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Madras High Court · body

2016 DIGILAW 1356 (MAD)

R. Banumathi v. K. Shanmugam

2016-03-30

V.M.VELUMANI

body2016
ORDER : This Civil Revision Petition has been filed against the fair and decretal order, dated 06.09.2010, made in I.A.No.604 of 2010 in O.S.No.276 of 2010 on the file of the learned District Munsif, Karur. 2. The petitioners are the defendants and the respondents are the plaintiffs. The respondents filed suit in O.S.No.276 of 2010, to declare that they have the easementary rights to periodical proper maintenance such as white washing, plastering and repairing the outer side of the western side wall of the suit properties and injunction restraining the petitioners from interfering with the rights of the respondents for periodical maintenance of western wall. 3. The respondents filed an application for appointment of an Advocate Commissioner. The Advocate Commissioner was appointed and he filed his report. The petitioners filed I.A.No.604 of 2010 for re-issue of warrant on the ground that the respondents/plaintiffs encroached their portion of the suit property and constructed compound wall and therefore warrant has to be reissued to the Advocate Commissioner, to measure the property of the petitioners and respondents and fresh report to be filed. The respondents denied the allegation that they have encroached the property of the petitioners. Earlier the first petitioner filed O.S.No. 226 of 1997, for permanent injunction against the respondents. In the said suit also the Advocate Commissioner was appointed and report was filed. The said suit was subsequently dismissed for default. In the present suit also an Advocate Commissioner was appointed, and he inspected the suit property and filed his report. The learned Judge considered the fact that in the earlier suit in O.S.No.226 of 1997 an Advocate Commissioner was appointed and he measured the property in question with the help of the surveyor and filed his report and the petitioners have not stated that the respondents encroached, after filing of report by the Advocate Commissioner, and dismissed the application. Against that order of dismissal, the present Civil Revision Petition has been filed. 4. The learned counsel for the petitioners contended that the respondents constructed compound wall in the suit property, after the Advocate Commissioner measured the suit property and filed his report. The learned Judge failed to consider these facts. The case of the petitioners is that the respondents encroached the property of the petitioners and constructed western wall. After encroaching and constructing the western wall, the respondents have filed the suit for relief of easementary rights. 5. The learned Judge failed to consider these facts. The case of the petitioners is that the respondents encroached the property of the petitioners and constructed western wall. After encroaching and constructing the western wall, the respondents have filed the suit for relief of easementary rights. 5. The learned counsel for the respondents submitted that on two occasions, the suit property have been inspected by the Advocate Commissioner and report was filed, after measuring the property. In view of the report of the Advocate Commissioner, in the present suit, the learned Judge has rightly dismissed the application for re-issue of warrant of Advocate Commissioner. 6. Heard the learned counsel on either side and perused the materials available on record. 7. The case of the respondents is that they have easementary rights for maintenance of their western side of the wall. According to the respondents, they have left 1½ feet on the western side of the property and constructed western boundary wall. The petitioners left six feet on eastern side of their property. The said passage is being used by the respondents for maintenance of outer side of their western boundary wall. On the other hand, it is the case of the petitioners that the respondents encroached their land and constructed the western boundary wall. 8. From the materials, it is seen that the respondents have not stated that the Advocate Commissioner noted down the passage between the western boundary wall of the respondents and eastern boundary wall of the petitioners. In the circumstances, to decide the issue in the suit, it is necessary for local inspection to ascertain the actual physical features of both the properties. The learned Judge failed to consider the fact that the Advocate Commissioner was appointed in the earlier suit in O.S.No.226 of 1997 filed by the first petitioner for declaration and permanent injunction. The property of the respondents was vacant land at that time and subsequently respondents put up the compound wall. In the circumstances, the impugned order of the learned Judge is liable to be set aside and accordingly is hereby set aside. The property of the respondents was vacant land at that time and subsequently respondents put up the compound wall. In the circumstances, the impugned order of the learned Judge is liable to be set aside and accordingly is hereby set aside. The learned Judge is directed to reissue of warrant of commission to the same Advocate Commissioner, if he is available and is willing to execute the warrant, otherwise the learned Judge is directed to appoint another Advocate Commissioner to inspect the property and to measure the same with the help of the surveyor and note down, as to whether there is any passage or drainage between the western wall and eastern side wall of the parties. 9. With the above direction, this Civil Revision Petition is allowed. No Costs. Consequently, connected miscellaneous petition is closed.