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2014 DIGILAW 1242 (MAD)

Muthuswami Udayar v. Muthuswami Udayar

2014-06-10

R.KARUPPIAH

body2014
JUDGMENT 1. The Revision Petitioner who is the first appellant in A.S.No.8 of 2001 on the file of Sub Court, Ariyalur has filed this revision petition against the dismissal order passed in I.A.No.326 of 2004 by the First Appellate Court. 2. For the sake of convenience, the petitioner in I.A.No.326 of 2004 is referred as the revision petitioner and the respondents are referred as respondents hereafter. 3. The first respondent herein filed a suit in O.S.No.23 of 1999 for declaration and permanent injunction. The Trial Court has decreed the above said suit as prayed for the first respondent herein. Aggrieved by the above said decree and judgment passed by the Trial Court, the revision petitioner and the respondents 2 and 3, who are defendants 1 to 3 in the original suit preferred first appeal in A.S.No.8 of 2001 and it is pending. 4. During the pendency of the above said first appeal, the revision petitioner, who is the first defendant / first appellant in first appeal filed a petition in I.A.No.326 of 2004 under Order XXVI Rule 9 and Section 151 of code of Civil Procedure to re-issue the warrant to the Commissioner with a direction to measure the suit property with a help of a surveyor and to file a report and plan. In the above said affidavit, the revision petitioner has stated that during the pendency of the suit before the Trial Court, the Trial Court has appointed Commissioner to measure the suit property, accordingly the Commissioner filed a report and plan. But the Commissioner failed to fix the boundary of the revision petitioner's property and the street. Further it is stated that immediately after filing the Commissioner's Report and plan the Revision Petitioner has filed an objection. But without considering the same, the Trial Court has decreed the suit as prayed for by the first respondent herein. In the above said circumstances, the revision petitioner filed a petition to re-issue the warrant to the Commissioner before the First Appellate Court to measure the property with a help of a surveyor and file a report and plan. 5. The first respondent filed a detailed counter, in which he has specifically denied the contentions of the revision petitioner stated in the affidavit. It is further stated that the first respondent filed the suit for declaration and injunction before the Trial Court. 5. The first respondent filed a detailed counter, in which he has specifically denied the contentions of the revision petitioner stated in the affidavit. It is further stated that the first respondent filed the suit for declaration and injunction before the Trial Court. Before the trial Court, after examined the witnesses on the side of the first respondent / plaintiff's, in order to delay the proceedings, the revision petitioners and the respondents 2 and 3 who are defendants 1 to 3 in the suit filed a petition to appoint an Commissioner. The Trial Court appointed an Advocate Commissioner and directed to visit the suit property in the presence of all the parties in the suit and also their counsels and measure the property and note down the physical features and file report and plan. Accordingly, the Advocate Commissioner inspected the suit property in the presence of parties and counsels and filed detailed report and plan before the Trial Court. On the side of the revision petitioner, examined the above said advocate Commissioner as a witness and the revision petitioner also examined other witnesses and then the Trial Court has discussed the entire oral and document evidence adduced on either side and finally decreed the suit as prayed for by the first respondent. It is also averred in the counter that the Revision Petitioner falsely claimed as if the suit property is a lane. Further the revision petitioner has not taken any steps to re-issue the warrant to the Advocate Commissioner before the Trial Court, in spite of sufficient time given for the revision petitioner. Further, the revision petitioner has not filed any petition to re-issue the warrant immediately after filing the first appeal also. Only after posting the first appeal for hearing, petition for re-issue commissioner warrant is filed only to prolong the proceedings and absolutely no merits in the petition and therefore, prayed for dismissal in the above said petition. 6. The First Appellate Court, after considering the both sides contentions, dismissed the above said petition filed by the revision petitioners in I.A.No.326 of 2004. Aggrieved by the aforesaid dismissal order of the first Appellate Court, the revision petitioner has filed this revision. 7. Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the first respondent. 8. Aggrieved by the aforesaid dismissal order of the first Appellate Court, the revision petitioner has filed this revision. 7. Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the first respondent. 8. Learned counsel appearing for the revision petitioner submitted that it is essential to fix the northern boundary, so as to fix the southern limit of the revision petitioners property. But the Commissioner appointed before the Trial Court, did not fix the northern boundary of the suit property. The Trial Court has failed to consider the objection to the Commissioner report filed by the revision petitioner and therefore, learned counsel prayed to set aside dismissal order of the First Appellate Court and to direct the first Appellate Court to re-issue the Commissioner warrant to measure the suit property with the help of a surveyor and to submit the report and plan. 9. Per contra, learned counsel appearing for the first respondent / plaintiff would submit that the revision petitioner and the respondents 2 and 3, who are the defendants in original suit filed a petition for appointment of an Advocate Commissioner to measure the property and note down the physical feature, long after filing of the written statement and also after first respondent / plaintiff's side evidence was over. Even though the first respondent objected above said petition, the Trial Court has allowed the above said petition and appointed of an Advocate Commissioner. Accordingly the Advocate Commissioner filed the detailed report and plan. He further pointed out that on the side of the revision petitioner and the second and third respondents side, the above said Advocate Commissioner was examined as PW-4 and clarified the above said report and plan filed by the Commissioner and on the side of the first respondent / plaintiff has not at all cross examined the above said witness. The learned counsel further submitted that only after considering the oral and documentary evidence adduced on either side including the Advocate Commissioner's report and plan, the Trial Court has correctly decreed the suit as prayed for by the first respondent/plaintiff and therefore, no need to re-issue the Commissioner Warrant at the time of hearing in the first appeal stage. 10. The learned counsel further submitted that only after considering the oral and documentary evidence adduced on either side including the Advocate Commissioner's report and plan, the Trial Court has correctly decreed the suit as prayed for by the first respondent/plaintiff and therefore, no need to re-issue the Commissioner Warrant at the time of hearing in the first appeal stage. 10. As rightly pointed out by the learned counsel appearing for the first respondent, the revision petitioner has not taken any steps to re-issue the warrant before the Trial Court even after filing the report and plan by the Advocate Commissioner or after examining the Commissioner as PW.4. No reason has been assigned in the affidavit for not taking any such steps before the Trial Court. Further all the three defendants in the suit filed the first appeal and at the time of filing of the first appeal, they have not filed any petition to re-issue the warrant. At the time of arguments in the above said first appeal, the revision petitioner, who is one of the appellant / defendant in the suit, alone filed a petition to re-issue the warrant. The other appellants viz., respondents 2 and 3 have not filed any petition to re-issue the warrant. Further the reason for re-issue the Commissioner's warrant is not satisfied as rightly pointed out by the learned counsel appearing for the first respondent. The Advocate Commissioner appointed by the Trial Court filed a detailed report and plan and also clarified by examining him as a witness on the side of revision petitioner. Therefore, the petition filed for re-issue the Commissioner's warrant before the First Appellate Court is only to prolong the proceedings, as rightly pointed out by the learned counsel appearing for the first respondent. The original suit is of the year 1999. Therefore, considering the above said facts, this Court is of the opinion that the First Appellate Court has rightly dismissed the above said petition and there is no need to interfere with the above said finding of the first Appellate Court. 11. In the result, the revision petition is dismissed. No order as to costs.