KU PALCHAMY Vs. COMMISSIONER

JUDGEMENT

(1.) THE Plaintiffs in O. S. No. 71 of 2002 on the file of District Munsif Court, uthamapalayam are the Revision Petitioners. Aggrieved over the order of dismissal of their Application dated 01. 09. 2003 in I. A. No. 444 of 2003 in o. S. No. 71 of 2002 dismissing their application filed under Or. 29 R. 9 and Sec. 151 C. P. C. declining to appoint Advocate-Commissioner, the Plaintiffs have preferred this Revision Petition.

(2.) RELEVANT facts for disposal of this Revision could briefly be stated thus: The Suit Property relates to T. S. No. 12/1 Kambam Town, uthamapalayam Taluk. The Plaintiffs claimed to represent Devendrakula Vellalar of Kambam. Case of the Plaintiffs is that the Suit Property within the four boundaries thereon has been received by Devendrakula Vellalar Community as a burial Ground for more than 100 years. Every year, the Community people perform rites for the dead. On the Western Side of the Suit Property, Bus Stand of Kambam town is located. Kambam Municipality has proposed to extend the Bus Stand. Under the guise of extending the Bus Stand, the Municipality is trying to encroach upon the Suit Property. Alleging that if the Municipality encroaches upon the Suit Property, it would cause serious prejudice to the Plaintiffs' community people, the Plaintiffs have filed the Suit for Permanent Injunction restraining the Defendant-Municipality from in any way interfering with their possession of the Suit Property.

(3.) ASSAILING the impugned order, the learned counsel for the Revision Petitioners/plaintiffs submitted that the Lower Court has not properly appreciated the scope of the Application, in which the Plaintiffs have sought for appointment of Advocate-Commissioner to note down the physical features. The learned counsel has further submitted that in the light of the dispute between the parties, noting down the physical features is very much essential to adjudicate the matter in issue. Submitting that in a suit for permanent Injunction, where the Plaintiffs have alleged, attempt of encroaching by the Defendant, the learned counsel contended that the Lower Court ought to have allowed the Application appointing the Advocate-Commissioner. In support of her contention, the learned counsel has placed reliance upon AIR 1996 Kerala 276 (Payani Achuthan V. C. h. Fisheries Development Co-operative Society)