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2022 DIGILAW 3394 (MAD)

Subbulakshmi (died) v. Kaliammal

2022-09-19

T.V.THAMILSELVI

body2022
JUDGMENT (Prayer: Civil Revision Petition is filed under Art. 227 of Constitution of India, praying to set aside the fair and final order passed in I.A.No. 1329 of 2015 in O.S.No.210 of 2013 dated 22.10.2016 on the file of the District Munsif of Gobichettipalayam.) 1. The Revision Petitioners herein are the defendants in the suit in O.S.No.210 of 2013 filed by the 1st respondent/plaintiff for the relief of permanent injunction and mandatory injunction with regard to the suit property as described in the plaint schedule. The 2nd defendant denied the plaintiff's claim. 2. During the pendency of suit proceedings, the plaintiff filed an application in I.A.No.1329 of 2015 to appoint an advocate commissioner to measure the property along with surveyor and to submit a report. The said application was contested by the defendants stating that already Commissioner was appointed in I.A.No. 889 of 2013 to note down the physical features of the property and the said Commissioner also visited the property and submitted his report. Thereafter, the defendants filed their written statement. During the pendency of the suit proceedings, the plaintiff filed the present application to appoint an advocate commissioner without eschewing the earlier commissioner's report. Hence, the 2nd defendant raised objection before the trial court. But, the trial court without considering his objections, allowed the application. 3. Challenging the said findings, the 2nd defendant preferred this Civil Revision Petition. The learned counsel for Revision Petitioner submitted that the court below failed to take note of the fact that already there is a Commissioner's report pending before the trial court in I.A.No. 889 of 2013, which was not eschewed by the trial court till date, without which, the second application was allowed. Hence, the order passed by the trial judge is erroneous one and liable to be set aside. 4. The learned counsel for 1st respondent/plaintiff submitted that in the suit property, defendants caused interference and encroached the property. Hence, she has filed a suit for the relief of permanent injunction and mandatory injunction to remove the encroachment. However, she has already filed an application in I.A.No.889 of 2013 to appoint an advocate commissioner and he also filed a report. In that report, there was some discrepancy. Hence, she has filed a suit for the relief of permanent injunction and mandatory injunction to remove the encroachment. However, she has already filed an application in I.A.No.889 of 2013 to appoint an advocate commissioner and he also filed a report. In that report, there was some discrepancy. Hence, both parties have raised objection and thereafter, the plaintiff filed an application with a new prayer to appoint an advocate commissioner to visit the property and to measure the property along with surveyor. That application was rightly considered by the trial court. 5. Heard and considered rival submissions made by learned counsel for petitioners as well as respondents and perused the records. 6. On seeing the facts, at the earlier occasion, an application in I.A.No.889 of 2013 filed by the plaintiff seeking prayer to appoint an advocate commissioner to note down physical features. Accordingly, the commissioner was appointed and he visited the property and submitted his report. But, in that report, both parties have raised objection. Subsequently, an application in I.A.No.1329 of 2015 has been filed with a comprehensive prayer that the plaintiff want to measure the property with the help of surveyor. Considering the relief claimed in the suit and to adjudicate the issue between parties, the report of the Commissioner is necessary. Therefore, the trial court has rightly allowed the application but without eshewing the earlier report of the commissioner. Therefore, this Court is inclined to eschew the earlier report filed in I.A.No.883 of 2013, thereby, the order passed by the trial court in I.A.No.1329 of 2015 is confirmed. Accordingly, this Civil Revision Petition is allowed with a direction directing the trial court to appoint an advocate commissioner as prayed by the plaintiff and during the pendency of the suit, the Commissioner is directed to visit the property and file his report within a period of two months from the date of receipt of copy of this order and the trial court is directed to dispose the suit within a period of six months thereafter. No costs. Consequently, connected Civil Miscellaneous Petition is closed.