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2015 DIGILAW 2798 (MAD)

Nallamma Naidu v. Paul Pandian

2015-08-13

P.DEVADASS

body2015
ORDER : 1. This matter arises out of dismissal of I.A. No. 547 of 2014 in O.S. No. 24 of 2014, by the learned District Munsif, Theni. The respondents laid up the suit in O.S. No. 24 of 2014, in the Court of the District Munsif, Theni, seeking injunction with respect to the suit property, which has been more fully described in the suit schedule giving four boundaries and measurements. 2. The petitioner/5th defendant filed written statement resisting the suit. His plea is that the plaintiffs are entitled to lesser extent only, but their claim is more than five times of it and it is also extended to his property. 3. The Trial Court dismissed the petition in I.A. No. 547 of 2014 filed by the petitioner seeking appointment of Advocate/Commissioner as it is an extravagance. 4. The learned counsel for the petitioner would contend that the Trial Court adopted a pedantic approach. It has stated the correct principle, namely, no Advocate/ Commissioner to collect evidence, but wrongly applied it in this case. 5. The learned counsel for the petitioner has submitted that the problem arose in the western boundary wherein the petitioner's property has been shown as a boundary where from the respondents want to steal a march over the petitioner. 6. The respondents/plaintiffs, in spite of having been served and their names having been printed in the cause list, they have not appeared either in person or through a counsel. 7. I have anxiously considered the submissions of the learned counsel for the petitioner, perused the materials on record and the impugned order. 8. A closure analysis of the plaint pleadings and the averments in the written statement of the 5th defendant exhibits certain controversy with regard to physical feature. The petitioner as well as the respondents have quarrel in respect of their respective properties. The suit schedule contains specific boundaries with measurements. Petitioner comes with a version in his written statement as to the measurements and the boundaries of the suit property. He heavily relies on his sale deed, which has been executed in his favour by the first respondent's brother. Although the suit may be an injunction suit and the relief sought for may be a personal remedy, but it relates to an immovable property. He heavily relies on his sale deed, which has been executed in his favour by the first respondent's brother. Although the suit may be an injunction suit and the relief sought for may be a personal remedy, but it relates to an immovable property. The property with respect to which the relief of injunction sought for must be identified clearly with measurements and boundaries, otherwise it will lead to so many complications. 9. The controversy arises from the pleadings of the parties cannot be demonstrated before the Court by any amount of oral evidence. In such circumstances, it would be just and necessary for this Court to have the lie of the property, physical features and measurements with respect to their respective title deeds, that will enable the Trial Court to take a correct decision in this matter. In this view of the matter, the impugned order is unsustainable in law. 10. In the circumstances, ordered as under:- (i) The order and decreetal order, dated 12.02.2015 passed by the learned District Munsif, Theni in I.A. No. 547 of 2014 in O.S. No. 24 of 2014, are set aside. (ii) The learned District Munsif, Theni, will appoint an Advocate/Commissioner, who will visit the suit property, after due notice to both sides. (iii) The Advocate/Commissioner will note down the physical features more particularly the boundaries and measurements as given in the suit schedule, with reference to the title deeds of the respondents, he will also measure the petitioner's property with reference to the boundaries and also with reference to his title deeds and he will submit his report with plan to the Trial Court. (iv) The Trial Court will give reasonable time to both sides to file their written objections, if any. (v) The petitioner/5th defendant will pay the Advocate Commissioner's fee, as fixed by the Trial Court. Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.