The order dated 03.08.2010 passed in I.A.No.732 of 2010 in O.S.No.25 of 2010, on the file of Principal District Munsif Court, Tirunelveli, is being challenged in the present Civil Revision Petition.

2. The first respondent herein as plaintiff has instituted Original Suit No.25 of 2010 on the file of the Court below for declaration that the suit 2nd schedule property is a common pathway for himself and the defendants and for consequential injunction restraining the defendants from interfering with his enjoyment by putting up any construction, wherein the present revision petitioners and other respondents have been shown as defendants in Original Suit No.25 of 2010. Pending suit, the first respondent herein as petitioner has filed Interlocutory Application No.54 of 2010 so as to appoint an Advocate Commissioner and accordingly an Advocate Commissioner has been appointed and he inspected the suit property and ultimately filed his report. Thereafter, the first respondent/plaintiff has filed I.A.No.732 of 2010 in O.S.No.25 of 2010 to re-issue the Commissioner's warrant.

3. The Court below after considering the rival contentions put forth on either side has allowed the said petition. Aggrieved by the said order the present Civil Revision Petition has been filed at the instance of the first defendant, as revision petitioner.

4. Heard the learned counsel appearing for the petitioner; the learned counsel appearing for the first respondent and also perused the entire materials on record.

5. The learned counsel appearing for the revision petitioner/first defendant has contended that Original Suit No.25 of 2010 has been instituted for the relief of declaration and for consequential injunction. In the meanwhile, the first respondent/plaintiff as petitioner has filed Interlocutory Application No.54 of 2010, so as to appoint an Advocate Commissioner wherein an Advocate Commissioner has been appointed and he has inspected the suit schedule property and filed his report and no objections filed on the side of the first respondent/plaintiff in time. Under the said circumstances, the question of re-issue of Commissioner warrant does not arise and therefore, the order passed by the Court below is liable to be interfered with.

6. In support of his contentions, the learned counsel for the petitioner, has relied on the following Judgment:-

(i) In CDJ 2017 MHC 434 (G. Kothandaraman Vs. D. Kesavan & Another), wherein this Court has observed as follows:-

4. Admittedly, the Petitioner has filed a suit for declaration and for mandatory injunction in respect of the encroachment area mentioned as 'CDEF' Portion. The Petitioner is claiming his right in respect of 81.75 sq.ft site measuring east-west 27 feet 3 inch and north-south 3 feet in part of S.No.93/8.The Commissioner report was filed before the trial Court, along with plan and sketch. The Trial Court, based on the above said documents, on merits had dismissed the suit. Aggrieved by which, the Petitioner has filed the appeal suit in A.S.No.114 of 2012 before the Subordinate Court, Sivagangai. The present application in I.A.No.147 of 2014 in A.S.No.113 of 2012 filed by the revision petitioner before the appellate Court to reissue of commission warrant to the Commissioner with a direction to inspect the suit schedule property and to file a fresh report along with rough sketch under Order 26 Rule 9 of Civil Procedure Code. The aforesaid application was dismissed on 22.4.2016. On a perusal of the order passed by the appellate Court in the above I.A, it is seen that the Petitioner has already filed I.A.No.1267 of 2011 before the trial Court for the same relief and the same was dismissed on 28.2.2016. The aforesaid order has become final.

5. At this juncture, it is to consider the decision relied on by the learned counsel for the petitioner in Anwar Batcha Vs. S. Mahuedoom reported in 2014 (5) CTC 85, wherein this Court has held that in the suit filed by the respondents/plaintiffs seeking permanent injunction