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2008 DIGILAW 130 (MAD)

K. Vadivel v. Natarajan & Another

2008-01-10

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment : The order passed in I.A. No. 17 of 2007, petition filed under Order 26 Rule 10 and Section 151 of C.P.C., in A.S. No.8 of 2005 on the file of the Subordinate Judge, Dharmapuri, is under challenge before this Court. 2. The learned counsel appearing for the revision petitioner relying on Marayee and Another v. Raju and Another, (1994) 2 MLJ 501 would contend that in a case where an Advocate Commissioner has already been appointed and filed his report and "plan, another Commissioner cannot appointed for the second time at the appellate stage. But that is not the case herein. No fresh commissioner was appointed by way of the order passed in I.A. No. 17 of 2007 in A.S. No.8 of 2005. 3. A Commissioner who was already appointed before the Trial Court, was reap-pointed by the Appellate Authority to fix S. No.452/1 (subject matter in Exhibit B-13) with the help of a taluk surveyor. The defendant in O.S. No.67 of 1992 had filed I.A. No. 17 of 2007 in A.S. No. 8 of 2005. The suit O.S. No. 67 of 1992 was filed by the plaintiff for declaration of a portion marked as A B C D in the rough sketch. A perusal of the rough sketch at page 17 of the type set of paper will go to show that it comes within S. No. 452/2A and S. No.452/2B. Plaint `A schedule property is in S. No. 452/2 and 452/2A and plaint `B schedule property is also in S. No. 452/2A but relating to different portions. While describing plaint `A & `B schedule properties the boundary description for plaint `A schedule property are as follows: North of defendants S. No. 452/1A South of S. No. 452/1B East of Dharmapuri - Salem main road. West of S. No. 458. The four boundaries given for plaint B schedule property are as follows: West of S. No. 458 South of S. No. 452/1 and 452/1A North of S. No. 452/2A To the extent of 20 feet Bast West, extending to the middle of S. No. 452/1B measuring 200 feet East West. The learned Advocate Commissioner, who had filed his report before the Trial Court has measured S. No.452/2, 452/2A, 452/1A and 452/1B. S. No.452/2 has been subdivided into 2A and 2B, but the learned Advocate Commissioner has failed to measure S. No.45212 and S. No.452/1 and 452/2B. The learned Advocate Commissioner, who had filed his report before the Trial Court has measured S. No.452/2, 452/2A, 452/1A and 452/1B. S. No.452/2 has been subdivided into 2A and 2B, but the learned Advocate Commissioner has failed to measure S. No.45212 and S. No.452/1 and 452/2B. Only under such circumstances assigning valid reasons in his order, the learned first appellate Judge has appointed the same Advocate Commissioner with a direction to measure S. No.452 including the subdivisions with the help of a Taluk, surveyor. 4. Only if all the subdivisions to S. No.452 are measured and identified then only the Court can be able to identify S. No. 45212 and S. No.452/2A viz. plaint `A and `B schedule properties, against which a declaration has been sought for by the plaintiff. The Trial Court has decreed the suit without S. No. 452/2 and 452/2A and other subdivisions to 452 being identified by the Advocate Commissioner. The first appellate Court has also directed the respondent herein/defendant to pay a remuneration of Rs.2,500/- to the Advocate Commissioner. Under such circumstances, the facts in S. Paramsivam and Another v. Rukmani Amman and Another 1999 MLJ (Supp.) 416, Natarajan v. Natarajan and Another, (1999) 3 MLJ 338 , Murugesan v. Paramasivam and Others, 2007(5) CTC 867 and Subramaniam v. Mariappan, rep by his Power Agent Chinnasamy and Another, (2005) I MLJ 592 will not be applicable to the present facts of the case. 5. In fine, the Civil Revision Petition is dismissed before admission. No costs. Connected Miscellaneous Petition is closed. Without being carried away by any of the observations made in this order, the learn first appellate Judge is directed to dispose of A.S. No.8 of 2005 within period of two months from the date of receipt of copy of this order after expediting the work of the Advocate Commissioner appointed under the order in I.A. No.17 of 2007. Revision dismissed.