K SIVACHALAM Vs. SUBBANNA GOUNDER

JUDGEMENT

(1.) 1. Civil revision petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 11.10.2007 passed in I.A.No,435 of 2005 in O.S.No,54 of 1998 on the file of the Court of the District Munsif, Palladam, Coimbatore District. Inveighing the order dated 11.10.2007, passed by the learned District Munsif, Palladam, Coimbatore District in I.A.No,435 of 2005 in O.S.No,54 of 1998, this civil revision petition is focussed.

(2.) HEARD the learned counsel for the petitioner. Despite printing the names, there is no representation for the respondents.

(3.) IN the said I.A. on the petitioner's side, the Surveyor Shanmuga Sundaram was examined as P.W.1 and the Advocate Commissioner Balasubramaniam was examined as P.W. 2. IN paragraph 18 of the order it is found recorded that P.W.1 deposed as though in S.No,536 on the south eastern side, the plaintiff made encroachment. However, P.W.2, the Commissioner in his deposition had set forth that there was no encroachment either in the plaintiff's land or the defendants' land. The crucial and significant point to be noted is that the suit property is not S.No,536 which belongs to the defendants as found set out in the order of the lower Court and in such a case, I am at a loss to understand as to how the lower Court could re-issue the Commissioner warrant so as to find out whether there is any encroachment. The plaintiff himself has not sought remedy to find out as to whether S.No,533 which happens to be the suit property is under any encroachment. The plaintiff being the dominus litis should prove before the trial Court that the suit property bearing S.No,533 is under his exclusive possession and enjoyment and whereupon alone the Court would be able to decide the lis in favour of the plaintiff. Here the plaintiff being the revision petitioner objects for the re-issuance of the commissioner warrant and in such a case, it is for the revision petitioner/plaintiff to prove the case before the lower Court and it is not for the defendants to pray for re-issuance of the warrant. The order of the lower Court also is vague at paragraph 21 of it. Hence for all these reasons, I am of the considered opinion that the order of the lower Court to re-issue the warrant is bad in law, accordingly it is set aside by allowing this civil revision petition. Consequently, the I.A shall stand dismissed. No costs. Consequently, connected miscellaneous petition is closed.