An application for appointing an Advocate Commissioner must comply with procedural requirements and cannot independently establish evidence without involving all concerned parties in property disputes.

ORDER

Challenge has been made to the order passed by the VII Additional Judge, City Civil Court, Chennai in C.M.P. No.1222 of 2017 dismissing the application filed under Order 26 Rule 9 of CPC to appoint an Advocate Commissioner to inspect the suit property to identify the illegal structure said to have been put up by the 4th respondent over the passage of 40 feet width leading from Gandhi Road to residential complex, by name, Sakthi Towers.

2. The suit in O.S.No.2740 of 2011, on the file of the IV Assistant City Civil Court, Chennai, has originally been filed by the revision petitioner/plaintiff for mandatory injunction for removal of an extent of 1216 sq.ft land in passage of 40 feet width leading to Sakthi Towers Residential Complex from main road at No.107 to 109, Gandhi Road, Velacherry.

3. According to the revision petitioner/plaintiff, he has purchased an extent of 530 sq.ft. of undivided share of land out of a total extent of 32,274 sq.ft, for which, the 4th defendant had already obtained a plan on 02.06.1990 for constructing a residential complex of flats consisting of ground floor, first floor, second floor and third floor. The revision petitioner/plaintiff has entered into an agreement with the 4th defendant for constructing a residential flat. According to the revision petitioner/plaintiff, in collusion with the office bearers of the 3rd defendant, the 4th defendant has illegally put up construction to an extent of 1216 sq.ft, on the place which is earmarked as passage. Therefore, he sought to demolish that area said to have been constructed by the 4th defendant.

4. The suit was contested by the defendants 3 and 4 and was dismissed by the Trial Court on 10.03.2017, after contest, holding that the original owners, who purchased the property have not been included as parties to the suit, and the 4th defendant is merely a builder, who has constructed the building as per the plan obtained by the earlier owner. Against which, the appeal has been preferred by the revision petitioner/plaintiff in A.S.No.175 of 2017, on the file of the VII Additional City Civil Court, Chennai. In the said appeal, a petition in CMP No.1222 of 2017 has been taken out to appoint an Advocate Commissioner to identify the illegal construction put up by the 4th respondent. Whereas, the First Appellate Court has rejected the claim of the petitioner and dismissed the petition vide order dated 13.07.2018 . Challenging the same, the present revision has been filed.

5. It is the contention of the learned counsel for the petitioner that the petition for appointment of Advocate Commissioner has been filed in order to ascertain the illegal construction put up on the passage of the entire premises.

6. According to the learned counsel, an extent of 1216 sq.ft has been illegally encroached upon, and construction has been put up on the passage. Therefore, the petitioner, being the purchaser of the flat, is entitled to question such unauthorized activities. Unless a Advocate Commissioner is appointed, the said illegal construction would not be brought to the notice of the Court.

7. The learned counsel for the 4th respondent would submit that the revision petitioner has purchased the property only in the year 2002, whereas, the construction was happened in the year 1998. The further contention of the learned counsel is that the subject property has been already sold to third parties, namely, Mrs.Rajeswari and Mr.Rajagopal, but they have not been made as a party. Hence, he vehemently opposed the petition.

8. Heard both sides and perused the materi