IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24-09-2010 CORAM THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRP.NPD.No.2043 of 2004 and C.M.P.No.15094 of 2004 Ponnambalam .. Revision petitioner Vs. 1. Muthukumaresan 2. Vattamalai Mudaliar 3. Krishnan .. Respondents Prayer :-This revision has been filed under Article 227 of Constitution of India against the order passed in I.A.No.132 of 2004 in A.S. No.87 of 2002 dated 18.08.2004 by the learned I Addl. District Judge, Salem. For Petitioner : Mr.G. Jeremiah for P. Krishnan For Respondents : Mr. M. Sudhakar for R1 (R2 and R3 dismissed for default on 18.03.2010) ORDER This revision has been filed against the order of dismissal passed by the lower court in I.A.No.132 of 2004 in A.S.No.87 of 2002, an application for appointment of the commissioner to inspect the suit properties and to file a report along with the sketch. 2. Heard Mr. G. Jeremiah, learned counsel for the petitioner and Mr.M. Sudhakar, learned counsel for the 1st respondent. 3. Learned counsel for the petitioner would submit in his argument that the lower court was not correct in dismissing the application seeking for appointment of commissioner and it has not applied its mind to come to a conclusion that the suit property is different from the property mentioned in the earlier suit. He would https://hcservices.ecourts.gov.in/hcservices/ further submit that the reason given by the lower court that the petitioner should have asked for appointment of commissioner before the lower court itself is not correct since the lower court had dismissed the suit only on the ground of res-judicata. He would further submit in his argument that the petitioner has preferred the appeal against the said judgment and decree passed by the lower court and the suit is deemed to have been still open and the controversies in respect of the suit property could have been settled by the way of appointment of commissioner. He would further submit that the suit property referred to in the former suit was one lane demarcated as 'ABCD' in the said suit but the present suit property is located adjacent to the said lane forming as boundary to the said lane and therefore, it has to be demarcated by way of measuring the property through the appointment of commissioner. He would also submit that the suit property in this case is entirely a different one which is not the same property covered in the earlier suit. He would further submit that the lower court ought to have appointed the commissioner so as to find out the extent of lane mentioned in the title deed of the respondent dated 04.06.1964 and to locate the suit property in this suit which is lying as a boundary to the suit lane of the earlier suit. Therefore, the order passed by the lower court in rejecting the appointment of commissioner may be interfered and set aside and thus the revision be allowed. 4. Learned counsel for the respondent would submit in his argument that the claim of the plaintiff in the suit was already negatived in the earlier suit filed by the respondent. He would also submit that the petitioner had shaped his claim in the form of easementary right in the earlier suit and in yet another form of easementary right in this suit which is quite contrary to each of the claims and it was accordingly found by the lower court as barred by res-judicata. He would further argue that the present suit is for the same cause of action filed in respect of the same property and what the commissioner had demarcated in the earlier suit would be sufficient for deciding the dispute in this case and therefore, the lower court was right in rejecting the appointment of commissioner. He would further submit in his argument that the appointment of commissioner sought for by the petitioner is luxury, in order to protract the proceedings as far as possible. Therefore,he would request the court to dismiss the revision. 5. I have given anxious thoughts to the arguments advanced on either side. 6. It is an admitted fact that there was an earlier suit in between the parties in respect of lane which was marked as 'ABCD' in the earlier suit and the suit was decreed in favour of the respondent holding that he is the owner of the said property. It is also an admitted fact that the said drainage and other pathway in https://hcservices.ecourts.gov.in/hcservices/ the 'ABCD' portion of the earlier suit was belonging to the respondents and the easementary right claimed by the petitioner as defendant in that suit was negatived. Now, the petitioner is coming forward with a suit for declaration in respect of the property said to have been adjacent to the earlier suit property. But the lower court had come to a conclusion that both properties are same and the cause of action has already been decided and the suit was dismissed on the principle of res-judicata. 7. The definite case of the plaintiff is that the present suit property which is marked in the present suit as 'DCBMNOPQ' is a different one from the suit property mentioned as 'ABCD' lane and was forming as a boundary to the said 'ABCD' property. It is the further case of the petitioner that the decree passed in the earlier suit would not form a res-judicata to the present suit in view of the properties in both the suits are different but are lying adjacent to each other. It is also claimed that the suit property in the earlier suit was relevant to two houses but the present suit property is connected with four houses and the said circumstances would also go to show that the property described in the present suit is different from that of the earlier suit. The petitioner has applied for such demarcation in order the court and explain to the court that the application of doctrine of res-judicata is not available in the present case. 8. As regards the decision of the lower court, we could see that the lower court had come to the conclusion that both properties are one and the same and thereby it has come to a conclusion that there is no necessity of appointment of commissioner. It has also based its claim that the petitioner has not asked for the relief of appointment of commissioner before the lower court. No doubt the appeal has been preferred by the petitioner and the suit is deemed to have been kept pending. The the non application for the appointment of commissioner is not a serious one if it is found that the appointment of commissioner would clear the clouds in order to enable the court to tome to a correct conclusion. The important point to be decided is, whether the property comprised in the earlier suit is the same property as in this suit. But it is the case of the petitioner through out that it is a different one. 9. In the aforesaid circumstances, the appointment of commissioner should have been opted by the lower court since the location of the properties in both the suits could be verified by the commissioner with the help of surveyor that too with reference to the title deed dated 04.06.1964 of the respondent and to see whether the present property is a boundary mark to the 'ABCD' lane mentioned in the earlier suit. It was not done by the lower court. Therefore, I feel it necessary to interfere and set aside the order passed by the lower court, so as to enable the lower court to appoint a commissioner for the petition mentioned purpose. https://hcservices.ecourts.gov.in/hcservices/ 10. Accordingly, the order passed by the lower court in rejecting the prayer of appointment of commissioner by the petitioner is set aside. 11. In the result, the revision is allowed and the lower court is directed to appoint a commissioner from the local bar for inspecting the suit properties measuring the same as requested in the petition and to file a detailed report with sketch and measurements. After filing such report, opportunity shall be given to both the parties to file objections to the commissioner's report and also to enable the parties to mark the commissioner's report and sketch as additional evidence in the appeal and dispose the said appeal within a period of three months from the date of receipt of a copy of this order. 12. With the aforesaid direction this revision is allowed. However, there shall be no order as to costs. Connected C.M.P is closed. kpr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To, The I Addl. District Judge, Salem. + 1 cc to Mr. R. Subramanian, Advocate SR No.70622 + 1 cc to Mr. P. Krishnan, Advocate SR No.71404 KSJ(CO) SR/18.10.2010 CRP.NPD.No.2043 of 2004 and C.M.P.No.15094 of 2004 https://hcservices.ecourts.gov.in/hcservices/