1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.2223 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Kalyani .. Petitioner Vs. Lakshmi .. Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 18.08.2011 passed in Interlocutory Application No.148 of 2011 in Original Suit No.340 of 2010 by the District Munsif Court, Pudukkottai. For Petitioner : Mr.S.Deenadhayalan ORDER The order dated 18.08.2011 passed in Interlocutory Application No.148 of 2011 in Original Suit No.340 of 2010 by the District Munsif Court, Pudukkottai is being challenged in the present Civil Revision Petition. 2. The respondent herein as plaintiff has instituted Original Suit No.340 of 2010 on the file of the Court below for the relief of perpetual injunction, wherein the present revision petitioner has been shown as sole defendant. During pendency of the same, the present petition has been filed in Interlocutory Application No.148 of 2011 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose mentioned therein and the Court below after considering all the contentions putforth on either side has dismissed the petition. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioner/defendant as revision petitioner. 3. Considering the nature of the order passed in Interlocutory Application No.148 of 2011 by the Court below, notice need not be sent to the respondent and this Civil Revision Petition is disposed of on merits at the stage of admission. 4. The learned counsel appearing for the revision petitioner has repeatedly contended that Original Suit No.340 of 2010 has been filed only in respect of 18 cents of land and the plaintiff is the sister of the defendant and their father name is Singaram and he executed a will, wherein he settled northern 30 cents of land in favour of the revision petitioner/defendant and he also settled southern 18 cents of land in favour of the plaintiff and now the plaintiff has encroached a portion of the property, which has been given to the revision petitioner and in order to clinch the factual aspect, the present petition has been filed, but the Court below has erroneously dismissed the same and therefore the order passed by the Court below is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 2 5. For considering the submission made on the side of the revision petitioner, the Court has to look into the description of suit property given in the plaint filed in Original Suit No.340 of 2010, wherein it has been specifically stated that the suit property is comprised in Survey No.104/2, totally measuring 2 acres 16 cents and further the suit property is an extent of 18 cents, which situates on the southern side. 6. On the side of the revision petitioner/defendant, a detailed written statement has been filed. In paragraph No.2 of the written statement, it has been specifically stated that on 27.12.2005, the father of the plaintiff and defendant, by name, Singaram has executed a will, wherein he settled northern 30 cents of land in favour of the defendant and southern 18 cents of land in favour of the plaintiff. Therefore it goes without saying that virtually the defendant has admitted the case of the plaintiff. This Court has further perused the written statement and nowhere it has been specifically stated that the plaintiff has encroached a portion of the property, which belongs to the defendant. Since the present suit has been instituted in respect of southern 18 cents of land and since the defendant has admitted the case of the plaintiff, question of appointment of an Advocate Commissioner for the purpose mentioned in the petition does not arise and further as stated earlier, it is not the case of the revision petitioner/defendant that the plaintiff has encroached a portion of 30 cents of land, which has been given to her. The Court below after considering the rival pleadings putforth on either side and also after considering the nature of the relief sought for in the suit has rightly dismissed Interlocutory Application No.148 of 2011 and in view of the discussion made earlier, this Court has not found any error in the order passed by the Court below and altogether the present Civil Revision Petition deserves to be dismissed. 7. In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs at the stage of admission and the order passed in Interlocutory Application No.148 of 2011 in Original Suit No.340 of 2010 by the District Munsif Court, Pudukkottai is confirmed. However, the District Munsif Court, Pudukkottai is directed to dispose of Original Suit No.340 of 2010 before the end of February, 2012 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar To The District Munsif, Pudukkottai. Copy To: The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai. C.R.P(PD)(MD)No.2223 of 2011 and M.P(MD)No.1 of 2011 22.11.2011 smn/RJ/29.11.11 2p/3c https://hcservices.ecourts.gov.in/hcservices/