1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:16.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.1772 of 2011 and MISCELLANEOUS PETITION No.1/11 1.Manoharan 2.Ilangiyam :Petitioners -Vs- 1.Valliyammai 2.Family Manager Rajamanickam :Respondents Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 03.02.2011 passed in Interlocutory Application No.711 of 2010 in Original Suit No.50 of 2007 by the District Munsif Court, Kulithalai. For Petitioners:Mr.G.Sridharan ORDER This Civil Revision Petition has been directed against the order dated 03.02.2011 passed in Interlocutory Application No.711 of 2010 in Original Suit No.50 of 2007 by the District Munsif Court, Kulithalai. 2.The respondents herein as plaintiffs have instituted Original Suit No.50 of 2007 on the file of the Court below for the reliefs of declaration, recovery of possession and also for mandatory injunction, wherein the present revision petitioners have been shown as defendants. In Original Suit No.50 of 2007, an application has been filed in Interlocutory Application No.366 of 2008 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner, wherein an Advocate Commissioner has been appointed for the purpose mentioned therein and he inspected the suit properties and filed his report and plan and in order to re-issue the commission warrant to the same Commissioner, the present petition has been filed in Interlocutory Application No.711 of 2010 by the revision petitioners as petitioners. The Court below has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioners/defendants as revision petitioners. 3.Considering the fact that in Interlocutory Application No.366 of 2008, an Advocate Commissioner has been appointed and he filed his report and plan and also considering that the present petition has been filed so as to re-issue the commission warrant to the same Commissioner and the order passed therein by the Court below, notice need not be sent to the respondents and this 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 Original Suit No.50 of 2007 has been filed on the basis of the sale deed mentioned in the plaint and the Advocate Commissioner has simply measured the suit properties with reference to measurements given in the property description of the plaint and he has not looked into the documents of title of the plaintiffs as well as defendants and for the purpose of giving quietus to the parties, the disputed property as well as https://hcservices.ecourts.gov.in/hcservices/ 2 property of the defendants should be measured with reference to documents of title and also with reference to revenue documents and for that purpose the present petition has been filed so as to re-issue the commission warrant to the same Commissioner, but the Court below has erroneously dismissed the same and therefore the dismissal order passed by the Court below is liable to be interfered with. 5.As adverted to earlier, Original Suit No.50 of 2007 has been instituted for the reliefs of declaration, recovery of possession and also for mandatory injunction. In fact along with the plaint, a plan has been annexed, wherein it has been clearly stated that the property of the defendants is situate immediately on the western side of the points 'A D' The bone of contention mentioned in Original Suit No.50 of 2007 is the portion, which has been described as 'A B C D', which situates immediately on the eastern side of the property of the defendants. Considering the fact that the suit properties as well as the property of the defendants are adjacent properties, for the purpose of giving complete adjudication between the parties, both the properties should be measured with reference to title deeds and also with reference to revenue documents. In fact this Court has perused the Commissioner's report and plan. The Commissioner has taken out measurements only on the basis of the particulars given in the plaint filed in Original Suit No.50 of 2007. Since the Advocate Commissioner has not measured the suit properties as well as the property of the defendants with reference to title deeds as well as revenue documents, this Court is of the view that the Advocate Commissioner appointed in Interlocutory Application No.366 of 2008 is liable to be directed to revisit the suit properties for the purpose mentioned in Interlocutory Application No.711 of 2010. The Court below without considering the nature of the reliefs sought for in Original Suit No.50 of 2007 and also the lie of the properties of the plaintiff and the suit properties has erroneously dismissed Interlocutory Application No.711 of 2010. In view of the discussion made earlier, this Court has found considerable force in the contentions putforth on the side of the revision petitioners and altogether the present Civil Revision Petition is liable to be allowed. 6.In fine, this Civil Revision Petition is allowed without costs at the stage of admission and the order passed in Interlocutory Application No.711 of 2010 in Original Suit No.50 of 2007 by the District Munsif Court, Kulithalai is set aside and the petition filed in Interlocutory Application No.711 of 2010 in Original Suit No.50 of 2007 is allowed without costs and the District Munsif Court, Kulithalai is directed to re-issue the commission warrant to the same Commissioner at the cost of the revision petitioners for the purpose mentioned in Interlocutory Application No.711 of 2010 Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: The District Munsif, Kulithalai. +1CC to Mr.G.Sridharan, Advocate. SR.No.40026. Smn C.R.P(PD)(MD)No1772 of 2011 and M.P(MD)No.1 of 2011 RP/18.11.2011/2P/3C. 16.11.2011. https://hcservices.ecourts.gov.in/hcservices/