KR AYYAVOO SERVAI Vs. N SETHU

JUDGEMENT

(1.) THE above civil revision petition is directed against the fair and decretal order dated 22.3.1999 made in I.A.No.69 of 1999 in O.S.No.11 of 1994 by the Court of Additional District Munsif, Sivagangai.

(2.) TO trace the facts of the case, regarding the suit properties, the petitioner herein had filed a suit in O.S.No.11 of 1994 before the Court of Additional District Munsif, Sivagangai praying for declaration of his possessory rights and permanent injunction and the said suit having been dismissed after full trial, he preferred an appeal in A.S.No.37 of 1998 before the Court of District Judge, Sivagangai and the said appellate court by judgment dated 15.9.1998 besides setting aside the judgment and decree passed by the trial court dated 18.12.1997, remanded the matter to the trial court for fresh trial to be held and the same was pending before the trial court. At this stage, an application in I.A.No.457 of 1998 had been filed on the part of the petitioner for appoint of a commission to inspect the suit locality to ascertain that the petitioner was in possession and enjoyment of the suit property along with some other properties and the commission having been appointed, on inspection made, the learned Commissioner had also filed his report in the Court.

(3.) DURING arguments, the learned Counsel appearing for the revision petitioner would submit, that the suit properties are the landed properties falling under two categories measuring (i) 0.50.0 hectares and (ii) 0.14.05 hectares and that prescriptive right by long possession has been acquired as a result of which the prayer in the suit has to be altered. The learned counsel for the petitioner would also cite a judgment of this Court delivered in Kokila and another v. K.S.Bhoopathy and five others Kokila and another v. K.S.Bhoopathy and five others Kokila and another v. K.S.Bhoopathy and five others (1998)3 C.T.C. 16 which has been rendered following the proposition laid down in the judgment of the Apex Court delivered in Baniram and others v. Gaind and others Baniram and others v. Gaind and others Baniram and others v. Gaind and others A.I.R. 1982 S.C. 789 wherein the Supreme Court, in the facts and circumstances encircling the case therein, has permitted the party, on a cost of Rs.1,000, to withdraw the suit with liberty to file fresh suit on same or different cause of action. Citing the above judgments, the learned Counsel for the petitioner would pray to allow the revision petition permitting the petition to withdraw the suit with a liberty to file a fresh suit, even by imposing some costs.