IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :27.01.2026 CORAM THE HONOURABLE MR.JUSTICE S.SOUNTHAR and CMP.No.16887 of 2024

1.Poorasu @ Poovarasu

2.Mottaiyappan @ K.Murugesan

3.K.Muthusamy

4.K.Velusamy ... Petitioners vs.

1.Palanisamy 2.Thangavel ... Respondents PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the fair and decreetal order dated 13.12.2021 passed in I.A.No.414 of 2021 in O.S.No.113 of 2016 on the file of the District Munsif Court, Avinashi.

For Petitioners : Mr.P.Santhosh For Respondents :Mr.M.Guruprasad

O R D E R

The Civil Revision Petition is filed challenging the order passed by the trial Court, dismissing the application filed by the petitioners seeking appointment of Advocate Commissioner.

2. The respondents herein filed a suit for permanent injunction restraining the petitioners/defendants from interfering with their enjoyment of the suit property. The petitioners filed counter claim and sought for declaration that the 4^th defendant was the absolute owner of the counter claim mentioned property (old No.325/B, R.S.No.325/B1 and 325/B2) and for recovery of possession. They also sought for injunction in respect of portion of the suit property. It is the specific case of the petitioners that just prior to filing of the suit, the plaintiffs tresspassed into the portion of the suit property and laid a cart track and in respect of the said portion, the defendants filed counter claim and sought for declaration and possession.

3. Pending suit, the petitioners filed an application seeking appointment of Advocate Commissioner to measure the suit property with the help of surveyor, the said application was dismissed by the trial Court.

Aggrieved by the same, the petitioners have come before this Court.

4. The learned counsel appearing for the petitioner would submit that the respondents have tresspassed into the portion of the suit property and laid a cart track. In order to find out the exact measurement of the encroached portion, appointment of Advocate Commissioner is absolutely necessary.

5. The learned counsel appearing for the respondents/plaintiffs would submit that earlier Advocate Commissioner was appointed by the trial Court and he also filed a report in 2016 itself. The petitioners detailed objection is sufficient and hence the filing of instant application seeking appointment of Advocate Commissioner and the same is not maintainable.

6. It is seen from the typed set of papers, earlier the Advocate Commissioner visited the suit property on 28.07.2016 at the instance of the plaintiffs and no notice was issued to the defendants. The defendants filed counter claim in the present suit along with written statement only on 21.03.2018. It is the case of the defendant, the plaintiff tresspassed into the portion of the suit property and laid the cart track.

7. It is also seen from the earlier Advocate Commissioner's report, he did not issue notice to the defendant at the time of local inspection. An appointment of ex-parte Advocate Commissioner and filing of the report by him without serving notice to the defendant would not prevent the petitioners/defendants from seeking appointment of Advocate Commissioner. After he entered appearance, he filed his counter claim. In view of the controversy involved in the suit with regard to the exact portion of the alleged encroachment mentioned in the counter claim, the appointment of Advocate Commissioner to measure the counter claim mentioned property i.e., old S.No.325/B, R.S.No.325/B1 and 325/B2 would help the Court to decide the controversy involved in the lis. Since the petitioners claim that the respondents tresspassed into the portion of the suit property and put up a cart track, it may not be possible for the petitioners to find out the exact measurement otherwise by employing the qualified Surveyor. Therefore, the Advocate Commissioner shall be appointed by directing him to measure the suit property (counter claim pro