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Judgment
Honourable Mr. Justice G. Rajasuria
This Revision is filed as against the order passed in I.A. No. 223 of 2012 in O.S. No. 47 of 2012, dated 05.07.2012, on the file of the District Munsif Court-cum-Judicial Magistrate Court, Sivagiri. Learned counsel for the revision petitioner inviting the attention of this Court to the records, would advance his arguments, which could pithily and precisely be set out thus:
The plaintiff filed the suit for injunction with regard to the suit property described in the Schedule of the plaint. The defendant entered appearance and filed the written statement. Whereupon, the plaintiff filed I.A. No. 223 of 2012 for getting the Commissioner appointed to note down the physical features of the suit property. After hearing the arguments advanced, the Lower Court dismissed the application. Being aggrieved by and dissatisfied with the same, this Revision has been filed on various grounds.
Learned counsel for the revision petitioner would put forth his arguments to the effect that the Lower Court misunderstood the scope of the Commission sought for. The petitioner did not want the Commissioner to find out as to who was in possession of the suit property. The plaintiff simply wanted the Commissioner to be appointed to note down the physical features which can be done even in the injunction suit.
A plain reading of the order of the Lower Court would exemplify and demonstrate that the Lower Court plausibly pointed out that the suit itself was not one for declaration of title and in such a case the petitioner/plaintiff cannot try to fish out evidence by getting such Commissioner appointed. A plain reading of the averments in the plaint would show that in paragraph No. 5 of the plaint, it is found stated thus:
Therefore, it is crystal clear that the plaintiff lays claim over the suit property based on his adverse possession, by virtue of his alleged long enjoyment for over two decades. The plaint also discloses the dispute erupted between the plaintiff and the defendant over the suit property. In such a case, as per the decision of this Court in the case of Chinna Nachiappan and another v. PL. Lakshmanan, reported in 2007 (4) CTC 70, the plaintiff should have asked for declaration of his title to the suit property which he failed to do so. In such a case, having failed to file appropriate suit with a proper prayer, he cannot simply try to get the Commissioner appointed for noting the physical features. The apple of discord between the parties is title dispute. Over and above that, they are at loggerheads relating to demarcation of the suit property. Therefore, I am of the view that no interference with the order of the Lower Court is warranted. It is open for the petitioner to take appropriate legal steps to get the plaint amended. Depending upon the scope of the suit alone, the Commissioner appointment can be sought for. The Civil Revision Petition is disposed of accordingly. Consequently, M.P. (MD) No. 1 of 2012 is closed. No costs.