R NARASHIMMACHARI Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) THIS revision is preferred against the order passed in i. A. No. 855/2002 in O. S. No. 1352/85 on the file of the Additional District munsif, Madurai Town , dismissing the Petition filed under Or. 26, R. 9 CPC, seeking for appointment of second Advocate Commissioner.

(2.) O. S. No. 1352/1985: - The suit property relates to 15 cents in Eastern Portion of T. S. No. 2431/4. Case of the Plaintiff is that suit property along with T. S. No. 2432 on the Eastern side comprising an extent of 99 cents was allotted to his share in the family partition between the Plaintiff and his father and brothers on 31. 7. 1949. Ever since the date of partition, the plaintiff has been in possession and enjoyment of the property by paying kist etc. and that the property was used as cultivable land about 5-6 years prior to the filing of the suit, the suit property and the surrounding places had become pucca house sites and constructions were put up. Without any right or interest in the suit property, the Defendants have encroached the suit property and put up the construction. When being questioned, the Defendants have stated that they have purchased the property from one Chokkalingam Pillai S/o Ramasamy pillai. When the Plaintiff has measured the land with the help of surveyor, it was noted that the Defendants have encroached upon the property and have put up unauthorised constructions. The Defendants have joined together and wrongfully trespassed upon the suit property claiming title through Chokkalingam Pillai. Hence the Plaintiff filed suit against all the Defendants for recovery of the possession and for mesne profits.

(3.) UPON consideration of the rival contentions, the learned District Munsif dismissed the Petition on the following grounds: - " (i) Already a comprehensible Commissioner Report is available; (ii) Application for appointment of Advocate Commissioner has been filed belatedly when the case is in part heard; (iii) Without setting aside the earlier report, Petition for appointment of another Advocate Commissioner is not maintainable".