IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 08.09.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD)No.2254 of 2008 and M.P.No.1 of 2008
Suresh Kumar ... Petitioner/Petitioner/ Defendant
Vs.
Prasad ... Respondent/Respondent/
Plaintiff
This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 01.04.2008 made in I.A.No.368 of 2008 in O.S.No.98 of 2004 on the file of the District Munsif, Tambaram.
For Petitioner : Mr.S.F.Mohamed Yousuf
For Respondent : Mr.V.Ramesh
*****
O R D E R
This Civil Revision Petition is filed against the order dated 01.04.2008 made in I.A.No.368 of 2008 in O.S.No.98 of 2004 on the file of the District Munsif, Tambaram.
2. The first defendant in O.S.No.98 of 2004 is the revision petitioner before this Court. O.S.No.98 of 2004 has been filed by the respondent/plaintiff for a declaration to declare that the B schedule property is the common passage to the plaintiff and to pass an order of consequential injunction restraining the first defendant from putting up any kind of construction in the B schedule property and also for a mandatory injunction to direct the defendant to remove the encroachments made by him in a portion of the “B” schedule property. Pending suit, an application in I.A.No.796 of 2004 was filed by the respondent/plaintiff to appoint an Advocate Commissioner to note down the physical features and take measurement of the suit property with the help of Taluk Surveyor. The said application was resisted by the petitioner/first defendant. Finally, an Advocate Commissioner was appointed and who after inspecting the suit property filed a report dt.06.03.2006. Both the respondent/plaintiff and the petitioner/first defendant have filed their objections.
3. While so, an application in I.A.No.368 of 2008 was filed by the petitioner/first defendant seeking for re-issuing the warrant to the Advocate Commissioner earlier appointed by the Court below to make a local inspection of the entire property in Plot No.11, in an approved layout in PPD LO No.77/1991 in survey No.86/5A. Chitlapakkam village, identify and locate with the available measurements on land and that of the measurements in revenue records relating to 3 parts of Pot No.11, i.e., the Plot No.11-A, Plot No.11-B and the common passage, sub divided under the proceedings of Chitlapakkam Town Panchayat in its proceedings dated 03.09.2002 sub division No.109/02-03 D.Dis.No.474/02 and to file a detailed report.
4. The said application was resisted by the respondent/plaintiff by filing a counter. The trial court by order dated 01.04.2008 dismissed the application. Aggrieved by the same, the above revision has been filed by the first defendant under Article 227 of the Constitution of India.
5. Notice was ordered by this court on 14.07.2008 and interim stay was also granted. The respondent/plaintiff has entered appearance through counsel.
4. Heard the learned counsel appearing for the petitioner/first defendant and the learned counsel for the respondent/plaintiff. I have also gone through the documents filed in support of their submissions.
5. The learned counsel for the petitioner/first defendant submits that the Advocate Commissioner who was appointed by the court below has not briefed the subject matter relating to the nature and identification of the property in dispute and the property possessed by him and the plaintiff. It is his further case that the advocate Commissioner has filed his report as furnished by the Taluk Surveyor. Therefore, the report of the Advocate Commissioner is misleading and cannot be relied upon. Therefore, he filed an application to re-issue the warrant to the Advocate Commissioner to measure the entire property and identify and locate with the available measurements in revenue records relating to three parts and common passage. However, on the objection raised by the respondent/plaintiff, trial court dismissed the application holding that a detailed report and sketch of the Taluk Surveyor in respect of the suit dispute is already available on file and that would be sufficient to decide the issues between the parties and it is unnecessary to appoint Advocate Commissioner to drag on the proceedings.
6. Admittedly, the trial has commenced and the plaintiff’s evidence was closed on 6.2.2008 and the suit was posted for the defendant’s evidence. Considering the stage of the suit and considering the fact that a detailed report and sketch of the Taluk Surveyor is already available, the trial court took the view that the petition filed by the petitioner is not necessary.
7. I am of the opinion that the trial court has rightly dismissed the application which does not warrant any interference by this court under Article 227 of the Constitution of India. It is always open to the petitioner/defendant to examine the Advocate Commissioner if there is any discrepancies in the report filed by him. Therefore, I do not find any merit in the Civil Revision petition and the same is liable to be dismissed.
8. Accordingly, the Civil Revision petition is dismissed. No costs. Connected M.P.No.1 of 2008 is also dismissed.
vaan
To
The District Munsif,
Tambaram
[ PRV / 16259 ]