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2018 DIGILAW 1134 (MAD)

Natarajan v. Rajapandi

2018-03-20

S.RAMATHILAGAM

body2018
JUDGMENT : 1. This Civil Revision Petition has been preferred against the decretal order passed in I.A.No.726 of 2010 in O.S.No.11 of 2007 on the file of the District Munsif Court, Cheranmahadevi. 2. The brief case is that the suit in O.S.No.11 of 2007 has been filed by the plaintiff/respondent for the relief of permanent injunction and the suit was not posted for defendant's side evidence. At this stage, the defendant has filed this I.A.No.726 of 2010 for appointment of Advocate commissioner to inspect the petition schedule property and to file a report. 3. The learned counsel appearing for the respondent submitted that the petition schedule property is no way connected with the suit. Hence this petition is to be dismissed. 4. After hearing both sides and on perusal of records the trial Court has dismissed the I.A.No.726 of 2010. Against which the petitioner has preferred this Civil Revision Petition and attacked the order in following grounds. The first ground is that the trial court failed to consider the fact that according to the plaintiff, his property and the defendant properties are lying in the same survey number and petitioner's property is situating in the S.No.254/1B and the petitioner property is to the extent of 3 cents Northern side in the said Survey Number. The second ground is that the trial Court failed to see the claim of the plaintiff that the petitioner tried to construct a wall by encroaching the plaintiff's land and therefore it is necessary to appoint an advocate commissioner. 5. Heard both sides. The documents are perused. 6. I.A.No.726 of 2010 was filed by the defendant who has stated that he has purchased the property from one Sorna Rathi and the suit property lies in “TAMIL” Further, the petitioner has stated that as per the four boundaries mentioned in the sale deed he has constructed the basement. Whereas, the plaintiff has not taken any steps to prove that he is enjoying the property as available in the property (“TAMIL”). The sale in favour of the defendant out of 6 cents, 3 cents in northern side in S.No.254/1B (“TAMIL”) was not objected by the plaintiff. Hence, the petitioner/defendant has filed this petition for the appointment of Commissioner for the purpose of the Court to clearly identify the property i.e., that the suit property lies in 254/1B 3 cents in northern side (“TAMIL”). 7. Hence, the petitioner/defendant has filed this petition for the appointment of Commissioner for the purpose of the Court to clearly identify the property i.e., that the suit property lies in 254/1B 3 cents in northern side (“TAMIL”). 7. The respondent/plaintiff has filed a counter stating that the property mentioned in the petition is different and the property mentioned in the plaint is different one. 8. The trial Court after perusing the records has also observed that the petition schedule property differs from the suit schedule property. 9. The averment of the petitioner/ defendant in his petition is as follows: “TAMIL” On perusal of the plaint it is observed that the plaintiff has purchased the property from the power agent of Peter Nadar, one Thavasi Muthu in the year 2000 and in the year 2006, he proposed to construct shops in the said property and obtained permission from the panchayat and has also commenced the construction on 10.11.2006. At that time the defendant, who is the owner of the northern side property, tried to encroach the plaintiff's property for 2 feets. The plaintiff has also further stated that to ascertain his boundary the plaintiff has taken steps for measuring the property through the surveyor and the same was dropped on the objection made by the defendant. The plaintiff has also filed the certificate issued by the Surveyor. Hence it is for the plaintiff to prove that the defendant is attempting to encroach at the northern side of the property. 10. Further, it is observed that the plaintiff has also obtained permission from the Grama Panchayat. Hence, when the relief is sought by the plaintiff, the defendant who is the petitioner in this Civil Revision Petition need not take measures to appoint the Commissioner to inspect the suit property and to note down the physical features and measurements of the suit property. There is already a document that is Nila Alavayar Padam filed by the respondent/plaintiff before the trial Court. Further, it is observed that the suit is in the concluding stage and it is for the plaintiff to prove the case and belated application filed by this defendant is not one very much essential to decide the case and the same petition was rightly dismissed by the trial Court which does not require any consideration by this Court. 11. In the result, this Civil Revision Petition is dismissed. 11. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed.