ORDER :

1. This Civil Revision Petition has been filed under Article 227 of the Constitution of India, against the order and decreetal order passed by the learned District Munsif at Udhagamandalam, in I.A. No. 953 of 2016 in O.S. No. 5 of 2016, dated 05.09.2018.

2. The plaintiff is the revision petitioner herein.

3. The brief facts of the case are as follows:-

(i) The revision petitioner/plaintiff has filed the above said suit for mandatory injunction directing the respondents/defendants to remove the soil dumped on the plaintiff's land more fully described in the suit schedule property to the extent of ground level and to strengthen the retaining wall put up by the respondents/defendants.

(ii) The suit was pending for trial as the respondents/defendants having denied the averments of the petitioner/plaintiff.

(iii) During the month of July, 2016, due to the monsoon rain as apprehended by the petitioner/plaintiff, the entire retaining wall collapsed and fell on the plaintiff's suit schedule property and as much damaged to her property due to the negligence and carelessness of the respondents/defendants.

(iv) Since the respondents/defendants did not care to put proper foundation for the wall, they sustained it collapsed as expected which fact the plaintiff had already mentioned in her plaint.

(v) Further, the suit schedule property has to be inspected by the Court Commissioner with qualified Surveyors/Engineers to assess the physical features and the nature of damage to the suit schedule property and to give a report on the quality of work by the respondents in putting up the revetment wall with special mention about the foundation so that the plaintiff will be able to prove her case without cumbersome evidence.

4. The case of the respondents/defendants are as follows:-

(i) The respondents/defendants did not dump soil over the suit property as alleged by the plaintiff. The Hotel Savoy Property is situated on higher elevation and the suit property is situated in lower elevation on the southern side to the depth of more than 10 feet. The northern boundary line of the suit property is about 10 feet in higher elevation from the southern side of the suit property along which common mud road is running through.

(ii) The said road is used by others, who purchased house site from the relations of the petitioner and had constructed residential building over it.

(iii) The natural formation of the suit property is like a small mount with strong sloppy terrain and the same was not formed due to alleged dumping of soil by the respondents' servants. Taking advantage of the said sloppy terrain, the plaintiff has come forward with false and untenable allegation that the defendants' servants had dumped soil over the land which was kept leveled by her to a height of 10 width of 24' and the length 21.2 meters. The retaining wall fell on the suit property during the month of July 2016 due to monsoon rain.

(iv) On account of heavy rain on 16.07.2017 and 17.07.2017, the rain water stagnating hours for hours in the said holes further lessened the soil and eroded the soil said adjacent to the retaining wall causing it to tilt and fell horizontally according to slope of the land over the suit property. The suit property is barren land and there was no damage or injury or loss cause to the petitioner's property.

(v) The Court cannot appoint commissioner to collect evidence enabling either party to the suit to prove her case based on such evidence. She wanted the Court Commissioner to collect evidence to prove her case which is not permissible in law.

(vi) On consideration of the submissions made by both the counsel, the Trial Court had dismissed the application in I.A. No. 953 of 2016 and hence, the present Civil Revision Petition is filed by the petitioner/plaintiff.

5. The learned counsel for the petitioner/plaintiff would contend that in order to have the damage as to whether the side support wall built by the defendants and to give a report of the damage caused to