O R D E R

This revision is preferred as against the order passed in I.A.No.01 of

2023 in O.S.No.10 of 2023, dated 15.06.2023 on the file of the District Munsif Court, Theni.

2. The above suit in O.S.No.10 of 2023 was filed by the respondents

1 and 2/plaintiffs for the relief of declaration of title and permanent injunction and also mandatory injunction in respect of the first schedule in the suit property. During the pendency of the suit, the respondents 1 and 2 filed an application for appointment of an Advocate Commissioner in I.A.No.01 of 2023 and the same was allowed by the trial Court. Aggrieved by this, the revision petitioner/defendants have preferred the above revision by stating that the respondents 1 and 2 are claiming a pathway in Survey Nos. 193/3H, 193/3I and 193/3J in the southern side. It is further submitted that the said land is the patta land as per the revenue records and it is not a common pathway and the same is used by the revision petitioners and the respondents 3 to 6 as their own pathway. His further submission is that as per the revenue records, the said land is classified as patta land belonging to the petitioners and the respondents 3 to 6 and they are in exclusive possession and enjoyment of the same. The FMB clearly shows that the said land is a patta land and there is no common pathway earmarked. The respondents 1 and 2 are illegally claiming the said pathway as common pathway without any documents to substantiate the same. However, the trial Court, without considering the above facts, mechanically allowed the the above application by appointing an Advocate Commissioner, which is liable to be set aside.

3. The learned counsel for the petitioners would further submit that Advocate Commissioner cannot be appointed for collecting evidence to prove the possession. By quoting the decision case in R.Sathya Narayana Rao and three others Vs M.K.Manoharan @ K.Manoharan and another reported in 2003 (3) L.W 787, he would contend that when a Commissioner has been appointed unnecessarily and when the trial Court has passed that order without taking into consideration the pleadings in the case, and without considering the fact whether such an appointment of Advocate Commissioner is necessary, it can certainly be said that the Court has acted illegally. The learned counsel also relied upon the decision rendered in Muthusamy Gounder vs Mylsamy Gounder reported in 2006 (4) LW 522, in which it is held as follows:-

The lower Court has gone beyond the scope of the powers under Order 26 Rule 9 and has exceeded in its jurisdiction. Since the Revenue Officials have already demarcated the area and fixed stones dividing the property of the petitioner and the respondent, no purpose will be served in inspecting the property with the help of a surveyor to note down the physical features in the suit for permanent injunction. He also made a reference to the order passed in CRP(MD) No.26 of 2019 in support of his contention.

4. On the other hand, the learned counsel for the respondents 1 and 2 would submit that being a suit for declaration and permanent injunction and for mandatory injunction to remove the alleged encroachment made by the petitioners, it is necessary to appoint an advocate commissioner for which it has been sought for. He would further contend that the report of the Advocate Commissioner would certainly assist the Court to have an effective adjudication of the dispute between the parties and therefore, the appointment of Advocate Commissioner to find out the existence of the pathway, cannot be said to prove the possession. Since there is obstruction in the suit pathway, the respondents 1 and 2/plaintiffs have come forward with the application for appointment of Advocate Commissioner. He would further submit that the report of the Commissioner would definitely enable the Court to come to the conclusion regarding the existence of pathway. To support his contention, he has relied upon the orders passed by this Court