Marimuthu vs Natarajan

This Civil Revision Petition has been filed against fair and decreetal order dated 18.03.2015 in I.A.No.738 of 2014 in O.S.No.124 of 2012

passed by the Additional District Munsif, Ambasamudhram, dismissing the petition seeking re-issue of the Commissioner warrant to measure the

counter claim properties and to file the commissioner report and plan with the help of surveyor.

The case of the petitioner is that a memo was given to the learned commissioner to measure the counter claim properties and that the

commissioner has informed that she can measure the property stated in the warrant which according to the petitioner had put him into serious

prejudice. It is further contended that the commissioner has measured the property without documents and because of the non measurement of the

counter claim property, the commissioner failed to find out the encroachment made by the respondent/plaintiff. The dispute between the parties

would be enlightened only if the counter claim property was measured by the commissioner and therefore, he filed a petition to strike out the report

and plan of the commissioner and reissue the warrant to the commissioner to measure the counter claim property.

The respondent would submit that the commissioner has executed the warrant and measured the property as per the directions of the Court

below. The commissioner report has clearly answered the work memo given by the petitioner and according to the respondent, this petition was

filed only to protract the proceedings.

Perusal of the records shows that the commissioner has inspected the property as per the directions given by the learned Judge and there was

no direction to measure the counter claim property in the petition filed for appointment of advocate commissioner. The petitioner has not filed his

counter and he was set ex parte on 21.03.2013 and the commissioner was appointed only on 13.06.2013. So, when the commissioner was

appointed, the petitioner has never objected to the same. If at all the petitioner is aggrieved by the appointment of the advocate commissioner, he

could have atleast opposed to the same by filing his counter, but he has not done so and the commissioner cannot exceed the warrant issued by the

Court. One another objection raised by the petitioner was that the commissioner has not measured the property as per the documents which were

under the custody of the Village Administrative Officer. The order of the learned Judges does not show that the commissioner has to measure the

premises based on the documents under the custody of the Village Administrative Officer and direction was given to measure the property only

with the help of the surveyor and it has been rightly done by the commissioner and therefore, the interference of this Court is not necessary.

Though the petitioner has contended that he has asked for measurement of the counter claim property since there is a dispute between him and

the respondent in respect of boundaries, he did not raise his little finger while the commissioner warrant was issued. Considering the circumstances

of the case, this Court is not inclined to interfere with the impugned order of the Court below and there is no infirmity in the impugned order

warranting interference at the hands of this Court.