SUBBAIAH Vs. SIVAPERUMAL

JUDGEMENT

(1.) This Civil Revision Petition is filed by the Appellant in A.S.No. 115 of 2012 so as to challenge the order dated 19.11.2013 in I.A.No. in A.S.No.115 of 2012 on the file of the Principal Subordinate Judge, Tirunelveli (the First Appellate Court). The said I.A. was filed to scrap the report submitted by the Advocate Commissioner before the trial Court on 10.03.2010 and to appoint a new Advocate Commissioner to inspect the properties with the assistance of the Taluk Surveyor and submit a report thereon. The present Civil Revision Petition is filed to set aside the order dismissing the said I.A.

(2.) The Respondent herein is the Plaintiff in O.S.No.511 of 2007 which was filed for a permanent injunction to restrain the Revision Petitioner/Defendant from interfering with the Plaintiff's peaceful possession and enjoyment of the plaint schedule property at plot No.43 A at Kodaganallur village, Tirunelveli Taluk. After the written statement was filed in the said suit raising a dispute with regard to the identity of the property and the boundaries thereof, an interim application was filed for the appointment of an Advocate Commissioner. Pursuant thereto, the said application was allowed and a warrant was issued on 09.10.2007 to the Advocate Commissioner in I.A.No.1129 of 2007 in the said suit. In execution of the said warrant, the Advocate Commissioner inspected the property on 09.10.2007 and submitted a report dated 12.10.2007. Thereafter, I.A.No.1508 of 2008 appears to have been filed to re-issue the warrant to the same Advocate Commissioner and by order dated dated 22.01.2009, the warrant was re-issued to the same Advocate Commissioner. Thereafter, the said Advocate Commissioner inspected the property once again on 09.01.2010 along with the Surveyor.

(3.) Based on such inspection, the Advocate Commissioner submitted a report dated 10.03.2010 along with the plan submitted by the Surveyor and a sketch of the property. The Revision Petitioner filed objections to the report of the Advocate Commissioner on 12.01.2010 and 16.04.2010. In the said objections, the main grievance of the Revision Petitioner appears to be that the measurements were taken only from West to East and that the property of the Revision Petitioner / Defendant, namely, Plot No.43 is stated to be situated within the road. It is further stated therein that there is a water body between the Revision Petitioner's property and the road and that, therefore, the findings of the Advocate Commissioner are incorrect. However, the Revision Petitioner did not file an application to scrap the report of the Advocate Commissioner and it does not appear as if the Advocate Commissioner was cross examined by the Revision Petitioner. In these facts and circumstances, the suit was disposed of by judgment and decree dated 08.04.2011 in favour of the Respondent/ Plaintiff. The said judgment and decree was appealed against by the Revision Petitioner by filing A.S.No.115 of 2012 before the First Appellate Court. The application for scrapping the report dated 10.03.2010 of the Advocate Commissioner and to appoint a new Advocate Commissioner was filed in the said appeal suit, which culminated in the order of dismissal dated 19.11.2013.