1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.02.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.373 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Kannan 2.Balakrishnan .. Petitioners/Respondents/Defendants Vs. R.Anuchiya .. Respondent /Petitioner / Plaintiff Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 05.11.2009 passed in Interlocutory Application No.370 of 2009 in Original Suit No.260 of 2008 by the District Munsif Court, Virudhunagar. For Petitioners : Mr.M.Prabu ORDER Challenge in this Civil Revision Petition is to the order dated 05.11.2009 passed in Interlocutory Application No.370 of 2009 in Original Suit No.260 of 2008 by the District Munsif Court, Virudhunagar. 2. The respondent herein as plaintiff has instituted Original Suit No.260 of 2008 on the file of the Court below for the reliefs of declaration and recovery of possession of the suit second schedule, wherein the present revision petitioners have been shown as defendants. During pendency of the same, the petition in question has been filed in Interlocutory Application No.370 of 2009 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner and the same has been allowed. Against the order passed by the Court below, the present Civil Revision Petition has been preferred. 3. Considering the nature of the relief sought for in Original Suit No.260 of 2008 as well as the nature of the relief sought for in Interlocutory Application No.370 of 2009, notice need not be sent to the respondent and the present Civil Revision Petition is disposed of on merits at the stage of admission. 4. The learned counsel appearing for the revision petitioners has contended that the suit first item is comprised in Survey No.756 and its total extent is 3 acres 70 cents and the first defendant has purchased the northern portion and the second defendant has purchased the southern portion and the plaintiff has purchased the middle portion, which has been shown as the suit first schedule and the present suit has been instituted for the reliefs of declaration and recovery of possession in respect of the suit second schedule property and the respondent has filed the petition in question in Interlocutory Application No.370 of 2009 so as to appoint an Advocate Commissioner for measuring the suit second schedule with the assistance of a surveyor and the Court below has erroneously allowed the same and therefore the order passed by the Court https://hcservices.ecourts.gov.in/hcservices/ 2 below is liable to be interfered with. 5. For considering the submission made on the side of the revision petitioners, the Court has to look into the description given to the suit first schedule. It is an admitted fact that the suit property is comprised in Survey No.756 and its total extent is 3 acres 70 cents. It is also equally an admitted fact that the property purchased by the first defendant is situate on the northern side of the suit first item and the property purchased by the second defendant is situate on the southern side of the suit first item. The suit second schedule forms part of the suit first schedule. The present suit has been instituted for the reliefs of declaration and recovery of possession of the suit second schedule. Considering the nature of the reliefs sought for in the present suit and also considering the stand taken on the side of the respondent/plaintiff to the effect that the defendants have encroached the suit second schedule, it is very clear that the respondent/ plaintiff is bound to prove the alleged encroachment by way of getting appointment of an Advocate Commissioner. Under the said circumstances, the present petition is legally maintainable and the Court below after considering all the contentions raised on either side has rightly allowed the same. 6. The learned counsel appearing for the revision petitioners has also contended that the revision petitioners are not having any objection to measure the suit second schedule with the assistance of qualified surveyor and their only objection is that the measurements should be made with reference to sale deeds of the revision petitioners and respondent. 7. Considering the fact that the property purchased by the first defendant is situate on the northern side and the property purchased by the second defendant is situate on the southern side of the suit first item, the Court can very well accept the contention put forth on the side of the revision petitioners. It has already been pointed out that the order passed by the Court below is perfectly correct and the same does not require any interference. 8. In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs at the stage of admission and the impugned order passed in Interlocutory Application No.370 of 2009 in Original Suit No.260 of 2008 by the District Munsif Court, Virudhunagar is confirmed. However the District Munsif Court, Virudhunagar is directed to give necessary instructions to the Advocate Commissioner to measure the suit properties and also the properties of the defendants with reference to their documents of title. Consequently, connected Miscellaneous Petition is dismissed. SD/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To The District Munsif , Virudhunagar. +1 CC TO M/S LAKSHMI GOPINATHAN, ADVOCATE S.R NO. 10388 C.R.P(PD)(MD)No.373 of 2011 and M.P(MD)No.1 of 2011 28.02.2011 smn PAM 09.03.2011/3C/2P https://hcservices.ecourts.gov.in/hcservices/