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2007 DIGILAW 1960 (MAD)

Appavoo & Another v. N. Shanmugam & Others

2007-06-29

S.ASHOK KUMAR

body2007
Judgment :- This Civil Revision Petition is filed by the defendants against the fair and decretal order dated 13. 2007 made in I.A.No.368 of 2007 in O.S.No: 105 of 2007 by the learned District Munsif, Tiruchengode allowing the I.A., filed under Order 26 Rule 9 by the plaintiffs for appointment of Commissioner to inspect the suit property, note down the physical features and to file report and plan. 2. The suit has been filed for the relief of permanent injunction restraining the defendants from in any manner interfering with the usage of the suit cart track by the plaintiffs or cause damage to the suit cart track. They are using the suit cart track situate on the eastern side of S.No.246. The defendants are having lands on the western of S.No.246/2. Even in the document dated 29. 1956 obtained by the predecessors of the defendant such fact has been mentioned. The parent documents and also the Village map also show the existence of the suit cart track. Due to some estrangement, the defendants are now attempting to prevent the usage of the cart track taking advantage of the existence of the suit track along their side. Hence the appointment of an Advocate Commissioner is necessary for the grant of the relief prayed for in the Interlocutory Application. .3. The defendants resisted the said application by filing a counter stating that the pathway runs east west on the eastern side of the defendants land in s.No.246/2 exclusively belongs to the defendants and their predecessors in title to take cart, bullock, cattle men and other vehicle to their lands on the Southern side. It is true that the plaintiffs are having pathway as itteri on the south of the defendants land which runs in S.Nos:251 and 256 where the first petitioners lands are situated and the plaintiffs are using the same to reach their land from Tiruchengode to Velur Road and to take cart and other vehicles. The suit has been filed with ulterior motive claiming right over the exclusive right of usage of the defendants pathway. The grant of prayer in the Interlocutory Application is not necessary since the suit is not one based on prescriptive right of easement and on the contrary the plaintiffs could establish their right of pathway through the recitals found in the documents of title. 4. The grant of prayer in the Interlocutory Application is not necessary since the suit is not one based on prescriptive right of easement and on the contrary the plaintiffs could establish their right of pathway through the recitals found in the documents of title. 4. The learned District Munsif, Thiruchengode, on a consideration of the pleadings and submissions, allowed the Interlocutory Application holding that an opportunity should be given to the plaintiffs by appointing an Advocate Commissioner to know whether the averments in the Counter Affidavit of the defendants are true or not. Aggrieved of the same, the present revision is filed by the defendants. 5. The learned counsel for the revision petitioners contended that the plaintiffs have to succeed or fail on the strength of his case and not on the weakness of the defense. Further there is no sufficient cause shown for the appointment of an Advocate Commissioner made out by the plaintiffs and their only attempt appears to be to collect evidence. Further it is a well settled principle of law that an Advocate Commissioner should not be appointed to find out the possession of the property which has to be adjudicated by court after recording oral and documentary evidence. In support of her contention, the learned counsel relied on the decisions of this court in Pillaiyar Vs. Ganesan and Sungaiah ( 2000 (1) LW 699 ) and Chinnathambi and others Vs. Anjalai ( 2007 (I) MLJ 513 ). .6. It is true that the Advocate Commissioners report and plan cannot substitute the documentary evidence like title deeds, Village Map, etc., But, a perusal of the order impugned would show that the trial court was convinced in granting the relief only to assist the court in arriving at a right decision. The court can appoint Advocate Commissioner for local investigation and such local investigation is to be done at the earliest stage of litigation regarding identification, location and measurement of land or premises or object of suit property. Such report and plan is to be used for appraisal of the situation and or better understanding of evidence of parties. Primary object of .appointing an Advocate Commissioner is to guide the court in the process of decision making and not to be used as the basis of decision. Such report and plan is to be used for appraisal of the situation and or better understanding of evidence of parties. Primary object of .appointing an Advocate Commissioner is to guide the court in the process of decision making and not to be used as the basis of decision. In the present case, since the relief claimed is for interim injunction restraining the defendants from preventing or damaging the very suit cart of the plaintiffs, and the case of the defendants is that the plaintiffs are having separate ittery and have no rights over the defendants pathway, the appointment of an Advocate Commissioner is very much essential to find out whether the suit cart track leads to the property of the defendant and also whether there is any alternative pathway for the defendants and by this process, no prejudice would be caused to the defendants. Therefore, I do not find any illegality or infirmity in the order of the learned District Munsif, Tiruchengode. 7. In the result, the CRP is dismissed. Consequently connected MP is also dismissed. No costs.