SHREE VISHWOTHAMA THEERTHA SWAMIGAL Vs. H BALARAJ

JUDGEMENT

(1.) PETITIONER has called in question the order passed by the civil Judge (Sr. Dn.), Karwar, on I. A. No. 5 dated 14-9-2006 in R. A. No. 40/1999 whereby the lower appellate Court has allowed the application filed by the respondent under O. 18, R. 18 of the code of Civil Procedure.

(2.) PETITIONER was the plaintiff in O. S. No. 66/1987 on the file of the Civil Judge (Jr. Dn.), karwar. The suit was for permanent injunction restraining the defendant/respondent or his family members or any person claiming on his behalf from entering or trespassing into the suit land or interfering with his peaceful possession, occupation and enjoyment of the suit land i. e. Sy. No. 23/1 measuring 8 acres 24 guntas of Belur village in Karwar Taluk. It is the case of the defendant that he has been in possession and enjoyment of two acres of land out of the above 8 acres 24 guntas of land. It is also his case that the area in his possession consists of a house constructed by him, a well and standing trees and that he has fenced the said land. It was his contention that he has perfected title to the said two acres of land by adverse possession. The Court below decreed the suit on 4-3-1999. Feeling aggrieved by the said judgment and decree, the respondent filed the appeal in R. A. No. 40/ 1999 before the lower appellate Court. The lower appellate Court by its order dated 19-12-2002 set aside the judgment and decree of the trial Court and remitted the matter to the trial Court for fresh consideration. The said order was challenged by the petitioner herein before this Court in MSA No. 109/2003. This court by the order dated 2-6-2005 set aside the said order and remitted the matter to the lower appellate Court with a direction to pass fresh order on merits in accordance with law. The operative portion of the said order is as under :

(3.) AFTER remand, the respondent filed two applications. I. A. No. 4 filed under Order 26, rule 9 of the Code of Civil Procedure for appointment of a Court Commissioner for spot inspection of the suit land. The second application-I. A. No. 5 is under O. 18, R. 18 of the code of Civil Procedure requesting the Court to inspect the suit property. The lower appellate Court has rejected I. A, No. 4 and has allowed I. A. No. 5. Feeling aggrieved by the order on I. A. No. 5, petitioner has filed this writ petition.