Judgment:
(Prayer: Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 08.07.2015 in I.A.No.838 of 2014 in O.S.No.105 of 2014, on the file of District Munsif Court, Kulithalai.)
1. As only a short point is involved, we shall dispose of this revision today in the admission stage itself.
2. The respondents filed the suit in O.S.No.105 of 2014 in the District Munsif's Court, Kulithalai, Karur District. In the suit, they sought for injunction with respect to the property compromised in S.No.541/11 bearing door No.7/15, Service Connection, namely 050-024-377. The defendants filed written statement resisting the suit stating that they are in the suit property and in the written statement description of the suit property has been furnished. In the written statement Survey Number, Door Number and Service Connection are also given.
3. It is pertinent to note the description of property given in the suit schedule and in the description of property given in the written statement are not one and the same. They differ. In the circumstances, the second defendant filed I.A.No.838 of 2014 for appointment of Advocate/Commissioner to note down the physical features with the help of a qualified surveyor.
4. The trial Court dismissed the said I.A. on the ground that no document in support of the description of the property mentioned in the written statement has been given and the plea raised by the defendants has to be proved at the time of trial.
5. The learned counsel for the revision petitioner would submit that description of the property and physical features has been given both by the plaintiffs and the revision petitioner in their respective plaint and written statement. Injunction is sought for with respect to property described in the plaint schedule. It was opposed to by the defendants and the reasons have been stated in the written statement. A description of property has also been appended in the schedule to the written statement. In such circumstances, the learned counsel for the revision petitioner would submit that report by an advocate/commissioner will assist the Court to render a correct finding with respect to the property mentioned in the suit schedule. That cannot be done through any oral evidence. He would also submit that the second defendant filing of document in support of his plea in the written statement is pre-nature as the trial of the suit has not been taken up. In the circumstances, dismissal of the I.A. for appointment of Advocate/ Commissioner is not in accordance with law.
6. I have anxiously considered the submissions made by the learned counsel for the revision petitioner, perused the materials on record and the impugned order.
7. The principle of law stated by the trial Court in the impugned order that who is in possession has to be proved by the parties by relevant document is correct. But application of the principle depends on the stage of suit, type of the suit and the averments raised in the petition and counter. Now, this suit for injunction specific description of property has been given in the plaint schedule and the defendants in their written statements contradicts the said identity of the property and to strengthen his case he would also furnish his property schedule.
8. In the facts and circumstances, dispute as to the physical features and identity of the property is involved. That cannot be established before the Court by any amount of oral evidence. In such circumstances, report of Advocate/Commissioner as to the said aspect will assist the Court in taking a correct decision. It will also be beneficial to both sides. In this view of the matter, the view taken by the trial Court in I.A.No.838 of 2014 is perverse and it warrants our interference.
9. In the circumstances ordered as under:
(i) The order of dismissal passed by the District Munsif, Kulithalai in I.A.No.838 of 2014 in O.S.No.105 of 2014 is set aside.
(ii) The trial Court will appoint an Advocate/Commissioner to inspect the suit property, note down the physical features of the property mentioned in the plaint schedule and in the written statement schedule with the help of a qualified surveyor and will file his report.
(iii) The trial Court will give two weeks time to both sides to file their objection, if any to the report of the Advocate/Commissioner.
(iv) Fee for the Advocate/Commissioner and Surveyor shall be paid by the revision petitioner.
10. Accordingly, this Civil Revision Petition is disposed of. No costs. Consequently, connected M.P.(MD) No.1 of 2015 is closed.