of a sale deed dated 24.09.1963 and claimed to be in possession and enjoyment of the same by paying taxes. As the defendants were trying to encroach upon the property and disturb his possession, the suit in O.S.No.5 of 1996 on the file of the District Munsif-cum-Judicial Magistrate Court, Arcot, came to be filed. The trial court dismissed the suit on 28.04.1999 and on appeal in A.S.No.37 of 1999, the lower appellate court, i.e., the Subordinate Court, Vellore, being the final fact finding Court, confirmed it. In the Second Appeal also, the said concurrent decisions were confirmed by this Court. The review petition is now filed by the plaintiff/appellant contending that an Advocate Commissioner was appointed by this Court vide order dated 11.08.2011, who had filed a report, which was not considered by this Court, while passing the judgment in the instant Second appeal.

(3.) First of all, it has been well-settled that a review petition can be filed only by the counsel, who appeared for the petitioner/appellant earlier. Change of counsel is deprecated, as the new counsel may not know what transpired between the Court and the counsel, when the matter was argued. The present review petition is one such case, where, the ground on which, the review petition was filed is that pending the Second Appeal, an Advocate Commissioner was appointed to go along with the Surveyor to measure the suit property, correlate the same with Exs.A.2 and A.5 and other documents, that were indicated in the order dated 11.08.2011, and to file a report. It is stated that the Advocate Commissioner so appointed by this Court had executed his warrant and filed a report on 30.11.2011 and the said report had not been adverted to by this Court in the judgement delivered in the second appeal is the complaint made now.