The civil revision petition is directed against the fair and decreetal orders, dated 03.07.2009, passed in I.A.No.264 of 2008 in A.S.No.6 of 2007, on the file of the Subordinate Court, Kuzhithurai.
2. The revision petitioner is the plaintiff in O.S.No.505 of 2001, on the file of the District Munsif Court, Kuzhithurai. The abovesaid suit has been laid by the revision petitioner against the respondents herein, for the reliefs injunction and partition. It is seen that the abovesaid suit, after contest, had come to be dismissed. Challenging the Judgment and Decree of the Trial Court, it is noted that the revision petitioner has preferred the first appeal in A.S.No.6 of 2007. Pending the abovesaid first appeal, the revision petitioner has come forward with the application in I.A.No.264 of 2009 seeking for appointment of Advocate Commissioner, on the footing that though by way of the partition deed, dated 21.04.1122 M.E., in respect of the suit survey number and other properties, his father had been allotted the second plot from north as Plot-C and the suit survey number had been divided into four http://www.judis.nic.in 3 plots under the abovesaid partition deed, as no plan had been annexed to the partition deed, there was no definition of the land clearly, hence, the revision petitioner had been necessitated to lay the suit for partition and further, it is stated there is a partway running through the western border of the suit survey number for the access of the parties to the road on the north and according to the revision petitioner, as no boundaries have been put up for the plots, as mentioned in the partition deed and no plan is also annexed and in the re-survey, the entire suit property has been shown as single plot, without any sub-division and also the respondents are making attempts to put up new building and also put up new boundaries by forming plots, accordingly, to note the abovesaid features, the appointment of Advocate Commissioner is essential and prayed for the appointment of the Commissioner with reference to the same.
3. The abovesaid application of the revision petitioner has been resisted by the respondents contending that the suit laid by the revision petitioner in O.S.No.505 of 2001 has been dismissed by the Trial Court and the suit property had been clearly partitioned as per the partition deed, dated 21.04.1122 M.E., and even the revision petitioner has admitted that the suit survey number has been divided into four plots and one plat has been allotted to his father from the north i.e., the 2nd Plot and also the revision petitioner http://www.judis.nic.in 4 has accepted the abovesaid position during the course of his evidence in the Trial Court and the pathway described in the partition deed is not meant for the suit survey number and it is in respect of the another property and the same is clearly depicted in the partition deed and there is no common pathway within the suit survey number, particularly, having the width of 20 Feet and the first respondent provided 3 links width pathway to his brother within his plot at the western edge and put up a barbed wire fence leaving the pathway on the west and accordingly, the respondents 1 and 2 are enjoying their respective portions with well-defined boundary, there is no need for appointment of the Advocate Commissioner to note the boundaries of the suit property and therefore, the application is liable to be dismissed.
4. The abovesaid application having been dismissed by the Court below, aggrieved over the same, the present civil revision petition has been preferred by the revision petitioner.
5. Admittedly, the suit levied by the revision petitioner for the reliefs injunction and partition had been dismissed and challenging the same, the revision petitioner has preferred the first appeal. The revision petitioner has clearly admitted in the suit that as per the partition deed referred to in the plaint, the suit survey number has been divided into four plots and one plot http://www.judis.nic.in 5 had been allotted to his father. When such being the position, the present case putforth by the revision petitioner that even though the partition deed refers to the division of the suit survey number as four plots, inasmuch as in the resurvey number, the suit survey number has been shown as single plot, the Advocate Commissioner has to be appointed to observe and report the same to the Court and also putforth the case that inasmuch as the pathway is in existence in the suit survey number for the access of the parties to the road on the north, the abovesaid feature is also to be noted by the Commissioner for effective adjudication of the issues involved in the matter and therefore, prayed for the appointment of the Advocate Commissioner.
6. The abovesaid cause projected by the revision petitioner has been stoutly resisted by the respondents contending that when the division of the suit survey number into four plots has been admitted by the revision petitioner and the pathway described in the partition deed has no reference to the suit property, on the other hand, it is meant for the other property as clearly recited in the partition deed, in such view of the matter, there is no need for the appointment of the Advocate Commissioner and sought for the dismissal of the application.
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7. As rightly determined by the Court below, when according to the revision petitioner as pleaded in the plaint, the suit survey number has been divided into four plots and his father has been allotted one plot, even assuming for the sake of argument, in the re-survey, the suit survey number has been shown as single plot, the abovesaid factors could be established by adducing oral and documentary evidence, hence, there is no need for the appointment of the Advocate Commissioner to determine the same. Similarly, the pathway described in the partition deed is found to be only with reference to the another property and not with reference to the suit property and the respondents had made own arrangements in their respective properties and put the pathway for their benefit and in such view of the matter, when the partition deed refers to the pathway and also clearly recites that the abovesaid pathway is meant for another property, in such view of the matter, when the said facts could be established by adducing the necessary oral and documentary evidence, there is no need for the Commission to determine the same. Accordingly, for the reasons aforestated, the Court below had dismissed the Commission application. Considering the abovesaid reasons, it is seen that the Court below had rightly noted that the Commission application is unnecessary as the issues sought to be made out by the revision petitioner in the application could be established by oral and documentary evidence and when with reference to the abovesaid issues, the documents in http://www.judis.nic.in 7 particular are very clear and adequate to determine the controversy involved between the parties as regards the subject matter and accordingly, the Trial Court had also come to dispose of the suit, without any Commission inspection, as rightly determined by the First Appellate Court, the Commission application preferred by the petitioner is found to be only to delay the proceedings one way or the other and therefore, not entertained the same.
8. For the reasons aforestated, no valid reason is made out to interfere with the impugned order of the Court below. Resultantly, the civil revision petition is dismissed with costs. Consequenty, connected miscellaneous petition is closed.