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2013 DIGILAW 771 (MAD)

Balakrishnan v. Gopal

2013-02-05

D.HARIPARANTHAMAN

body2013
Judgment :- 1. The petitioners are the plaintiffs in O.S.No.509 of 2011 before the the District Munsif Court, Kulithalai. The respondent herein is the defendant in the aforesaid suit. 2. The averments in the plaint are that the first petitioner/first plaintiff is the owner of the properties in 'A' Schedule to the suit. The second petitioner/second plaintiff is the owner of the properties in 'B' Schedule to the suit. The third petitioner/third plaintiff is the owner of the properties in 'C' Schedule to the suit. 3. According to the petitioners/plaintiffs, a pathway with a width of 15 feet, as described in the 'D' Schedule to the suit, is the common pathway for the petitioners/plaintiffs, who reside in 'A', 'B' and 'C' Schedule properties respectively. 4. The petitioners/plaintiffs filed I.A.No.509 of 2011 in O.S.No.200 of 2010 for appointment of an Advocate Commissioner to find out the physical features, relating to 15 feet width of the common pathway, since the same was disputed by the respondent/ defendant in the written statement. 5. The respondent/defendant filed a counter affidavit in I.A.No.509 of 2011 in O.S.No.200 of 2010 stating that already the issue was decided by the learned District Munsif, Kulithalai, in O.S.No.311 of 1987 and in the said judgment, the learned District Munsif held that it was only 4 feet pathway and not 15 feet pathway. 6. Based on the afore-said averments, the Trial Court rejected the application in I.A.No.509 of 2011 in O.S.No.200 of 2010. This Revision petition is against the aforesaid order of the Trial Court. 7. The learned counsel for the petitioner submits that the order of the Trial Court in rejecting the interim application is solely based on the judgment in O.S.No.311 of 1987 and the same is based on the averments made by the respondent/defendant in the counter affidavit and the said judgment of the learned District Munsif, Kulithalai was not produced/marked before the learned District Munsif. He has referred to the impugned order and the same states that no document is produced before the Court. 8. I have considered the submissions of the learned counsel for the petitioner. The order in I.A.No.509 of 2011 in O.S.No.200 of 2010 is based on the earlier judgment of the learned District Munsif, Kulithalai, made in O.S.No.311 of 1987. He has referred to the impugned order and the same states that no document is produced before the Court. 8. I have considered the submissions of the learned counsel for the petitioner. The order in I.A.No.509 of 2011 in O.S.No.200 of 2010 is based on the earlier judgment of the learned District Munsif, Kulithalai, made in O.S.No.311 of 1987. Admittedly, the same was not produced and in the impugned order itself, it is stated that no document was produced by both the parties. 9. In these circumstances, I am inclined to interfere with the order, dated 12.12.2011, in I.A.No.509 of 2011 in O.S.No.200 of 2010. Accordingly, the impugned order is set aside and the matter is remanded back to the Trial Court to decide the matter afresh, after hearing both the parties. 10. In the result, the Civil Revision Petition is allowed with the above direction. No costs. Consequently, the connected miscellaneous petition is closed.