Anim-adverting upon the order dated 16.9.2004 passed in I.A.No.33 of 2002 by the Subordinate Judge, Attur, this revision petition is filed.
2. Pithily and precisely, succinctly and briefly, the relevant facts, which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The revision petitioner, as plaintiff, filed the original suit O.S.No.328 of 1991 before the District Munsif, Attur, seeking the relief of injunction so as to restrain the defendants from interfering with the alleged possession and enjoyment of the channel marked as 'C' and D' in the plaint plan. The trial Court dismissed the suit. As against which A.S.No.10 of 2002 was filed before the Sub-Court, Attur. During the pendency of the first appeal, I.A.33 of 2002 was filed seeking the following relief:
"to appoint an Advocate Commissioner to locate the under mentioned properties and measure the properties described hereunder on the basis of P.M.B plans and note down the physical features in the said properties and other points shown at the time of his visit and file his report with plan drawn to scale."
However, the first appellate Court dismissed the I.A. Being aggrieved by and dissatisfied with the said order, this revision petition is focussed on various grounds:
3. The learned counsel for the revision petitioner/plaintiff by placing reliance on the grounds of revision would develop his argument to the effect that the petitioner/plaintiff has been in enjoyment of taking water from the well to his land though the channel marked as 'C' and 'D' in the plaint plan for a pretty long time, so to say for over 30 years, and in such a case the Government Officials and others, who are arrayed as defendants in the suit, are not justified in causing obstruction; the lower Court, without properly appreciating the factual position, simply jumped to the conclusion as though there was no such right available with the petitioner/plaintiff. Accordingly, he prayed for appoint of an Advocate Commissioner, so that the Commissioner would be able to visit the suit property and find out the actual physical features.
4. Despite notice having been served on the respondents/defendants, none appears for them.
5. A mere perusal of the entire records, more specifically, the order of the lower Court would ex facie and prima facie exemplify and demonstrate that even the trial Court itself appointed an Advocate Commissioner and he visited the suit property and filed his report with sketch; at that time objection was not filed by the revision petitioner herein; after filing the appeal only, the revision petitioner herein had chosen to file such I.A. for appointment of a fresh Advocate Commissioner to measure the suit property with reference to survey plans and note the physical features.
6. The contention on the side of the revision petitioner that the Advocate Commissioner appointed by the trial Court did not carry out his mission properly cannot be countenanced for the reason that objection to the Commissioner report was not filed. It appears, before the trial Court, the petitioner has contended that a path way exists for the benefit of the petitioner/plaintiff and a few others only and not for others. But the Government Officials and other defendants resisted the same. It is the contention of the respondents/ defendants that when the plaintiff attempted to make some channel in the Government property there arose a dispute and which alone culminated in the filing of the suit by the petitioner/plaintiff.
7. Considering the pro et contra, in this factual matrix, I am of of the considered opinion that good deal of water has run under the bridge and after allowing the grass to grow under his feet and attracting the maxim Vigilantibus non dormientibus jura subveniunt the revision petitioner cannot simply, at the appellate stage, pray for appointment of fresh Advocate Commissioner floor and obfuscate, perplex and flummox the issue. Already before the trial Court, evidence was adduced on both sides and before the trial Court, the matter was pending for 10 long years, nonetheless objection also was not filed regarding measurement etc. The first appellate Court, in its elaborate order dealt with all these factual as well as legal issues, and passed the impugned order, which warrants no interference. Accordingly, this revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.
Msk To The Subordinate Judge, Attur