VISWANATHAN Vs. N.A. MUSTAFA

JUDGEMENT

(1.) The Civil Revision Petition is filed against the fair and decretal order dated 17.02.2014 made in R.E.A.No.384 of 2011 in R.E.P.No.85 of 2009 in O.S.No.938 of 1987 on the file of the Additional District Munsif Court, Namakkal.

(2.) The petitioner is fourth defendant and respondent is second plaintiff in O.S.No.938 of 1987 on the file of the Additional District Munsif Court, Namakkal. The respondent along with first plaintiff namely, N.A.Abdul Latheef, filed the above suit for declaration and injunction and obtained decree in their favour on 27.04.1993. The respondent filed R.E.P.No.85 of 2009 to arrest and detain the petitioner in civil prison on the ground that the petitioner in disobedience of the decree put up construction and prevented respondent from putting up construction. In the said R.E.P., the petitioner filed counter and is contesting the same. The respondent was examined as P.W.1 and when R.E.P. was posted for crossexamination of P.W.1, the petitioner filed R.E.A.No.384 of 2011 under Order 26 Rule 9 of C.P.C. and Section 151 C.P.C. for appointment of an Advocate Commissioner to note down the existing physical features in the petition property and A, B, C wall in particular the concrete pillar, the suit 'BC' wall put up by the petitioner to fix the temporary roof of their bathroom.

(3.) According to the petitioner, the construction is in existence for more than 40 years and it was put up by his predecessor in title. The petitioner also contended that before the decree, there was settlement between the parties. The respondent has suppressed that mediation took place in the year 1992 and there was a settlement for using AB wall as his party wall and respondent agreed not to disturb the tiled roof on the BC wall. The respondent suppressing the said settlement, obtained the decree. Only if the Advocate Commissioner is appointed to inspect the property and file his report, the real facts will come into light and prayed for appointment of Advocate Commissioner.