ORDER

The plaintiff, who is the revision petitioner, is challenging the dismissal of his application seeking appointment of an Advocate Commissioner to measure the suit property with the qualified Surveyor and for a direction to submit the report.

2.The brief facts preceding the filing of the above Civil Revision Petition are herein below set out.

3.The petitioner/plaintiff has filed a suit in O.S.No.340 of 2017 for bare injunction restraining the defendants, their men, agents, servants and others from interfering with his peaceful possession and enjoyment of the suit property.

4.The learned counsel on behalf of the plaintiff would submit that the suit property, which is a Natham Land, belonged to the plaintiff's grandfather, namely, N.Karuppannan, who has been in an uninterrupted possession and enjoyment of the property for over so many years and recognizing the long possession and enjoyment, the Revenue Authorities had granted patta in the name of N.Karuppannan under patta No.1707. The said N.Karuppannan had settled the property on the plaintiff, his granddaughter out of love and affection. The possession of the property was also handed over to her on the date of execution of the settlement deed ie., 26.09.2005. Pursuant to this settlement deed, the plaintiff has been in possession and enjoyment of the property and had obtained mutation of the revenue records and had also got the property tax, water tax etc transferred in her name. While so, the defendants who are utter strangers having no title or interest over the suit property started interfering with the plaintiff's enjoyment of the same and on 10.08.2017, had illegally trespassed into the property and threatened the plaintiff. This was, very great difficulty, averted by the plaintiff. Since the threat of the defendants was a continuing one, the plaintiff had come forward with the present suit.

5.The defendants had filed a written statement interalia denying the claim of the plaintiff and stating that incorrect measurements have been given by the plaintiff. The defendants/respondents had taken a stand that the plaintiff had raised a compound wall on the Eastern side of the property and the property of the defendants is situated immediately East of the North-South Tar Road and East of this property is the property owned by the plaintiff.

6.The defendants would submit that the property owned by them is not a perfect square and has an uneven measurement. Therefore, while constructing the property and following Vasthu, the plaintiff had constructed his compound wall inside his property by leaving a portion of his property outside the compound wall ie., the defendants had left a vacant space to the East of the compound wall. This space was being utilized to attend to the white washing and repairs of the wall. The vacant space measured 1 feet in width at the Northern end of the compound wall and as it proceeds towards South, the width of the vacant site increased and at the Southern tip, it measured 5 feet in width. While putting up the construction, the plaintiff attempted to encroach upon this place and this was objected to by the defendants and hence, the suit.

7.The defendants would contend that there is no cause of action for filing the suit.

8.Pending the suit, the plaintiff came forward with the impugned application. The defendants/respondents had objected to the said petition interalia contending that in a suit for bare injunction, an application for appointment of an Advocate Commissioner was unheard-of, so that the plaintiff cannot use the Advocate Commissioner to gather evidence.

9.The learned Additional District Munsif, Karur, by the order dated

06.01.2021 was pleased to dismiss the said application and challenging the same, the petitioner is before this Court.

10.The learned Judge relying on the judgment of this Court reported in

2012 (5) LW 300 (Santha Satheesh Vs. H.J.Walter and others) held that the Advocate Commissioner cannot be appointed to gather evidence and further,