PALANISAMY Vs. P AYYANAR

JUDGEMENT

(1.) INVOKING Art. 227 of the Constitution of India, this revision is directed against the order passed in I. A. No. 857 /2003 in O. S. No. 61/2002, dated 04. 08. 2003, by the Principal District Munsif Court, Salem, allowing the application filed under Or. 26, R. 9 CPC appointing the Advocate Commissioner. Defendants are the Revision Petitioners.

(2.) O. S. NO. 61/2002:-PLAINTIFFS 1 to 3 are the sons of Perumal Gounder. Defendants 1 and 2 are the husband and wife and are neighbours to the Plaintiffs 1 to 3. Case of the Plaintiffs is that their father had purchased the suit property for Rs. 3,000/- from the predecessor in title on 31. 10. 1973. After the purchase, the Plaintiffs' father Perumal Gounder was in enjoyment of the same. He died intestate and after his death, the Plaintiffs were in enjoyment of the suit property. Plaintiffs 1 to 3 are the absolute owners of the suit properties. Plaintiffs 1 to 3 have put up three houses in the suit properties. The first Plaintiff had constructed a terraced house and the Plaintiffs 2 and 3 have put up tiled house in the suit properties. As per the family arrangement, the suit property had been shared among the three Plaintiffs. The Plaintiffs have left 3- feet vacant space along their northern wall for the maintenance of their northern wall. The Defendants while proceeding with the construction has attempted to encroach upon the land of the Plaintiffs on the northern side. The Defendants have been attempting to grab the property on the northern side to cause wrongful loss to the Plaintiffs. Hence the Plaintiffs have filed the suit for permanent injunction restraining the Defendants 1 and 2 from in any way trespassing into the northern side property and causing disturbance to the Plaintiffs' possession and enjoyment.

(3.) DENYING the averments in the plaint, the Defendants have filed the Written Statement denying the family arrangement between the Plaintiffs. The Defendants had not encroached upon the property, much less of the Plaintiffs'. Since the Plaintiffs had encroached and obstructed the rights of the Defendants, the first Defendant has filed O. S. No. 196/2002 on the file of the District Munsif Court, Salem. The Plaintiffs have no property further north of their northern wall. They have already sufficiently encroached upon the Defendants' property and the property of the public. The Plaintiffs have no right either on the eastern portion or on the northern side. The Plaintiffs never had any access to the northern side of their wall. On the eastern side, the Plaintiffs have right to access and the same is left for public use and occupation. After the suit was filed, under the guise of exparte order of injunction, that too for the different property, the Plaintiffs are attempting to encroach upon the Defendants' property.