MUTHUKRISHNAN AND OTHERS Vs. SUBBIAH

JUDGEMENT

(1.) The revision petitioner is the defendant in O.S. No. 173 of 2005 on the file of Principal District Munsif Court (FAC), Manapparai, Trichy District and the plaintiffs filed a suit for permanent injunction to restrain the defendant from interfering with the peaceful possession and enjoyment of the suit property. During pendency of the suit, the defendant/revision petitioner filed an application in I.A. No. 802 of 2017 for appointment of a new 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 the revision petitioner has filed the petition for appointing another Advocate Commissioner after a gap of several years. Challenging the said order, the petitioner is before this Court.

(2.) It is the case of the revision petitioner that the earlier Advocate Commissioner, without properly noting down the measurements, has mentioned in the report that there is an encroachment and the report is also bereft of particulars. Unless the property is measured on the basis of the partition deed, no definite conclusion can be arrived at and therefore, it becomes absolutely necessary to appoint a new Advocate Commissioner and measure the property. It is the further case of the petitioner that the suit filed by the petitioner in O.S. No. 186 of 2005 was decreed in his favour, whereas the suit in O.S. No. 187 of 2005 filed by the plaintiffs stood dismissed.

(3.) The revision petitioner states that the reason for dismissal as stated by the Trial Court that the suit has been pending for about 13 years, does not hold good, as the suit was dismissed for default on 13.12.2009 on account of the absence of the plaintiffs and the same was restored in the year 2010 and the revision petitioner alone cannot be blamed for such a long delay. He also states unless a new Advocate Commissioner is appointed and the property is surveyed, he cannot be in a position to defend his case effectively. Therefore, it is pleaded that it is absolutely necessary for appointment of yet another Advocate Commissioner.