N. ELUMALAI Vs. K.G. MAHAN

JUDGEMENT

(1.) This Civil Revision Petition is filed against the fair and decretal order dated 08.06.2013 made in I.A.No.691 of 2012 in O.S.No.781 of 2011 on the file of the Principal District Munsif, Alandur.

(2.) The petitioner is defendant and respondent is the plaintiff in O.S.No.781 of 2011 on the file of the Principal District Munsif, Alandur. The respondent filed the said suit for permanent injunction restraining the petitioner from putting up any further construction in the schedule 'B' property i.e., the 16 feet width road named as Natesan Street and mandatory injunction directing the petitioner to remove the construction already put up by him encroaching 'B' schedule property. On an application in I.A.No.1693 of 2011 filed by the respondent, an Advocate Commissioner was appointed. He inspected the suit property in the presence of the petitioner and respondent and filed the report. The petitioner filed objection and filed the present application, I.A.No.691 of 2012 under Order 26, Rule 9 and section 151 of C.P.C for re-issue of warrant of commission to the same Advocate Commissioner to identify 'B' schedule property with the help of Taluk Surveyor, to find out whether 'B' schedule property is a Government land or it is a private property and to file report. According to the petitioner, 'B' schedule property is a private property and it is not a public property.

(3.) On the other hand, the respondent filed counter affidavit and contended that 'B' schedule property is a public pathway and Panchayat has laid cement concrete road and Panchayat is maintaining the same. All the general public are using the 'B' schedule property as pathway. The Taluk Surveyor cannot determine whether it is a private property or public property and submitted that only from Revenue record, this fact can be ascertained and prayed for dismissal of the application.