Heard Mr. P. Mani, learned counsel appearing for the petitioner and Mr. K. Gandhi Kumar, learned counsel appearing for the respondents.

2. The Petitioner in both revisions is the plaintiff in O.S.No.13/2001 and O.S.No.38/2009, on the file of the District Munsif Court, Ranipettai. She has filed the suit in O.S.No.13/01 and O.S.No.38/2009 against the respondents herein respectively for declaration and recovery of possession and mandatory injunction to remove the semi permanent structure put up by the respective defendant and for permanent injunction. The suit property is one and the same in both the suits i.e. S.No.161/4, Karai Village of Walajapet Taluk.

3. According to the petitioner that the suit property belongs to her and the respondents who owned adjacent land encroached a portion of suit property and constructed the superstructure and thus she has prayed for the relief mentioned supra. Whereas the defendants deny the alleged encroachment and they pleaded that their construction is within their property situated in S.No.147. Thus the crux of issue is as to whether the construction put up by the respective defendant is within their property or in the suit property.

4. The Trial was started and on behalf of the plaintiff her husband namely Natarajan Achari examined as witness and after completion of defendant side evidence and the suit was posted for arguments the petition in I.A. No. 116 of 2012 in O.S. No. 13 of 2009 and I.A. No. 117 of 2012 in O.S. No. 36 of 2009 was filed for appointment of an advocate commissioner to find out the alleged encroachment of 5 cents of the suit property stating that though the respective defendant encroached the suit property they deny the same and plead that the constriction is within their respective property. Thus the lie and location of construction to be find out so as to decide the issue involved in the suits as the relief includes the mandatory injunction and recovery of possession.

5. Per contra, the respective defendants, primarily opposed the same stating that the petition is not maintainable as the petitioner did not sign in the affidavit and her husband alone signed, who has no locus standi; the petition was filed belatedly after the suit posted for arguments without filing a petition to re-open the suit and the petition was filed to drag on the proceedings.

6. The Learned Judge upon hearing the arguments advanced on either side has dismissed the application filed to appoint the advocate commissioner on the ground that the petitioner s husband is not a party to the suit and he has no locus standi to file the application in the suit. Further the learned Judge held that the petitioner is to prove his case through evidence and the court cannot assist the party to collect evidence for his case and the petition was filed with an intention to delay the proceedings.

7. I have carefully considered the case of parties, arguments of both counsels and perused the records. Regarding the locus standi of the husband of petitioner to file the application is concerned the court below has erroneously held that the husband of petitioner, who is not a party to the suit, has no locus standi to file the application. The Court below has failed to see that under Section 120 of Indian Evidence Act, 1872, the parties to the civil suit, and their wives and husbands shall be competent witness. Thus the husband of the petitioner is competent witness to the civil suit. The provision under Section 120 of the Indian Evidence Act reads as follows:-

“120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial.-In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.”

8. It is pertinent to mention here that the husband of the petitioner alone deposed evidence on behalf of his w