CANDASSAMMY Vs. ARUMUGAM

JUDGEMENT

(1.) THE petitioners are the defendants and the respondent is the plaintiff in the suit. THE respondent/plaintiff filed a suit in O.S.No,601/2008 before the II Assistant District Munsif, Puducherry. It was stated that immovable property described in A-Schedule belonging to the respondent/plaintiff as well his brothers. THE respondent/plaintiff and his brothers are the absolute owners of the property. Subsequently, one brother died intestate as bachelor. THEreafter, the respondent's elder brother relinquished his rights and in favour of the respondent under the registered release deed dated 30.07.1981. THE respondent/plaintiff is absolute and exclusive owner of the A-Schedule mentioned property and enjoying and possessing the property without any encumbrances. THE respondent/plaintiff started construction of terrace house in the year of 2007 on the A-Schedule mentioned property. THEre is a vacant site for constructing the latrine and bath room on the northern west corner side in an extent of 90 sq.ft approximately in the said B-Schedule property. THE petitioners/defendants are the adjacent owner of the A-Schedule property and their property re-survey No.187/65, but the respondent/plaintiff re-survey No.187/66. So, both the petitioners/defendants and respondent/plaintiff's re-survey numbers are totally different. It was alleged that the petitioners/defendants suddenly trespassed and encroached the B-Schedule of the suit property. Hence, the respondent/plaintiff filed a suit in O.S.No,601/2008 seeking to pass the mandatory injunction to direct the defendants to demolish the whatever structures illegally put up by them on the B-Schedule of the suit property and to hand over the possession as vacant to the plaintiff by the defendants, their agents, representatives, successors, legal heirs, and whomsoever claiming through them to pass permanent injunction restraining the defendants, their henchmen, agents, representatives, successors, legal heirs, and whomsoever claiming through them from in any manner to disturb, dispossess and interfering with the plaintiff's peaceful and lawful possession of the suit property: THE petitioners/defendants also filed a written statement denying all the allegations and stated that no merits in this case and the suit may be dismissed with costs. Subsequently, the respondent/plaintiff filed I.A.No.1415/2008 seeking to appoint an Advocate Commissioner to visit the A-Schedule suit property and also petitioners/defendants property and measure the same with assistance of qualified surveyor to fix both parties boundaries by production of documents and separately measure the B-Schedule of the suit property and note down the physical features of the properties. THE petitioners/defendants also filed a counter statement denying all the allegations and stated that the application is devoid of merits and the same should be dismissed. After hearing arguments on both sides, the trial Court allowed the application as preferred by the respondent/plaintiff and appointed an Advocate Commissioner. Aggrieved by that order, the petitioners/defendants filed the present civil revision petition.

(2.) LEARNED counsel appearing for the petitioners/defendants submitted that the trial Court erred in allowing the I.A. for appointment of Advocate Commissioner. He further submitted that the trial Court failed to consider as per the description of the suit 'B' Schedule property. The alleged encroachment is inside the suit property and hence there is no necessity to appoint the Advocate Commissioner. Further, he vehemently contended that the trial Court erred in directing the advocate commissioner to inspect the petitioners' property, which is unwarranted as the same is not the subject matter of the suit and also appointment of advocate commissioner only to gather evidence to prove the possession of the suit property. Therefore, the order passed by the trial Court is not in accordance with law and the same has to be set aside.

(3.) WITH the above observations, the Civil Revision Petition is partly allowed. No Costs. Consequently, connected M.P.No.1 of 2009 is closed.