The appointment of an Advocate Commissioner is not warranted when there is no dispute regarding the physical features of the properties, and the petitioner has to prove the case through oral and documentary evidence.

JUDGMENT :

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the Fair and Final order dated 28.06.2018 passed in I.A.No.489 of 2017 in O.S.No.268 of 2014 on the file of the learned Principal District Munsif, Additional District Munsif Court, (FAC), Cuddalore.)

1. The present Civil Revision Petition is against the fair and decreetal order dated 28.06.2018 passed in I.A.No.489 of 2017 in O.S.No.268 of 2014 on the file of the Principal District Munsif, Additional District Munsif (FAC), Cuddalore.

2. The Civil Revision Petitioner is the plaintiff and the respondents are defendants 6, 7 and 8 in the suit. The suit was filed by the petitioner to declare his title to the suit ‘A’ Schedule properties restraining the respondents and to direct the defendants 4 and 5 therein to alter revenue records as to show the petitioner as owner of the properties described in ‘A’ Schedule properties and issue patta to him.

3. The petitioner/plaintiff has taken out I.A.No.489 of 2017 seeking to appointment Advocate Commissioner with directions to inspect the suit ‘A’ and ‘B’ schedule properties, note down the physical features and to file a report and plan to the court. A counter was filed by the respondents and the court below after considering the pleadings of both the parties, has dismissed the said application for appointment of Advocate Commissioner. Aggrieved by the same, the petitioner/plaintiff has filed the present Civil Revision Petition.

4. The petitioner’s case is that he is in possession of both ‘A’ and ‘B’ Schedule Properties mentioned in the plaint, which is inhibited by way of oral partition. There is a motor, borewell, Pumpset and electricity service connection in suit ‘B’ Schedule property and from ‘B’ Schedule Property, he is fetching water to ‘A’ Schedule Property through the pipes embedded beneath the earth. Since the said crux is the vital aspect, the petitioner has prayed for appointment of Advocate Commissioner.

5. The said claim was denied by the respondents stating that the petitioner/plaintiff is not in possession of the said property nor he has title over the suit properties. The issue with regard to the title of the property is to be considered by taking note of the fact that whether the same was inhibited by the petitioner/plaintiff by way of oral partition, when the title deeds stand in the name of the father of the respondents 2 & 3. Further, there is no difficulties regarding identification of the properties nor there is any dispute regarding territories/boundaries of the property. That apart, the respondents have clearly stated that they have no claim over the suit ‘B’ Schedule property and they are only concerned with ‘A’ Schedule property. The said issue can be decided only by proving the same by way of letting in necessary evidence. When there is no dispute regarding identification of the property, no advocate commissioner needs to be appointed. Only with a malafide intention to gather some evidence with regard to the suit schedule properties, the petition for appointment of advocate commissioner was filed and on account of the same, the respondents prayed for dismissal of the application.

6. Heard Mr.R.Gururaj, learned counsel appearing for the petitioner and Mr.D.Ravichander, learned counsel appearing for the respondents and perused the documents placed on record.

7. The contention of the learned counsel for the petitioner that he is fetching water from ‘B’ Schedule Property to ‘A’ Schedule Property through the pipeline, which has been embedded underneath the earth and through the same, he is irrigating his crops and the same can be proved by appointing the advocate commissioner, who will note down the physical features, cannot be accepted because of the fact that when there is no dispute regarding the physical features of the suit property, a petition being filed only to collect the evidence to support his claim regarding possession. Further, the dispute with regard t