Common Judgment

The appellant is respondent in A.S.No.42/2001 and 40/2001 on the file of the Additional Subordinate Judge, Mayiladuthurai. Both the appeals arose from the judgments passed in O.S.No.98/98 and 217/98 on the file of the District Munsif Court, Sirkali. The Appellant is defendant in O.S.No.62 of 2001 and plaintiff in O.S.No.98/98. The respondent is plaintiff in O.S.No.62/01 and he is defendant in O.S.No.98/98.

2. In O.S.No.217/1998, reliefs of recovery of possession and further removal of roofed superstructure and also for mesne profits have been prayed for. While O.S.No.98/98 was filed for permanent injunction. The learned District Munsif passed a common judgment in favour of this appellant and the respondent preferred two appeals in A.S.No.40/2001 and 42/2001 on the file of the learned Additional Subordinate Judge, Mayiladuthurai.

3. The respondent filed a petition in I.A.No.62/2001 under Order XXVI Rule 9 of Civil Procedure Code for appointment of an Advocate-Commissioner to inspect the suit properties and to locate the same with the assistance of a qualified Surveyor. The learned Additional Subordinate Judge, heard both the parties in both appeals and has rendered a common judgment remanding both the mattes to the Trial court to appoint an Advocate-Commissioner to inspect the property with the assistance of a qualified Surveyor, to file a report and to proceed with further trial affording opportunities to both parties to let in evidence, both oral and documentary and to render judgment. The said remand orders are being challenged before this court in these civil miscellaneous appeals.

4. The learned Additional Subordinate Judge, after extracting the contentions of both parties and the respective pleadings of both sides as well, recorded a finding that it is not debatable that the extent of the suit property is 2½ cents and the same is comprised in Survey No.280/2 which is sprawling to an extent of 2 acres and 2 cents, that in the said survey number several persons have put up houses and are residing, that the respondent (appellant herein) has not produced earlier documents of title and Ex.A1 to A5 would show that the plaintiff had been in possession even ten years anterior to 1997, that judgment in O.S.No.13/1995, (Ex.B3) was followed by execution for delivery in E.P.No.40/1998 and on the strength of Ex.B4-Delivery warrant, the defendant took delivery of the property and as per Ex.B2, it was argued that there is no connection between the property in Ex.B2 and the present suit property and on the strength of Ex.B2 to 4, the court below has opined that it could not be decided whether the property belongs to the defendant, that it is to be observed that both the properties are different and that the property referred in Ex.B2 is relatable to the suit property.

5. It is also observed by the Appellate court that if 2½ cents is located in Survey No.280/2, there is a possibility of granting relief to the appellant (respondent herein) and that in the interest of justice, the matter has to be remitted back to the Trial court for a fresh trial as to the points which would be placed before the court by the Commissioners report. The conclusive portion of the judgment of the Appellate Court is as follows:-

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