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2013 DIGILAW 4284 (MAD)

A. Selvaperumal v. A. Vadivelu

2013-12-20

R.S.RAMANATHAN

body2013
JUDGMENT 1. The defendant in O.S. No. 487 of 2007 on the file of the VII Additional Judge, City Civil Court, Chennai, is the appellant. The respondent/plaintiff filed the suit for declaration of his title to the “A” schedule property and for recovery of “B” schedule property, which is part of “A” schedule property, from the defendant and also for mesne profits at the rate of Rs. 2,000/- per month from September, 2003 to October, 2006 and for other reliefs. 2. The suit was decreed holding that the plaintiff is entitled to the relief of declaration and recovery of possession and mesne profits can be ascertained only in a separate proceedings. Aggrieved by the same, the present appeal is filed. 3. Pursuant to the decree passed in O.S. No. 487 of 2007, the decree holder/respondent herein filed E.P. No. 1040 of 2009 to execute the decree in O.S. No. 487 of 2007 and in that petition, he filed an application in E.A. No. 553 of 2011 to appoint an advocate commissioner to identify the suit property with reference to the sale deed in favour of the plaintiff and the layout attached with the sale deed. The advocate commissioner submitted a report stating that the property cannot be identified as per the title deed of the plaintiff and therefore, the plaintiff/decree holder filed another application in E.A. No. 3411 of 2011 for appointing another Advocate Commissioner to identify the suit property with reference to the sale deed in favour of the plaintiff and the lay out, which has been attached with the sale deed. That the application was allowed and aggrieved by the same, the judgment debtor filed C.R.P. No. 4981 of 2011. Both the appeal and the Civil Revision Petition were head together. 4. The case of the respondent/plaintiff in the appeal as well as in the revision is as follows: The plaintiff purchased the suit property on 17.9.1976 under a registered sale deed and a layout plan of the property is attached to the sale deed. He purchased only Plot Nos.1 and 2 at Sri Ganesh Nagar, Velacherry, Madras and altogether, he is entitled to 60 ft.East - West and 80 ft. He purchased only Plot Nos.1 and 2 at Sri Ganesh Nagar, Velacherry, Madras and altogether, he is entitled to 60 ft.East - West and 80 ft. North-South and the total extent of the property is 4,800 sq.ft., which is described as “A” schedule property and patta was granted in Patta No. 9532 in favour of the plaintiff and after purchase, he got possession of the property. In 1995, the defendant approached the plaintiff and “B” schedule property was given to the defendant and in that, the defendant erected a hut measuring 100 sq.ft. and agreed to pay a rent of Rs. 10/- per month and thereafter, the defendant failed to pay the rent. Therefore, a notice was sent to the defendant terminating the tenancy and the defendant sent a reply containing untenable allegation and therefore, the plaintiff filed Ejectment Suit No. 4 of 1999 on the file of the Court of Small Causes, Chennai, and that suit was decreed and the appeal filed by the defendant in Ejectment Appeal No. 6 of 2003, was allowed on the ground that the title of the suit property was disputed by the defendant and therefore, the plaintiff was advised to file a suit for declaration of his title. Therefore, the suit was filed by the plaintiff for declaration of title and for recovery of possession of “B” schedule property. It is also stated that the defendant is attempting to claim right over the suit property on the basis of a sale deed dated 9.11.1973. 5. The defendant filed a statement in the suit contending that, originally, the property in larger extent belonged to one R. Shanmugam and he appointed one Power Agent, Krishnamurthi and the total extent of the property owned by R. Shanmugam was 2.10 acres in Survey No. 257 and the other extent of 2.10 acres in Survey No. 257 was owned by one Dandapani. R. Shanmugam executed Power of Attorney in favour of Krishnamurthi on 5.11.1973 and representing the owner, R. Shanmugam, the power agent, executed a sale deed in respect of Plot Nos. 24 and 25 in favour of Muniammal and her son, Kuppan and, in turn, they sold the property under a registered sale deed dated 26.3.1983 in favour of the defendant. R. Shanmugam executed Power of Attorney in favour of Krishnamurthi on 5.11.1973 and representing the owner, R. Shanmugam, the power agent, executed a sale deed in respect of Plot Nos. 24 and 25 in favour of Muniammal and her son, Kuppan and, in turn, they sold the property under a registered sale deed dated 26.3.1983 in favour of the defendant. The property purchased by Muniammal and her son, and later sold to the defendant is the suit property and the defendant was also given patta in respect of the suit property in the year 1984. The defendant was never in possession of the suit property as a tenant from the plaintiff and the defendant has put up a permanent structure in the suit property in 1984 and obtained electricity connection in the year 1988. In the Ejectment Appeal also, it was held that the plaintiff has to prove his title to the suit property and without proving title, the plaintiff is not entitled to the relief of declaration and the plaintiff is not at all owner of the suit property and the property purchased by him situate elsewhere in Survey No. 257 and therefore, the plaintiff cannot claim any declaration of title in respect of the suit property and for possession of “B” schedule property. 6. On the basis of the above pleadings, the following issues were framed: (i) Whether the plaintiff is entitled to the declaration in respect of “A” schedule property as owner? (ii) Whether the plaintiff is entitled for recovery of possession of “B” schedule property? (iii) Whether the plaintiff is entitled to the interim relief of mesne profits? (iv) Whether the contention of the defendant that the suit is an abuse of process of Court is correct? 7. On the side of the plaintiff, he examined himself as PW.1 and marked 7 documents. On the side of the defendant, the defendant examined himself as DW.1 and marked 42 documents. The Trial Court tried issues 1, 2 and 4 and held that the defendant/appellant purchased Plot Nos.24 and 25 under Exs.B2 and B9, and Exs.B1 to B.42 are in relation to Plot Nos.24 and 25, and the suit properties are Plot Nos.1 and 2, Ganesh Nagar and therefore, Exs.B1 to B.42 cannot be related to the suit properties. 8. The Trial Court tried issues 1, 2 and 4 and held that the defendant/appellant purchased Plot Nos.24 and 25 under Exs.B2 and B9, and Exs.B1 to B.42 are in relation to Plot Nos.24 and 25, and the suit properties are Plot Nos.1 and 2, Ganesh Nagar and therefore, Exs.B1 to B.42 cannot be related to the suit properties. 8. The Trial Court held that under Ex.A.1, the plaintiff purchased the suit property, he was given patta in respect of the suit property and the property purchased by the plaintiff and the properties purchased by the defendant are two different properties. The plaintiff purchased the suit property as per the approved lay out in Ex.A.2 and the property described in the plaint corresponds with the property described in the sale deed and approved layout plan and therefore, the plaintiff is entitled to the decree of declaration of “A’ Schedule property and “B” schedule property is part of “A” schedule property and as per Ex.A.7, “B” schedule property was taken delivery by the defendant from the plaintiff after the Ejectment Appeal was allowed in his favour and therefore, the defendant has to deliver vacant possession of “B” schedule property and decreed the suit. 9. It is submitted by the learned counsel for the appellant/defendant that the Trial Court without properly appreciating the report of the commissioner appointed by this Court in C.R.P. No. 4981 of 2011 and the patta in favour of the plaintiff given in respect of the property purchased by him under Ex.A.1, erred in holding that the suit property belonged to the plaintiff and therefore, he is entitled to the relief of declaration and he is entitled to get possession of “B” schedule property. According to him, the plaintiff purchased the property as per Ex.A.1 sale deed, Ex.A.2 approved lay out plan, and plot Nos.1 and 2 were sold to him. According to him, the plaintiff purchased the property as per Ex.A.1 sale deed, Ex.A.2 approved lay out plan, and plot Nos.1 and 2 were sold to him. The plaintiff also admitted that he applied for patta in respect of the property purchased by him and after enquiry by the Tahsildar, he was given patta No. 9532 and the property purchased by him is shown to be in Survey No. 257/39 as per Ex.A.4 patta, and admittedly, the disputed property is situate in Survey No. 257/17 as per the report of the Tahsildar and also as per the report of the Advocate Commissioner appointed in the revision petition, and therefore, the plaintiff cannot claim any right to the suit property under Exs.A.1 and A.2. He also submitted that the Trial Court was carried away by the fact that under Exs.A.1 and A.2, the plaintiff purchased Plot Nos.1 and 2 and in the plaint also, he claimed Plot Nos.1 and 2, mentioning the same boundaries as found in Ex.A.1 and therefore, the plaintiff proved title and the appellant/defendant purchased Plot Nos.24 and 25 under Ex.B.9 and his predecessor in title purchased the same property under Ex.B.2 and therefore, the defendant can claim title only in respect of Plot Nos.24 and 25 and the defendant cannot claim title to Plot Nos.1 and 2 and on that basis decreed the suit. He also contended that though description of the property in Ex.A.1 and the description of the property in the plaint are one and the same, on that basis, the plaintiff cannot claim that he purchased the suit property. He also submitted that even according to the plaintiff, he purchased the property having 60 ft.East-West and 80 ft. North-South and the measurement of the disputed property as per the Commissioner appointed by this Court in the Revision is only 38 feet East – West and 53 ft. North – South and the plaintiff is not claiming any right on the Eastern property and had he purchased 60 feet East -West under Ex.A.1, he is entitled to 40 ft further on the Eastern side of the disputed property. North – South and the plaintiff is not claiming any right on the Eastern property and had he purchased 60 feet East -West under Ex.A.1, he is entitled to 40 ft further on the Eastern side of the disputed property. As per the Commissioner’s plan, the northern boundary of the suit property is Plot No. 24 and as per Ex.A.1 and the plaint allegation, the northern boundary is Plot Nos.23 and 24 and there is no reference to Plot No. 23 in the commissioner’s plan and the property claimed by both parties is situate in Survey No. 257/17 and it is in T.S. No. 6 and 7, and as per the revenue records, T.S. No. 6 is in the name of the appellant/defendant and it relates to Survey No. 257/17 Part and as per Ex.B.10, the patta in respect of the property produced by the defendant is given to Survey No. 257/17. Therefore, the suit property proved to be the property purchased by the defendant and this aspect was not properly appreciated by the Court below. He also submitted that when the predecessor in title, namely, Muniammal, purchased the suit property under Ex.B.2, there was no lay out and when the plaintiff purchased the property, lay out was approved, and therefore, it cannot be contended that Plot Nos.24 and 25 were purchased by the defendant and his predecessor in title, which is situate elsewhere and therefore, the appellant cannot claim any right in the suit property. He also submitted that under Ex.A.6, equivalent to Ex.B.2, the defendant’s predecessor in title purchased Plot Nos.24 and 25 bounded on the North by Plot No. 26, South by Dry land, East by Plot Nos.32 and 33 and West by proposed 20 ft. road, measuring on the North 54 ft, South 54 ft, East 76ft. and West 81 ft with an total extent of 3,739 sq.ft. At the time of his purchase, there was no road formed and as per the commissioner’s plan, there is a 40 ft. road on the southern road and 24ft. road on the western side and therefore, some extent of property must have been taken from the property purchased by him and therefore, the extent of the property now available corresponds with the extent of land purchased under Ex.A.6 equivalent to Ex.B.3 and that would also prove that the disputed property belonged to the defendant. road on the western side and therefore, some extent of property must have been taken from the property purchased by him and therefore, the extent of the property now available corresponds with the extent of land purchased under Ex.A.6 equivalent to Ex.B.3 and that would also prove that the disputed property belonged to the defendant. He, therefore, submitted that the Judgment and decree of the Trial Court is to be set aside and the suit has to be dismissed. 10. On the other hand, the learned counsel for the respondent/plaintiff submitted that admittedly, the respondent/plaintiff purchased Plot Nos.1 and 2 under Ex.A.1 sale deed and Ex.A.2, the approved layout plan, which was also attached with Ex.A.1 Sale Deed. Under Exs.A.1 and A.2, the plaintiff purchased Plot Nos.1 and 2 and the suit was filed in respect of Plot Nos.1 and 2 and therefore, the plaintiff proved title to the suit property. He further submitted that even according to the defendant/appellant, he purchased Plot Nos.24 and 25 and his predecessor in title also purchased Plot Nos.24 and 25 and therefore, he cannot claim any right over the suit property purchased by the plaintiff. He also submitted that the appellant/defendant purchased the property with the plan annexed with the sale deed, and the sale deed of the predecessor in title of the plaintiff alone was marked as Ex.B.3 and unapproved lay out of Plot Nos.24 and 25 was not produced and even under Ex.B.9, sale deed, in faovur of the appellant/defendant, plan was not produced to identify the property purchased by the appellant/defendant and therefore, without producing any plan, the appellant/defendant cannot claim that the suit property was purchased by him. He, therefore, submitted that having purchased Plot Nos.24 and 25 and have different boundaries as per the sale deed, the appellant cannot claim any title to the suit property. He, therefore, submitted that the plaintiff proved title to the suit property and merely because, revenue officials were not able to locate the property, and correlated the property purchased by the plaintiff to Survey No. 257/39, the title of the plaintiff cannot be lost and considering the layout plan and the sale deed, the plaintiff is entitled to the relief of declaration and that was properly appreciated by the Court below. He also submitted that commissioners appointed in this case have not properly identified the suit property with reference to the sub-division. He also submitted that commissioners appointed in this case have not properly identified the suit property with reference to the sub-division. Therefore, the appellant cannot take advantage of the report of the advocate commissioner and then contend that the suit property was purchased by him. 11. On the above submissions, the following points for consideration arise in this appeal: (i) whether the plaintiff proved that he purchased the suit property? (ii) whether the property purchased by the defendant is the suit property? (iii) whether both the plaintiff and the defendant purchased the very same property, which is the suit property? 12. As stated supra, in C.R.P. No. 4981 of 2011, an advocate commissioner appointed was directed to find out the following: (a) To measure the suit property with the details of its total extent, length, width and its facing; (b) To note down the physical features of the suit property; (c) To point out the boundaries of the suit property; and (d) To co-relate the features above referred with the original sale deed of the respondent and with the sale deed of the appellant. 13. The Commissioner with the help of a surveyor prepared 3 Plans and Plan No. 1 is as per the lie of the suit property; Plan No. 2 is the suit property as per the drawing in Town Survey Map and Plan No. 3 is also as per revenue records. All the Plans are drawn up by the Sub-Inspector of Survey and L.R., Division IV, Mambalam - Guindy Taluk, Chennai. Tahsildar’s report is also enclosed with the commissioner’s report and as per the Tahsildar’s report, the property which is in dispute lies in Town Survey Nos.6 and 7 and old survey No. 257/17. The Tahsildar also stated in his report that as per the revenue records, Survey No. 257 was sub-divided to 257/37 and there is no entry as Survey No. 257/39. As per the measurement of the disputed property, the total extent is 2700 sq.ft. having 12.8 metres on the North Side - East West; and 12.6 metres on the South side - East West; and the North – South measurement is 17.5 metres on the Western side and 17.6 metres on the Eastern side. As per the measurement of the disputed property, the total extent is 2700 sq.ft. having 12.8 metres on the North Side - East West; and 12.6 metres on the South side - East West; and the North – South measurement is 17.5 metres on the Western side and 17.6 metres on the Eastern side. Therefore, as per Survey Plan No. 1, East - West measurement of the property in Survey No. 257/17, which is claimed to be the suit property by both parties, is 12.6 metres equivalent to 38 feet. Similarly, in the North South, the measurement is 53 feet. 14. The Trial Court held that the property purchased by the appellant and the property purchased by the respondent are two different properties and the disputed property was the property purchased by the respondent/plaintiff and therefore, the respondent is entitled to the decree. 15. In this appeal, both the parties claim right over the same property. It is the case of the appellant that the property purchased under Ex.A.6 by her predecessor in title and subsequently purchased by him is the suit property though different Plot Numbers were given in their sale deed. According to the respondent/plaintiff, the property purchased by him under Exs.A.1 and A.2 is the suit property and therefore, he is entitled to declaration. 16. Therefore, we will have to find out whether the property purchased by the appellant/defendant is a different property as held by the Trial court or both the parties purchased the very same property, which is in dispute or whether the property in dispute was purchased only by the plaintiff and the defendant’s property is lying elsewhere. 17. If the property is purchased by the plaintiff and the defendant, are one and the same, then, the plaintiff cannot claim title as the defendant’s predecessor in title purchased the suit property even in the year 1973 and the plaintiff purchased the property in the year 1976. Therefore, having regard to Ex.A.6 dated 9.11.1973, the appellant’s predecessor in title was earlier in point of time than the plaintiff’s sale deed and therefore, the plaintiff is not entitled to the relief of declaration. On the other hand, if the property purchased by the plaintiff and the defendant are two different properties, then it has to be found out whether the suit property was purchased by the plaintiff or by the defendant. On the other hand, if the property purchased by the plaintiff and the defendant are two different properties, then it has to be found out whether the suit property was purchased by the plaintiff or by the defendant. If the suit property was purchased by the defendant’s predecessor in tile under Ex.A.6, then the plaintiff cannot claim any title and if the property purchased by the defendant’s predecessor in title was some other property than the suit property, then, the plaintiff is entitled to the decree. Therefore, it has to be ascertained whether the suit property was purchased by the plaintiff or appellant/defendant. 18. As per Exs.A.1 and A.2, Plot Nos.1 and 2 were purchased by the plaintiff with specific boundaries and extent, and the suit property also contains the same boundaries and extent, and therefore, the plaintiff claims that he is entitled to the relief of declaration. 19. Admittedly, when the plaintiff purchased the property, the entire property was laid out by the authorities and as per the approved lay out, Plot Nos.1 and 2 were purchased by the plaintiff. The defendant/appellant also contended that the very same suit property was purchased by his predecessor in title and by him and when they purchased the property, there was no approved lay out and therefore, merely because, different Plot Numbers were given in his predecessor’s sale deed Ex.A.6, it cannot be contended that the property purchased by his predecessor in title was not the suit property. According to the appellant, patta was given in his favour in respect of the property purchased by him and the patta sub-division number is 257/17 and as per the commissioner’s plan, who was appointed by this Court in the Revision, the suit property is situated in Survey No. 257/17 and as per the revenue records, the property in Survey No. 257/17 stands in the name of the appellant/defendant. Therefore, it is contended that the suit property was purchased by the appellant/defendant. 20. As stated supra, the plaintiff filed the suit for declaration stating that he purchased Plot Nos.1 and 2 having an extent of 80 ft. North - South and 60 ft. East – East, under Ex.A.1 and A.2, and the same property is described as “A” schedule property in the suit. As per the Commissioner’s plan, the suit property is having an extent of 38ft. East-West and 53ft. North - South and 60 ft. East – East, under Ex.A.1 and A.2, and the same property is described as “A” schedule property in the suit. As per the Commissioner’s plan, the suit property is having an extent of 38ft. East-West and 53ft. North-South, namely, 12.6 metres East – West and 17.6 Metres North – South. 21. Though the western, southern and northern boundary stated in Ex.A.1 corresponds with the boundaries given by the Commissioner, there is one lacunae on the side of the plaintiff in claiming the suit property as his property. According to me, under Ex.A.1, he purchased property having measurement of 60 feet East – West and 80 feet North – South. Now, the property which is in dispute is having measurement 38 feet East – West and 54 ft North-South. In that event, the plaintiff must own another 40 ft. on the eastern side as per his Ex.A.1 sale deed but the plaintiff did not claim any right over the property that is situated on the east of the suit property and he claims only right over the property which is identified by the advocate commissioner having measurement of 38 ft. east west and 54 ft. north – south. If the property identified by the commissioner is the property purchased by the plaintiff, then he is entitled to further 40 feet on the eastern side as per Ex.A.1 and he is not claiming any right on the property situated on the eastern side of the disputed property. Further, the plaintiff claimed that he was given patta in respect of the property purchased by him and as per the patta, the Survey Number is 257/39 and as per the Tahsildar report, the suit property is in Survey No. 257/17 and there is no correlation register in the revenue department regarding Survey No. 257/39. Therefore, when the plaintiff claims title based on Ex.A.1 claiming that he purchased the property measuring 60 ft East West and 80 ft. North South and also prayed for declaration that he is entitled to “A” scheduled property measuring 60 ft. North South and 80 ft East West, he must have proved the said existence of such property as claimed by him and described in “A” scheduled is available on the land that is the disputed property and he must be given declaration. North South and also prayed for declaration that he is entitled to “A” scheduled property measuring 60 ft. North South and 80 ft East West, he must have proved the said existence of such property as claimed by him and described in “A” scheduled is available on the land that is the disputed property and he must be given declaration. But, he has not claimed any right over eastern side of the property and his patta is also in respect of Survey No. 257/39. Considering these two aspects, a doubt is created whether the property purchased by the plaintiff under Ex.A.1 is the suit property. It is not the case of the plaintiff that the eastern property was already sold out by him or he is relinquishing his right in respect of the eastern property, which is under the occupation of the third parties and he is restricting his claim in respect of the disputed property. As per the plaint “A” schedule property, property is having an extent of 4800 sq.ft. and as per the measurement given by the Commissioner in respect of the disputed property, measurement is only 2,700 sq.ft. No explanation has been given by the plaintiff in respect of remaining 2,100 sq.ft. for which also he sought for declaration. He also claims that he claims that his property is in Survey No. 257/39 whereas revenue records shows that the disputed property is situate in new T.S. No. 6 and 7 and that is old Survey No. 257/17 and the predecessor in title were given the patta in respect of Survey No. 257/17 which corresponds with new T.S. No. 6 and 7. Further, the defendant purchased the property to an extent of 3,739 sq.ft. having East – West measurement 54 ft and North South measurement on the eastern side of 76 ft. and on the western side 81 ft. As per Ex.A.6 sale deed, the southern boundary of the property purchased by Muniammal, is dry land and western boundary is 20 ft proposed road. It is submitted by the learned counsel for the appellant that the defendant purchased the property as per the unproved lay out and therefore, it was given Plot Nos.24 and 25. As per Ex.A.6 sale deed, the southern boundary of the property purchased by Muniammal, is dry land and western boundary is 20 ft proposed road. It is submitted by the learned counsel for the appellant that the defendant purchased the property as per the unproved lay out and therefore, it was given Plot Nos.24 and 25. After approval of the lay out, some property must have been given Plot Nos.1 and 2 and while forming road on the southern side and western side, some extent might have been taken from the property purchased by him and that was the reason for reduction in extent and therefore, the suit property was the property purchased by the defendant and the patta also corresponds with the revenue records and according to me, the submission of the learned counsel for the appellant appears to be probable. In the case of the plaintiff, the boundaries are clear and he purchased the property after the layout was approved and therefore, there is no possibility of losing any extent by the plaintiff after his purchase. In such circumstances, the plaintiff has to explain about his claim with respect to remaining 2100 feet on the eastern side as the western boundary is the road. Therefore, there is no explanation in that regard an by the plaintiff and therefore, the case of the plaintiff is improbable and the case of the appellant is probable. 22. The report of the advocate commissioner and plans are perused. The advocate commissioner filed a memo seeking for additional remuneration and it is stated by him that he has approached the authorities more than 10 times for getting the plans. This Court has ordered initial remuneration of Rs. 20,000/- to the advocate commissioner and that was paid. Considering the nature of the work involved and the trouble taken by the commissioner in approaching the revenue officials several times to get the application, in my opinion, the commissioner is entitled to additional remuneration and the appellant/revision petitioner is directed to pay a sum of Rs. 15,000/- to the Commissioner as additional remuneration within two weeks from the date of receipt of a copy of this judgment. 23. 15,000/- to the Commissioner as additional remuneration within two weeks from the date of receipt of a copy of this judgment. 23. Having regard to the fact that the plaintiff filed the suit for declaration and he failed to explain the whereabouts of the remaining extent of the property purchased under Ex.A.1 and the property purchased under Ex.A.1 and the patta issued in favour of the plaintiff is in respect of Survey No. 257/39, whereas the suit property is having patta relating to Survey No. 257/17, in my opinion, the plaintiff has not proved his claim or right to the suit property. Though ordinarily patta will not confer title and it can only prove possession of the property and the party has to prove independently of his title, having regard to the facts of this case, in my opinion, issuance of patta plays important role in identifying the suit property and having regard to the fact that the plaintiff was given patta in respect of Survey No. 257/39 and the plaintiff is claiming an extent of 4800 sq.ft. and the suit property is having only 2,700 sq.ft and the plaintiff is also not able to explain about his claim with respect to remaining extent of property, I hold that the plaintiff cannot claim any right to the suit property and the property purchased by the plaintiff under Exs.A.1 and A.2 must lie in some other place. Hence, in my opinion, the plaintiff is not entitled to the relief of declaration and recovery of possession. The points are answered accordingly. The judgment and decree of the Trial Court are set aside and the Appeal is allowed. The connected Miscellaneous Petitions are closed. No order as to costs. 24. The Revision Petition was filed against the appointment of Advocate Commissioner in E.A. No. 3411 of 2011 in E.P. No. 1040 of 2009, which was filed by the plaintiff/decree holder to execute the decree passed in O.S. No. 487 of 2007 which is the subject matter of A.S. No. 943 of 2009. Advocate Commissioner was appointed in E.A. No. 553 of 2011 In E.P. No. 1040/2009. Advocate Commissioner was appointed in E.A. No. 553 of 2011 In E.P. No. 1040/2009. He also submitted a report stating that the property cannot be identified as per the title deed of the plaintiff and therefore, the plaintiff/decree holder filed another application in E.A. No. 3411 of 2011 for appointing another Advocate Commissioner to identify the suit property with reference to the sale deed and that was allowed and an Advocate Commissioner was appointed and aggrieved by the same, judgment debtor filed the present revision. In A.S. No. 943 of 2009, judgment and decree passed in O.S. No. 487 of 2007 was set aside and the Appeal was allowed. As the decree passed in O.S. No. 487 of 2007 was set aside, the revision also fails as the Execution Petition was filed only to execute the decree passed in O.S. No. 487 of 2007. After the decree was set aside, the Civil Revision Petition becomes infructuous and hence, it is dismissed. The connected Miscellaneous Petition is closed. No costs. Appeal allowed.