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2018 DIGILAW 4554 (MAD)

Muthusamy v. Dinesh Aravinth

2018-12-19

ABDUL QUDDHOSE

body2018
JUDGMENT : 1. The instant revision has been filed challenging the order dated 13.02.2014 passed by the learned District Munsif Court, Gobichettipalayam in I.A.No.903 of 2013 in I.A.No.113 of 2005 in O.S.No.705 of 2004 on the file of the. Brief facts leading to the filing of the revision : 2. The petitioner is the defendant and the respondents are the plaintiffs in the suit O.S.No.705 of 2004. The suit was filed by the respondents for mandatory injunction and for permanent injunction in respect of the suit schedule property. The petitioners are the neighbours to the suit schedule property which is owned by the respondents. There arose boundary disputes between the petitioner and the respondents, which led to the filing of the suit by the respondents against the petitioner. During pendency of the suit, I.A.No.113 of 2005 was filed by the respondents/plaintiffs seeking for an appointment of Advocate Commissioner to inspect the suit schedule property and for filing a report with the help of superimposition map. The Trial Court appointed an Advocate Commissioner in I.A.No.113 of 2005 and the Advocate Commissioner has also filed his interim report which was objected by the petitioner. Thereafter, a final report was also filed by the Advocate Commissioner wherein he has stated that it is difficult to take measurements, due to the physical features of the suit schedule property. The relevant extract of the commissioner report dated 31.01.2012 is detailed below: “TAMIL” 3. The petitioner has also filed his objection to the final report on 13.01.2012 filed by the Advocate Commissioner. Recording the statements made by the Advocate Commissioner, I.A.No.113 of 2005 was closed by the Trial Court on 14.08.2012. Thereafter, the petitioner who is the defendant in the suit filed I.A. No.930 of 2013 to reopen I.A.No.113 of 2005 on the ground that the Advocate Commissioner appointed by the Trial Court in I.A.No.113 of 2005 did not execute the Advocate Commissioner’s warrant properly and superimposition measurement was not taken by the Advocate Commissioner. A Counter was also filed by the respondents/plaintiffs in I.A.No.930 of 2013. By order dated 13.02.2014 in 930 of 2013, the Trial Court dismissed the application filed by the petitioner. 4. Aggrieved by the order of dismissal of I.A.No.930 of 2013, the instant revision has been filed. 5. Heard, Mr. N. Manokaran, learned counsel for the petitioner and Mr. Naveen Kumar Murthi, learned counsel for the first respondent. 6. By order dated 13.02.2014 in 930 of 2013, the Trial Court dismissed the application filed by the petitioner. 4. Aggrieved by the order of dismissal of I.A.No.930 of 2013, the instant revision has been filed. 5. Heard, Mr. N. Manokaran, learned counsel for the petitioner and Mr. Naveen Kumar Murthi, learned counsel for the first respondent. 6. This Court has perused and examined the impugned order. I.A.No.930 of 2013 has been filed by the Petitioner/defendant in the suit. The suit was filed by the respondents against the defendant for mandatory injunction and for permanent injunction in respect of the suit schedule property, as there were boundary disputes between the respondents and the petitioner. Originally, the Trial Court had appointed an Advocate Commissioner to note down the physical features and take measurements of the suit schedule property, at the instance of the respondents/plaintiffs in I.A.No.113 of 2005. 7. According to the petitioner/defendant, the commissioner who was appointed earlier did not properly execute the warrant of commissioner issued to him by not taking measurements properly with the assistance of superimposition map. In fact, objections were also filed by the petitioner to the Advocate Commissioner’s report filed by the Advocate Commissioner in I.A.No.113 of 2005. The trial Court has considered the objections and only thereafter, closed I.A.No.113 of 2005 by its order dated 13.02.2014. 8. Despite closure of I.A.No.113 of 2005, the petitioner has come forward with another application namely I.A.No.930 of 2003 to reopen I.A.No.113 of 2005 which was closed after considering the objections raised by the petitioner to the Advocate Commissioner’s report. Having duly considered the objections raised by the petitioner earlier, the petitioner has once again come forward with another application namely I.A.No.903 of 2013 to reopen I.A.No.113 of 2005 in which an Advocate Commissioner was appointed by the Trial Court and he had also filed his report after taking measurements of the suit schedule property with the assistance of a surveyor. The Trial Court has dismissed I.A.No.930 of 2013 on the ground that (a) Advocate Commissioner has filed his report stating that it is not possible to take measurements based on the superimposition sketch. (b) Since it was not possible to take measurements based on superimposition sketch, the measurements were taken by the Advocate Commissioner only in the presence of the petitioner and the respondents. 9. (b) Since it was not possible to take measurements based on superimposition sketch, the measurements were taken by the Advocate Commissioner only in the presence of the petitioner and the respondents. 9. This Court is in agreement with the findings of the Trial Court and does not find any infirmity in the said order. Further, the respondents have filed this suit for mandatory injunction and for permanent injunction. It is for the respondents/plaintiffs to establish their case before the Trial Court, through oral and documentary evidence. 10. For the aforementioned reasons, there is no merit in the instant revision. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Due to the long pendency of the suit, this Court directs the Trial Court to dispose of the suit within a period of four months from the date of receipt of a copy of this Order.