The revision is filed challenging the order passed in I.A.No.406 of 2007 in O.S.No.161 of 2000, wherein, the trial court has rejected the request of the petitioner seeking appointment of commissioner to inspect and measure the suit property and file a report with the help of the surveyor.
2.The petitioner being the plaintiff filed a suit for permanent injunction restraining the respondents herein from interfering with the peaceful possession and enjoyment of the suit property. Pending the suit, an application for appointment of commissioner was made and the said application was ordered and accordingly a report was also filed with respect to the note down of the physical features. Thereafter, the present application has been filed to measure the suit property with the help of the surveyor.
3.A perusal of the averments made in the affidavit filed in support of the application would show that the basis of the application is that the respondents have removed the fence put up by the petitioner and damaged the same. The court below has dismissed the said application by holding that the earlier application is sufficient and the present application is an injunction suit, cannot be allowed. The court below held that the application cannot be allowed for collecting evidence by parties. The learned counsel appearing for the petitioner submitted that in order to solve the dispute between the parties a commissioner can be appointed. It is further submitted that the respondents herein have encroached certain portion of the suit property and hence, the application ought to have been allowed by the court below. The learned counsel has also relied upon the judgments reported in (2005) 3 M.L.J.525, 2007 (1)CTC 611, 2009-3- L.W.66 and 2005 (3) CTC619, in support of his case that even in a suit for permanent injunction, a commissioner can be appointed. He further submitted that when there is some dispute regarding the location of the property and the extent is denied, in such case, a commissioner can be appointed.
4.In the judgment reported in (2005) 3 M.L.J.525, Sivagurunathan vs. Ramalingam and others, this court has held that when the location of the plaintiff's property and the extent is denied, a commissioner can be appointed for effectively adjudicating the dispute between the parties. In the present case of the hand, already a commissioner has been appointed and the present petition has been filed when the suit is ripe for trial and hence the judgment relied on by the petitioner does not apply to the case on hand. It is further seen that the averments made in the affidavit would disclose that the fence has been destroyed and there is no averment regarding the encroachment. Hence, this court is of the opinion that the judgment reported in 2007 (1) CTC 611, S.Palanisamy Gounder vs. N.Palanisamy and three others, does not apply to the present case on hand.
5.In 2009-3-L.W.66, R.Sudalaimuthu vs.Ponnuchamy Ambalam, Thiruppathy, Thangapandi, it has been held that when an order of appointment made by the court below, the revisional court shall not be interfere because no prejudice would be caused to the person who challenges the order of appointment of commissioner. Similarly, a judgment reported in 2005 (3) CTC 619, Padmanabhan vs. Krishnamurthy, it has been held that if the earlier report is found to be unsatisfactory then supplementary report can be called for. Hence, this court is of the opinion that the above said two judgments also will not to be applicable to the present case.
6.It is a well settled principle of law that in a suit for permanent injunction the plaintiff has to prove his possession. An appointment of commissioner cannot be made in the normal circumstances. This court after considering the facts of the case finds that such a commissioner is not necessary for deciding the suit.
For the reasons stated above the revision stands dismissed. Consequently, the connected M.P. is also closed.
ns To
1.The Principal District Munsif Court, Pudukkottai.