EFIGENIO DIAS Vs. MALAQUIAS DCOSTA

JUDGEMENT

(1.) THE petitioners challenge order dated 21st January 1999 of Civil Judge, Senior Division, Margao, whereby Court Commissioner was ordered to be appointed under Order XXXIX, Rule 7 C. P. C.

(2.) IN order to appreciate the controversy between the parties it is necessary to state the background in which this application was filed. The petitioners (plaintiffs) had filed a suit for permanent injunction seeking to restrain the respondents (defendants) from in any manner entering and interfering in the suit property under Survey No. 39/40. An application for temporary injunction was filed in the said suit seeking to restrain the respondents from taking forcible possession of portion of property to make an access leading to their property. The defendants made a counter-claim claiming the suit access through the property of the plaintiffs and sought restrain on the plaintiffs from obstruction of the suit access. The Civil Judge had dismissed the plaintiffs application and respondents application was allowed. The trial Court by a cryptic and non-speaking order had disposed of the application for injunction filed by the parties and by order dated 22nd January 1998 in Appeal from Order Nos. 1 and 2 of 1998 the matter was remanded to the trial Court for fresh disposal. On remand the Civil Judge granted the injunction application of the plaintiffs and dismissed the injunction application of the defendants. This order was subject matter of challenge in Appeal from Order No. 53 of 1998 filed by the defendants. By order dated 16th July 1998 in the said Appeal from Order No. 53 of 1998 it was held that in the absence of requisite pleadings, the defendants could not succeed in proving their alleged right of way and the Civil Judge had rightly pointed out that the defendants had another way available to have access to the road inasmuch as the sketch maps produced show the situation of the properties of both the parties. It was further pointed out in the said order that the defendants were owners in possession of Survey No. 39/17 having an access to approach the road on the North and the said access passes through the properties bearing Survey Nos. 39/12 and 39/15 on the East and Survey Nos. 39/11 and 39/14 on the West.

(3.) THE application in question under Order XXXIX, Rule 7 read with section 151 of C. P. C. was filed on 19th September 1998 by the defendants. In this application it was alleged that in view of the restraint order passed by the Court from passing through Survey No. 39/40, that is to say, through the plaintiffs property, the defendants are unable to come out of their house and the only alternative is to jump the compound walls and to come to the main road which the defendants are now doing. It was further stated in the application that since the plaintiffs claim that the access passing through Survey Nos. 39/12 and 39/15 is being used by the defendants, it is essential that a Commissioner be appointed in order to inspect the site and report about the so called alleged access pleaded by the plaintiffs and as shown in the sketch produced by them. Accordingly, it was prayed in the said application that a Commissioner be appointed to inspect the site and report about the existence of the access as shown in the sketch by the plaintiffs.