The court affirmed that an Advocate Commissioner can be appointed to elucidate matters in dispute, and the existence of a cart tract can be established through both documentary evidence and inspection.

ORDER :

This civil revision petition arises against the order of the learned District Munsif at Perundurai in I.A.No.4 of 2022 in O.S.No.145 of 2018 dated 09.10.2023.

2. The plaintiff is the civil revision petitioner.

3. O.S.No.145 of 2018 was presented for the relief of mandatory injunction and other allied reliefs. According to the plaintiff, the suit schedule mentioned property and other properties originally belonged to one Ramaya Gounder and his co-sharers. They created a 10 feet wide pathway over S.F.No.52/A for convenient enjoyment of the said property. In order to enjoy their properties individually, Ramaya Gounder, one Koppana Gounder, and other sharers entered into a partition deed on 18.12.1975.

4. By virtue of this partition deed, a 10 feet wide cart tract was shown as common to all the owners and the D schedule mentioned property fell to the share of the petitioner's father. The cart tract, that had been set apart for the common use of all the owners, had been left open for several decades, till the death of Koppana Gounder on 02.02.2007. Subsequently, his legal heirs Pavathal, Palaniammal, Kolandhayammal, and Pavalakodi executed a release deed for the suit schedule mentioned property in favour of the plaintiff on 09.04.2012.

5. The plaintiff would plead that the only way to access his property is through the common cart tract. On 15.12.2018, the defendants dug up a pit to an extent of 100 feet in and over the said cart tract and thereby damaged the cart tract. In order to note the existence of the cart tract as well as to measure the damages that had been caused to it, he took out an application under Order XXVI Rule 9 seeking appointment of an Advocate Commissioner to inspect the property. This application was received in I.A.No.4 of 2022.

6. Notice was issued to the respondents 1 and 2 who are the defendants in the suit. They filed a counter stating that no such cart tract exists and as DW1 was in the witness box, this application was an attempt by the plaintiff to drag on the matter.

7. The learned District Munsif came to a conclusion that the plaintiff is attempting to collect evidence by appointment of an Advocate Commissioner and that, the plaintiff must prove the existence of cart tract only by way of documentary evidence, and in any event, it is an attempt by the plaintiff to collect evidence and fill up the lacuna in his case. Finally she would point out that the suit has been pending for more than 5 years and whatever damage that the defendant would have caused to the cart tract, would have vanished by the lapse of time and hence, dismissed the said petition. Against the said order, the present civil revision petition arises.

8. Heard Mr.C.Ramaraj for the civil revision petitioner and Mr.N.S.Suganthan for the respondents 1 and 2.

9. Mr.C.Ramaraj would invite my attention to the plaint and the averments made in the affidavit and would contend that apart from documentary evidence, an additional way in which the plaintiff may prove the existence of cart tract is by appointment of Advocate Commissioner. He would state that dismissal of the application on the basis that the same is an attempt to fill up the lacuna is untenable and would hence plead that revision be allowed and the order be set aside.

10. Per contra, Mr.N.S.Suganthan appearing for the respondents 1 and 2 would submit that the suit is at the stage of examination of DW1 and at this stage, an Advocate Commissioner need not be appointed. He would further point out that, from the order of the learned Trial Judge, the application amounts to collection of evidence through the good office of the Advocate Commissioner and that, having failed to prove his case, the plaintiff is attempting to fill up the lacuna by filing this application. He would state that the existence of cart tract can be proved only by documents. Relying upon the pleadings in paragraphs 7 and 8 of the written statement, he would urge that the defendants have taken possession of the property