The court has the discretion to appoint a commissioner to make a local investigation under Order 26 Rule 10 of the Civil Procedure Code.

C.R.P.No.1868 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated :11.01.2023

CORAM

THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

C.R.P.No.1868

of

2020 &

C.M.P.No.11226 of 2020

Chandran

... Petitioner

Vs.

T.Shanthi

... Respondent

Civil Revision Petition is filed under Article 227 of the Constitution of

India against the Suo Motu Docket Order passed in I.A.No.202 of 2018 in

O.S.No.102 of 2018 dated 09.12.2019 on the file of the learned Subordinate

Judge, Ottacamund.

For Petitioner

: Mr.S.Elambharathi

For Respondent

: Mr.Lenin and Bhagya

O R D E R

The present Civil Revision Petition has been filed against the Suo

Motu Docket Order passed in I.A.No.202 of 2018 in O.S.No.102 of 2018

dated 09.12.2019 on the file of the learned Subordinate Judge,

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C.R.P.No.1868 of 2020

Ottacamund.

2. The brief facts of the case is as follows:

The petitioner is the defendant and the respondent is the plaintiff in

the suit in O.S.No.102 of 2018 and the said suit has been filed for

permanent injunction restraining the defendant from entering into suit

schedule property. The respondent filed an application in I.A.No.202 of

2018 in I.A.No.196 of 2018 for appointment of Court / Advocate

Commissioner to note down the physical features of the suit property along

with photographs in the suit property. The said application was allowed by

the court below directing the said Advocate Commissioner to measure the

property in S.No.H/3/54, an extent of 4-8/16 cents, to measure the same

and to identify and mark the 3 cents of land belonging to the petitioner /

defendant, which has been sold by the said Tathan and to measure the

same with the boundaries marking an extent of remaining 4 1/2 cents of

land belonging to the respondent / plaintiff. Since the present dispute is

with regard to the location of drainage or the pipeline, the court below also

directed the Advocate Commissioner to find out whether the said Drainage /

pipeline is situated in the 3 cents of land belonging to the petitioner /

defendant or in the 4 ½ cents of land belonging to the respondent / plaintiff.

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C.R.P.No.1868 of 2020

(ii) The said advocate commissioner also filed a report stating that the

registered document shows that the respondent / plaintiff has 4 ½ cents of

land and the extent of land of the petitioner / defendant is 3 cents and totally

7 ½ cents of land, as per the registered documents. Further, the total

extent of land in T.S.No.H/3/54 is 6.79 cents. As per the plan submitted by

the surveyor, the respondent / plaintiff is in possession of 4.48 cents of

land together with the building standing thereon and the petitioner /

defendant is in possession of 2.98 cents of land together with the building

standing thereon. Further, the Surveyor in his plan has delineated in Yellow

colour and shown the same as drainage area measuring 149 sq.feet or 0.34

cents, he states that there is no place for drainage or pipeline on the surface

of the land of the petitioner or the respondent and filed the sketch and

photographs also.

(iii) The objections were filed by the petitioner / defendant stating that

the surveyor failed to furnish the details of 0.34 cents without furnishing the

length and breadth of it. Further, the perusal of the sketch attached to the

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C.R.P.No.1868 of 2020

petitioner's defendant's sale deed dated 05.05.1995 bearing no.541 of 1995

would reveal the fact that the southern boundary of the

petitioner/defendant's property and that of the respondent/plaintiff's property

is a straight line without any deviation. But the sketch shows deviation

which is incorrect and erroneous.

(iv) The court below after considering the pleadings and objections

filed in I.A. 202 of 2018 had directed the Advocate Commissioner to find

out whether the sa