JUDGMENT

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The plaintiff is the appellant herein. This Civil Miscellaneous Appeal has been filed to set aside the judgment and decree dated 17.08.2020 passed in A.S.No.111 of 2015 on the file of the Subordinate Court, Thoothukudi, reversing the judgment and decree dated 31.08.2015 passed in O.S.No.374 of 2006 on the file of District Munsif Court, Thoothukudi.

2. For the sake of convenience, the parties are called as per their ranking in the Tribunal.

3. The appellant/plaintiff has filed a suit in O.S.No.374 of 2006 before the District Munsif Court, Thoothukudi, seeking permanant injuction against the defendant for putting up any construction in the Item No.1 of the suit property. Subsequently, he has filed an Interlocatury Application to include the prayer of mandatory injuction and remove the superstructure and constructions put up by the defendant in the B-scheule property and for the recovery of the same.

4. During the course of trial, an Advocate Commissioner was appointed in I.A.No.507 of 2007. The Advocate Commissioner along with the Surveyor has inspected the suit property in the presence of the respective counsels and also filed a report. As against the Advocate Commissioner's report, the defendant/respondent did not file any objections against the report.

5. On the side of the appellant/plaintiff, two witnesses were examined as PW1 and P.W.2 and 3 documens were marked as Exs.P1 to P3. On the side of the respondent/defendant, three witnesses were examined as D.W.1 to D.W.3 and 6 documents were marked as Ex.B1 to Ex.B6 and one Court document was marked.

6. The learned trial Judge, after considering the oral and documentary evidence, came to the conclusion that the defendant had encroached the upon the Item No.2 of the scheudle property and the northen side 6 feet running from south side to Northern on the western side on the easterten side four feets, the defendnat has encorached the property and based upon the Advocate Commissioner report, the trial Court decreed the suit as prayed for. Aggrived against the said Judgment and Decree, the defendant has preferred the Apeal Suit in A.S.No.111 of 2015 before the Subordinate Court, Thoothukudi. Pending appeal suit, the appellant/defendant has filed I.A.No.1 of 2019 for appointment of Advocate Commissioner to measure the property from the survey stone instead of cadel stone and to remeasure the property by observing that assistance of the Surveyor was not availed by the Advocate Commissioner appointed by the trial Court and accordingly, allowed the appeal and remmitted back the matter to the trial Court for the report of the newly appointted Advocate Commissioner. As against the order of said remand, the plaintiff has preferred this appeal.

7. Heard the rival submissions made by the respective parties and perused the materials available on record.

8(a). On perusal of the Advocate Commissioner report filed in I.A.

507 of 2007 in O.S.No.374 of 2006, I find that the said Advocate Commissioner appointed by the trial Court had inspected the suit property on 10.07.2007 with the assistance of Surveyor; since the survey stone was not present, based upon the cadel stone which indicates that orginal survey number and subsequently, measured the same from keeping the cadel stone marked as ''A'' from the rough sketch filed by him, the land in survey No.195/1B in item No.1 is shedule property, for which the plaintiff has sought for the relief of permanant injuction. The title and the owership of the suit property was not questioned nor disputed by the defendant and hence, the trial Court has rightly granted the decree.

8(b). Also in respect of land in Survey No.195/1A1, there is no dispute that it belongs to the defendant which is not the subject matter of the suit.

8(c). With regard to the lands in Survey No.195/3 (plaintiff) and

195/A2 (defendant), the bungala building constructed by the defendant as per the Advocate Commissioner report has been encorached 6 feet and 4 feets as marked i