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2012 DIGILAW 3321 (MAD)

Chinnasalem Sengundar v. Murugesan

2012-07-27

V.DHANAPALAN

body2012
Judgment :- 1. In this Civil Revision Petition, petitioner called in question an order of the learned Subordinate Judge, Kallakurichi, made in I.A. No: 101 of 2012 in O.S. No: 10 of 1996 dated 01.03.2012. 2. The revision petitioner is the 3rd defendant in the suit which was filed for a preliminary decree of partition and for separate possession of plaintiffs 3/8th share in the suit schedule properties set out in Schedules A to C hereunder and also for a decree for mandatory injunction ordering the demolition of the superstructures put up by defendants 3 and 5 to 89 in the properties set out in Schedules B & C. There are 90 defendants in the suit. The 90th defendant had filed a written statement and contested the matter. The hearing of the suit had been proceeded with. After conclusion of the defendants' evidence, the suit has to be listed for arguments. At that stage, the revision petitioner herein made an application for appointment of an advocate commissioner to inspect the suit schedule properties to find out about the existence of any building, its nature and construction and measure the same with the help of a surveyor and file a report along with sketch before the trial Court. 3. The learned trial Judge, after consideration of the facts and circumstances pleaded by the parties, came to the following conclusion :- “ LANGUAGE ” Challenging the aforesaid order, petitioner is before this Court in this revision petition. 4. Mr. P. Valliappan learned counsel appearing for the revision petitioner, in his submissions, has consistently pleaded that the plaintiff has stated that the suit schedule properties are vacant lands and thus, the dispute relates to the existence of the buildings in the suit schedule properties and therefore, the appointment of an advocate commissioner was sought for by the revision petitioner to prove the existence and age of the buildings in the lands in question. According to him, the trial Court ought to have looked into the situation to consider the application filed under Order 26 Rule 9 C.P.C. 5. On the other hand, Mr.V. Manohar learned counsel appearing for the respondents would contend that the matter has been contested by the parties. According to him, the trial Court ought to have looked into the situation to consider the application filed under Order 26 Rule 9 C.P.C. 5. On the other hand, Mr.V. Manohar learned counsel appearing for the respondents would contend that the matter has been contested by the parties. The suit is for a preliminary decree of partition as well as separate possession and also for a mandatory injunction and, therefore, it is for the revision petitioner to make necessary application in an appropriate time. The learned counsel also submits that it is settled principle that in a suit for partition, a preliminary decree is passed first and thereafter, the plaintiff in the suit has to make an application for appointment of an advocate commissioner to measure the metes and bounds of the property to demarcate the respective shares of the parties and, therefore, there is no error in the order passed by the learned trial Judge in rejecting petitioner's application for appointment of adovcate commissioner at this stage. 6. Heard the learned counsel appearing for the parties and perused the records made available. The suit is of the year 1987. First it was filed before the Sub Court, Virudhachalam, and later it was transferred and re-numbered as O.S. No: 10 of 1996 in the Sub Court, Kallakurichi. Thus, the matter is pending for more than 25 years. It is seen from the records that an order came to be passed by this Court on 1.10.2010 earlier in C.R.P. (P.D.) No: 32 of 2010 directing the trial Court to dispose of the suit within three months. It is also evident from the records that the evidence on the side of defendants is almost over and that evidence on behalf of 90th defendant alone is pending and after that the suit has to be listed for arguments. At that stage, this petitioner has made an application for appointment of an Advocate Commissioner. 7. Law is well settled that in a suit for partition and separate possession and also for a mandatory injunction, after passing of a preliminary decree by the trial Court, the plaintiff has to make an application for appointment of an advocate commissioner to measure the property by metes and bounds and then demarcate the shares of the respective parties in line with the decree granted by the trial Court. Though it is alleged by the revision petitioner in his application that the plaintiff has pleaded in his plaint that the suit schedule properties are vacant lands and in order to show that buildings does exist in the properties, he is seeking for appointment of an advocate commissioner and the Trial Court has rightly held that even if there are buildings as alleged by the revision petitioner, that would not alter the nature of the suit, as the buildings which came into existence after the filing of the suit would be hit by "lis pendens". Moreover, when the trial Court came to the conclusion that this interlocutory application came to be filed by the revision petitioner at a belated stage, namely at the stage when the defendants' evidence is almost over and the suit has to be posted for arguments, with a view to protract the proceedings, and the view of the trial Court cannot be found fault with in view of the fact that the suit is pending for more than 25 years. The trial Court has correctly held that when the trial nearing conclusion, the present interlocutory application is filed which cannot be entertained. 8. In the result, finding no merit this Civil Revision Petition stands dismissed. Consequently, connected miscellaneous petitions are also dismissed. It is needless to state that the parties to the suit will have a remedy of contesting their respective points before the trial Court by way of presenting written arguments. There shall be no orders as to the costs.