An Advocate Commissioner cannot be appointed to collect oral or documentary evidence, and it is the duty of the parties to prove their case through oral and documentary evidence.

JUDGMENT

(Prayer: This Civil Revision Petition is filed under Article 227 of the Constitution of India praying to set aside the fair and final order of the Principal District Munsif Court, Mayiladuthurai dated 20.04.2016 made in I.A.No.43/2016 in O.S.No.249/2014 and allow the said application.)

1. This Civil Revision Petition has been filed by the petitioners challenging the order passed by the learned Principal District Munsif, Mayiladuthurai in I.A.No.43 of 2016 in O.S.No.249 of 2014 dated 20.04.2016, dismissing the Interlocutory Application filed by them, for appointment of Advocate Commissioner.

2. The brief facts of the case are as follows:

The plaintiffs in the suit are the revision petitioners herein. The immovable properties, more particularly, described in the suit schedule are punja house site and pathway situate at Sitharkadu Village, Mayiladuthurai Taluk. The deceased first respondent/defendant is the owner for entire R.S.Nos.480/4 & R.S.No.496/1. He formed a house site lay-out comprising several plots. A pathway to a breadth of 10 feet had been formed in the middle and house site plots were carved on the either side of the pathway. The pathway is running north-south and plots were on the eastern side as well as on the western side. The pathway is described as ‘B’ schedule property. The first petitioner/first plaintiff had purchased a plot vide registered sale deed dated 22.03.1995, which is situated on the east of the pathway, on the extreme north, which is suit ‘A’ schedule property. After the purchase of suit schedule property by the first petitioner/first plaintiff, the suit property is sub divided as R.S.No.480/4B. The first petitioner/first plaintiff has purchased 2,646 Sq.ft., but on earth available extent is only 2,340 Sq.ft. Thereafter, she sold the southern portion of the schedule property to her daughter who is none other than the second petitioner/second plaintiff, by way of registered sale deed dated 12.03.2014.

2.1. Though portion of ‘A’ schedule property had been sold to the second petitioner/second plaintiff, but on earth, the entire ‘A’ schedule property is enjoyed as a single unit without any demarcation. So the petitioners/plaintiffs have jointly filed the suit. Even in the sale deed dated 22.03.1995 which was executed in favour of the first petitioner/first plaintiff, the western boundary is shown as 10 feet breadth common pathway, namely, the suit ‘B’ schedule property. Without ‘B’ schedule property viz., common pathway, the petitioners/plaintiffs cannot enjoy the ‘A’ schedule property. The petitioners/plaintiffs have got right of easement over the ‘B’ schedule property. The said ‘B’ schedule property is all along enjoyed by the first plaintiff right from the date of her purchase, as a pathway to the suit, ‘A’ schedule property.

2.2. The deceased first respondent/defendant has no right to curtail or obstruct or diminish the utility of the ‘B’ schedule property by any means, so as to affect the ingress and egress of petitioners/plaintiffs. But all of a sudden, on and from 22.09.2014, the deceased first respondent/defendant is proclaiming that he will allot only 2 feet breadth passage abutting suit ‘A’ schedule property on its west and he will use the remaining portion of pathway for his house construction. This has necessitated the petitioners/plaintiffs to file the suit O.S.No.249 of 2014 for a decree of permanent injunction restraining the deceased first respondent/defendant, his men or his agents or servants or any person acting under him or through him from in any way obstructing, curtailing, plaintiffs’ free movement of ingress and egress over the suit ‘B’ Schedule property by putting up any construction or super structure in the suit ‘B’ schedule property.

3. The deceased first respondent/defendant has filed his written statement on 15.12.2014, in which, he has categorically denied that ‘B’ schedule property is not a common pathway and that the petitioners/plaintiffs are using the ‘B’