C.R.P.(PD) (MD) No.1793 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 19.11.2021

CORAM:

THE HONOURABLE MS.JUSTICE P.T.ASHA

C.R.P.(PD) (MD) No.1793 of 2021

and

C.M.P.(MD) No.9632 of 2021

M.Murugesan

.. Petitioner/Petitioner/1^st Defendant

-vs-

P.Rajaraman

.. Respondent/Respondent/Plaintiff

Prayer :- Petition filed under Article 227 of the Constitution of

India against the order dated 19.07.2018 passed in I.A.No.960 of

2015 in O.S.No.116 of 2015 on the file of learned Additional

District Munsif Court, Dindigul.

For Petitioner

:

Mr.M.P.Senthil

ORDER

The petitioner/1^st defendant is before this Court challenging

the order dated 19.07.2018 passed by the Additional District Munsif,

Dindigul in I.A.No.960 of 2015 in O.S.No.116 of 2015 insofar as

under the order, the learned District Munsif had not appointed the

VAO and Surveyor to assist the Advocate Commissioner for measuring

the properties.

2.In order to appreciate the grounds of revision, a brief

prelude to the same has to be narrated herein below.

3.The respondent/plaintiff had filed the above suit for a

declaration in respect of his 1/3 share in the well situate in

S.No.501/8C, the vacant site around the well and the properties in

S.Nos.501/10A and 501/8D and for a permanent injunction restraining

the defendants from interfering with the respondent's right to draw

water from the well in S.No.501/8C to his lands in S.Nos.501/10A and

501/8D through the lands belonging to the defendants comprised in

S.Nos.501/8A, 501/7, 801/6C and 801/6B to the plaintiff's lands in

S.Nos.501/6A, 501/5B, 501/4D, 501/3B and 501/2B.

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C.R.P.(PD) (MD) No.1793 of 2021

4.The petitioner/1^st defendant had filed his counter and

thereafter, had come forward with the application in I.A.No.960 of

2015 to appoint an Advocate Commissioner to note down the physical

features of the suit property with the help of the VAO and Surveyor

and measure the same.

5.In the affidavit filed in support of the application, the

petitioner would state that in reality, there is no channel in

existence in the petitioner's land to draw water from the well

situate in S.No.501/8C to the lands comprised in 501/6A, 501/5B,

501/4D, 501/3B and 501/2B. He had further contended that the

plaintiff had not properly described the channel through which water

was being drawn by him. He would, therefore, seek to have an

Advocate Commissioner appointed to measure the properties comprised

in various sub divisions of S.No.501 and submit a report apart from

noting the physical features.

6.The learned District Munsif, Dindigul on hearing both the

parties, took a view that since the issue was only with reference to

the existence of the channel, it would suffice, if an Advocate

Commissioner is appointed to note down the physical features and

there was no necessity to measure the properties. The learned

District Munsif, therefore, had appointed only an Advocate

Commissioner. It is this portion of the order, that is, now subject

matter of challenge in this revision.

7.The learned counsel for the petitioner would vehemently argue

that the measurement of the lands comprised in S.No.501, now sub-

divided into various sub divisions, is essential to arrive at a

solution to the issue involved in the suit.

8.Heard the learned counsel for the petitioner and perused the

records.

9.Mere perusal of the relief sought for by the

plaintiff/respondent in the suit in O.S.No.116 of 2015 clearly

indicates that the plaintiff/respondent was claiming a right to use

the channel described in the schedule to the property running

through various survey numbers for taking water from the well

situate in S.No.501/8C to his lands through the lands of the

defendants. The defence is that the ch