IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.02.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)No.183 of 2006 and C.M.P.No.1742 of 2006 1. V.Sivakumar 2. V.Senthilkumar ... Petitioners vs. R.Selvaraj ... Respondent Civil revision petition filed under Article 227 of the Constitution of India against the fair and decretal order of the learned Principal District Munsif, Namakkal dated 19.10.2005 made in I.A.No.1602 of 2005 in O.S.No.1669 of 2004. For Petitioner : No appearance For Respondents : No appearance O R D E R Inveighing the order dated 19.10.2005, passed by the learned Principal District Munsif, Namakkal in I.A.No.1602 of 2005 in O.S.No.1669 of 2004, this civil revision petition is focussed. 2. Despite printing the names, both parties have not appeared and no representation has been made on either side. 3. An epitome of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus: (i) The respondent/plaintiff filed the suit O.S.No.1669 of 2004 seeking the following reliefs: "m) thjp jhth ug; gpshdpy; C1 C2 gphpt [ Mw;wpypUe;J C2 C4 C5 C6 tha;f;fhy; tHpahf jz;zPh; vLj;Jr; brd;W mDgtpf;f chpik cz;L vd;w tpsk;g[if bra;Jk; mjd; bjhlh;r;rpahf c& tPjk; https://hcservices.ecourts.gov.in/hcservices/ jz;zPh; vLj;Jr; brd;W mDgtpg;gij gpujpthjpfnsh mtuJ Ml;fnsh vf;fhyj;jpYk; ahbjhU jila[k;. , il";rYk; bra;af;TlhJ vd ic&ahh;fs; nghpy; epue;ju cWj;Jf;fl;lis of;hp gpwg;gpj;Jk; M) thjpf;F vjph;thjk; bra;a[k ; gpujpthjpfshy; jhth rpyt[ Jif fpilf;Fk;gof;Fk; ,) ,d;Dk; nfhh;l;lhh; mth;fSf;F a[f;jkha; njhd;Wk; ,ju ghpfhu';fs; fpilf;Fk;go of;hp gpwg;gpf;f ntz;Lkha; thjp tzf;fkha; gpuhh;j;jpf;fpwhh;/ " (ii) Written statement was filed by the defendants. It appears earlier an Advocate Commissioner was appointed to visit the suit property and submit his report. However, the revision petitioners being not satisfied with that, filed I.A.No.1602 of 2005 seeking the following reliefs: "To reissue the warrant of Commissioner to the same Commissioner with an order to measure the channel portion C, C1, C2 according to the FMB and the physical features existed and file a detailed report with survey plan." (iii) After hearing both sides, the lower Court ordered re- issuance of the warrant to the Commissioner with a mandate that the Commissioner shall once again visit the suit property and measure C1 and C2 channel and also find out in which survey numbers the channel is running. Being disconcerted and aggrieved by the order of the lower Court in restricting and pruning the prayer of the revision petitioners, this revision petition has been filed on various grounds, inter alia thus: Even though the revision petitioners/defendants in I.A.No.1602 of 2005 prayed for re-issuance of the warrant to the Commissioner so as to measure the channel portion C, C1 and C2 according to FMB and physical features and submit a detailed report with sketch, the lower Court restricted such mission in respect of C1 and C2 portion alone without any plausible reasons. The learned District Munsif should have seen that the specific case of the petitioners before the trial Court was that the disputed channel does not run through their lands and that the land in S.No.616 shown as a pit is not a pit, but it is the patta land of the petitioners. 4. A bare perusal of the order of the lower Court coupled with the typed set of papers including the grounds of revision would evince and bespeak that the revision petitioners themselves having failed to justify or make out or probablize their prayer for measuring the channel portion C, C1 and C2 in the affidavit https://hcservices.ecourts.gov.in/hcservices/ accompanying the said I.A., has gone to the extent of raising their accusitive finger as against the lower Court for it having not given reason for excluding 'C' portion in the Commissioner warrant. 5. A mere perusal of the affidavit of V.Senthil Kumar(D2) accompanying the petition would in no way highlight as to why the measurement should be from 'C' portion onwards, and that too when there is no reference to 'C' portion in the prayer of the plaint, only in the grounds of revision such a prayer has been made and that too without specifying or highlighting or spot lighting the justification for including 'C' portion also within the mission of the Commissioner. The lower Court based on the facts in paragraph 5 of the affidavit of the petitioner held that fate de nieur (for want of a better alternative) if the Commissioner measures C1 and C2 portion with reference to FMB extract, it would be able to locate the actual course of the channel and it could also get itself highlighted whether the channel runs through the defendants' property or not, de hors the pleadings of the parties. It is the duty of the plaintiff to prove his case and not for the defendants to disprove it unless the burden gets shifted on them. The defendants cannot rely upon their own pleadings and try to find support by getting appointed an Advocate Commissioner. Moreover,the order passed by the lower Court is purely based on factual appreciation and no law point is involved. It is a common or garden principle of law that this Court will be reluctant in exercising its revisional power when no serious error of law is shown to have crept in the order of the lower Court. I could see apparently no error of law in the lower Court's order as au fait with law and au courant with facts the lower Court passed the order. Consequently, I could see no merit in the revision petition, and as such it is dismissed. 6. However, en passant I make it clear that after the submission of the additional report with sketch by the Commissioner in response to the reissued warrant, the revision petitioners are at liberty to file objections and also make necessary prayers for being considered by the Court at its discretion. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Principal District Munsif, Namakkal MRD(CO) SR/20.3.2009 C.R.P.(PD)No.183 of 2006 https://hcservices.ecourts.gov.in/hcservices/