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2019 DIGILAW 1049 (MAD)

Sundaramurthy v. Theepanjal

2019-04-10

P.T.ASHA

body2019
JUDGMENT : P.T. ASHA, J. 1. The above Civil Revision Petition is filed challenging the order passed by the Principal District Munsif, Villupuram in rejecting the application filed by the plaintiff in I.A. No. 1103 of 2017 in O.S. No. 143 of 2015 for appointment of an Advocate Commissioner to make a local inspection of the suit property, to take measurement of the same with the help of a qualified surveyor and submit his report. Only reason that has been adduced by the revision petitioner in his petition is as follows: “TAMIL” 2. The said application has been objected by the respondent/defendant stating that the same is nothing but an attempt to drag on the proceedings and collect evidence. The learned Principal District Munsif, Villupuram by his order dated 20.10.2017, was pleased to dismiss the said application on the ground that it is for the parties to the proceedings to prove their case and not use the Advocate Commissioner to collect the evidence to prove possession. 3. Challenging the said order the plaintiff/revision petitioner is before this Court. Heard Mr. D. Ajith Kumar, learned counsel for the plaintiff/revision petitioner. He would contend that the appointment of an Advocate Commissioner would reduce the scope of evidence to be let in and the fact that there is a dispute with reference to the property and the Advocate Commissioner's report would help the Court. In support of his contentions, he had relied upon the Judgments in Sironmani Nadar vs. Lakshmana Nadar, M.A.Y. Peer Mohamed Abba and Another vs. S. Sahul Hameed and Others. 4. In the first Judgment which arise from out of the suit for declaration and permanent injunction, the Advocate Commissioner was appointed, since the defendant had disputed the very measurements of boundaries and physical features of the suit property and therefore in order to bring about the clarity with reference to the above the Court had allowed the application for appointment of an Advocate Commissioner. 5. 5. In the Judgment in M.A.Y. Peer Mohamed Abba and Another vs. S. Sahul Hameed and Others, the learned Judge has observed that the appointment of an Advocate Commissioner would help to locate the properties of the parties concerned, which in my respectful opinion is totally contrary to the Judgments of the Honourable Supreme Court which clearly says that an Advocate Commissioner cannot be used to find out the possession of parties which the parties have to prove by independent evidence. 6. The counsel for the respondent would argue that there is no dispute with reference to the possession of property and no reasons, whatsoever has been given by the plaintiff for appointment of an Advocate Commissioner. 7. Heard the counsels and perused the papers. The defense to the suit is that the suit property does not belong to the revision petitioner and the vendor of the revision petitioner who sold the property had no title to the property. Therefore, there is no defense with reference to the identity of the property, further such a statement is not stated in the petition which is filed in support of the application for appointment of an Advocate Commissioner. 8. The affidavit filed in support of the same states that the Advocate Commissioner should be appointed for measuring the property along with the surveyor together with the revenue documents and submit the report. Therefore, no reasons whatsoever has been shown by the revision petitioner for appointment of an Advocate Commissioner and the Trial Court has rightly dismissed the said application. The order does not deserve any reconsideration. 9. The Civil Revision Petition is dismissed. There shall be no order as to costs. Consequently, connected Civil Miscellaneous Petition is also closed.