KRISHNAN PILLAI Vs. CHELLATHAMMAL

JUDGEMENT

(1.) The revision is filed challenging the order passed in I.A. No. 406 of 2007 in O.S. No. 161 of 2000, wherein, the trial Court has rejected the request of the petitioner seeking appointment of commissioner to inspect and measure the suit property and file a report with the help of the surveyor.

(2.) The petitioner being the plaintiff filed a suit for permanent injunction restraining the respondents herein from interfering with the peaceful possession and enjoyment of the suit property. Pending the suit, an application for appointment of commissioner was made and the said application was ordered and accordingly a report was also filed with respect to the note down of the physical features. Thereafter, the present application has been filed to measure the suit property with the help of the surveyor.

(3.) A perusal of the averments made in the affidavit filed in support of the application would show that the basis of the application is that the respondents have removed the fence put up by the petitioner and damaged the same. The Court below has dismissed the said application by holding that the earlier application is sufficient and the present application is an injunction suit, cannot be allowed. The Court below held that the application cannot be allowed for collecting evidence by parties. The learned counsel appearing for the petitioner submitted that in order to solve the dispute between the parties a commissioner can be appointed. It is further submitted that the respondents herein have encroached certain portion of the suit property and hence, the application ought to have been allowed by the Court below. The learned counsel has also relied upon the judgments in Sivagurunathan v/s. Ramalingam and Others (2005) 3 MLJ 525,S. Palanisamy Gounder v. N. Palanisamy and three Others (2007) 8 MLJ 301 :2007 (1) CTC 611, R. Sudalaimuthu v. Ponnuchamy Ambalam, Thiruppathy, Thangapandi, (2009) 3 L.W. 66 and Padmanabhan v/s. Krishnamurthy 2005 (3) CTC 619, in support of his case that even in a suit for permanent injunction, a commissioner can be appointed. He further submitted that when there is some dispute regarding the location of the property and the extent is denied, in such case, a commissioner can be appointed.