O R D E R

This Civil Revision Petition was filed challenging the fair and decreetal order passed in I.A.No.331 of 2016 in O.S.No.386 of 2007 dated

20.10.2016 passed by the learned District Munsif Court, Udumalpet.

2. The revision petitioner is the plaintiff in the suit in O.S.No.386 of

2007 which has been filed for permanent injunction, restraining the defendant from interfering with the peaceful possession and enjoyment of the property and the application in I.A.No.331 of 2016 in O.S.No.386 of 2007 was filed under Order XXVI Rule 9 r/w section 151 of Civil Procedure Code by the revision petitioner/plaintiff for appointment of Advocate Commissioner. 3. Respondent viz., A.Selamuthu is the defendant in the Suit in O.S.No.376 of 2007 and the application in I.A.No.107 of 2008 in O.S.No.376 of 2007 was filed under Order XXVI Rule 9 r/w section 151 of Civil Procedure Code by the respondent/defendant for appointment of Advocate Commissioner and the same was allowed by the Trial Court in its vide order dated 21.06.2011 and appointed an Advocate Commissioner to measure the suit schedule property with the aid of Taluk Surveyor and further directed to visit the suit schedule property by giving notice to both the parties. The Advocate Commissioner was directed to file her report with the plan by 21.06.2011. The trial Court in its order dated 06.01.2016 dismissed the I.A.No.107 of 2008 in O.S.No.376 of 2007 and the relevant portion is extracted as follows:

‘ The suit is filed of the year of 2007. The Advocate Commissioner was appointed in the year 2011. Till date no steps have been taken to indicate the pending. No representation of the Advocate Commissioner on the petitioners' the application this trial proceedings are unnecessarily stopped for more than 4 years. As such the court finds no reason to adjourn the application. Both sides are not ready to cooperate to the Advocate Commissioner to execute the warrant. As such the petition is closed. At this stage. No costs.’

4. Subsequently, the revision petitioner/plaintiff filed the application in I.A.No.331 of 2016 under Order XXVI Rule 9 r/w section 151 of Civil Procedure Code for appointment of an Advocate Commissioner to measure the suit schedule property with the aid of Taluk Surveyor.

5. Heard the learned counsel for the petitioner/plaintiff and perused the material documents available on record.

6. The respondent/defendant filed the suit in O.S.No.376 of 2007 against the revision petitioner/plaintiff, praying for permanent injunction, restraining the revision petitioner/plaintiff from interfering with the peaceful possession and enjoyment of the suit schedule property.

7. Whereas, the suit in O.S.No.386 of 2007 has been filed by the revision petitioner/plaintiff against the respondent/defendant, praying for permanent injunction, restraining the respondent/defendant from interfering with the peaceful possession and enjoyment of the suit schedule property.

8. It is apparent that the prayer in I.A.No.107 of 2008 in O.S.No.376 of

2007 and I.A.No.331 of 2016 in O.S.No.386 of 2007 are one and the same. Since, the relief sought by both the parties are one and the same, an Advocate Commissioner was appointed in I.A.No.107 of 2008 in O.S.No.376 of 2007 and the application was dismissed by the Trial Court on 06.01.2016 stating that there was no co-operation from either side of the party.

9. In the sale deed dated 08.12.1982 executed in favour of the respondent/defendant the rights in regard to the pathway is clearly mentioned. Hence, there is no necessity to appoint an Advocate Commissioner.

10. On perusal of the records, it is clear and evident that both the suits viz., O.S.No.376 of 2007 and O.S.No.386 of 2007 are filed for the same relief that is for a permanent injunction. So far as, in regard to the relief of permanent injunction, the issue to be decided is whether the suit schedule property is in possession of the revision petitioner/plaintiff or not. It is a well settled law, an Advocate commissione