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2017 DIGILAW 3485 (MAD)

G. Chellappan @ Neeravi Naicker v. C. Ayyanappan

2017-11-01

J.NISHA BANU

body2017
ORDER : This revision petition has been filed against the order and decree made in I.A.No.1203 of 2013 in O.S.No.300 of 2013 dated 12.03.2014 on the file of the Principal District Munsif Court, Srivilliputtur. 2. The revision petitioner is the plaintiff in O.S.No.300 of 2013 and the respondent is the defendant. The suit was filed for permanent injunction not to encroach or put up any construction over the suit schedule property. The defendant filed the written statement and the suit is pending. While so, the plaintiff filed I.A.No.1203 of 2013 for appointment of Advocate Commissioner to note down the physical features of the suit property with the help of surveyor. The Trial Court dismissed the said application. Challenging the said order, this revision petition has been filed. 3. Learned counsel for the petitioner submitted that the revision petitioner is having 2/3 share in the suit property, but the respondent claiming that he is the absolute owner of the entire suit property, started construction of compound wall around the suit property including the share of the plaintiff. Hence, the petitioner filed interlocutory application for appointment of Advocate Commissioner to measure the suit property with the help of surveyor. However, the Trial Court dismissed the application holding that the defendant himself admitted construction of compound wall and therefore, no commission is required which is perverse. 4. It is further contended that the revision petitioner has now filed an application for amending the prayer into mandatory injunction and if ultimately, the suit for mandatory injunction is decreed, the exact measurement of the construction made in the suit property is necessary, for which, appointment of Advocate Commissioner to note down the physical features with the help of surveyor is necessary. But, the Trial Court without considering the said aspect, erroneously dismissed the interlocutory application. Hence, he submitted that the impugned order is liable to be set aside. 5. But, the Trial Court without considering the said aspect, erroneously dismissed the interlocutory application. Hence, he submitted that the impugned order is liable to be set aside. 5. In support of his contention, learned counsel for the petitioner relied upon a decision of this Court in Anwar Batcha vs. S. Mahuedoom reported in 2014 (5) CTC 85 and submitted that as per Order 26, Rule 9 CPC, in any suit, in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a Commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. 6. Learned counsel for the respondent submitted that when the claim of the petitioner regarding 2/3 share over the suit property itself is disputed and to be decided in the suit, without deciding the same, commissioner cannot be appointed to note down the physical features and the Trial Court by a reasoned order has rightly dismissed the interlocutory application which does not call for interference by this Court. 7. Heard both sides. 8. It is the claim of the revision petitioner/plaintiff that he has 2/3 share and the respondent/defendant has 1/3 share in the suit schedule property and now the defendant is trying to put up construction in the common property. After his father, the petitioner claims that he is in possession of the suit property. Whereas, the defendant claims that after his father, he is in possession of the suit property by putting up a cattle shed and keeping garbage and in June 2013 itself, he has constructed a stone wall in the suit property and in possession of the same. 9. The Trial Court observed that whether the plaintiff and defendant are entitled to 2/3 and 1/3 shares respectively in the suit property, whether the suit property is a common property and whether the suit property is the property of the defendant and it is in his exclusive possession are to be decided in the suit. It is further observed that title and possession of the suit property are to be ascertained through the sale deeds and revenue documents, for which, appointment of commissioner to note down the physical features of the suit property is not necessary. 10. It is further observed that title and possession of the suit property are to be ascertained through the sale deeds and revenue documents, for which, appointment of commissioner to note down the physical features of the suit property is not necessary. 10. As rightly held by the Trial Court, whether the plaintiff and defendant are entitled to 2/3 and 1/3 shares respectively in the suit property or whether the suit property is a common property is to be decided in the suit. Therefore, it is for the plaintiff to prove his case by adducing oral and documentary evidence and he cannot get the Commissioner appointed so as to cull out evidence in his favour. Appointment of Commissioner would only lead to unnecessary dragging of the suit. Order 26 Rule 9 is not attracted in this case since construction over the suit property is not under dispute, but the title itself is under dispute. Hence, I do not find any infirmity or perversity in the order of the Trial Court and the same is confirmed. The Civil Revision Petition is dismissed accordingly. No costs. Consequently, connected miscellaneous petition is closed.