Ayyasamy vs Ramayee

K. Ravichandrabaabu, J.—The present Civil Revision Petition is filed challenging the order made in I.A.No. 92 of 2014 in O.S.No. 686 of 2007, dated 17.06.2014 on the file of the learned II Additional District Munsif, Kallakurichi, in dismissing the application filed by the petitioner seeking for appointment of Advocate Commissioner.

The petitioner is the defendant in the said suit and the respondent is the plaintiff. The said suit was filed by the respondent seeking for the relief of declaration and permanent injunction. The said suit was dismissed after trial and thereafter the aggrieved party filed an appeal before the Appellate Court, which in turn remanded the matter to the trial court for considering the issue of adverse possession claimed by the petitioner/ defendant. When the matter was taken up after remand, an Interlocutory Application was filed by the petitioner/ defendant seeking for appointment of an Advocate Commissioner. The Court below has rejected the application by holding that there is no dispute with regard to the description of the suit property and under such circumstances the appointment of Advocate Commissioner, that too, at the instance of the defendant is not at all warranted.

Heard Mr.Silambu Selvan, learned counsel for the petitioner and perused the material placed before this Court.

The petitioner is the defendant in the said suit and seek for appointment of Advocate Commissioner after the matter was remanded back by the Lower Appellate Court to the trial court only for deciding the issue of adverse possession. It is needless to say, when the suit is filed for declaration of injunction, it is for the plaintiff to establish his case before the Trial Court and the petitioner being the defendant cannot take out an application for appointment of Advocate Commissioner, especially when the Lower Appellate Court has remanded the matter only for the purpose of giving a finding with regard to the question of adverse possession. If the petitioner claims that he is in possession of the property, adverse to the interest of the plaintiff, he has to prove the same only by documentary evidence and not by appointment of Advocate Commissioner, which in my considered view is nothing but unnecessary. I find no infirmity or irregularity in the order passed by the Trial Court.

Accordingly, the Civil Revision Petition fails and the same is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. No costs.