Decided on June 30,1972



- (1.) The plaintiff in O.S.No.212 of 1967 on the file of the District Munsifs Court, Rajam is the appellant herein. He has filed the suit for a perpetual injunction to restrain the defendant from interfering with his possession over the plaint schedule site the defendant denies that fact and claims that he was in possession. The trial Court on examination of the entire evidence on record including the evidence of PWs 1 to 3 and the report of the Commissioner appointed by it to report about the local features of the suit site, held about the local features of the suit site, held that the plaintiff was not in possession of the properties and accordingly dismissed the plaintiffs suit. With that finding the appellate Court also concurred. In coming to the conclusion it observed that P.W.s 1 to 3 support the case of the plaintiff and D.Ws 1 to 5 were speaking in favour of the defendant in regard to the use of the suit site and then proceeded to hold that the Commissioners report is the deciding factor in the present case and on a consideration of the report, held that the plaintiff is not in possession of the suit site and confirmed the dismissal of the suit.
(2.) It may be mentioned at this stage that during the pendency of the appeal in the lower appellate Court, the appellant filled LA , 54/1970 for allowing him to amend the plaint so as to include the prayer for the relief of declaration of title and recovery of possession. After the Court came to the conclusion, that the plaintiff was not in possession of the plaint schedule site on the date of the institution of the suit, that petition was dismissed.
(3.) In this second appeal, it is argued by Mr. Ayyapu Reddy learned counsel for the appellant, that the Court below was in error in rejecting the petition for amendment of the plaint and forcing the parties to file another suit for the decision on their rival claims to the title of the plaint schedule site. He further argues that the lower appellate Court erred in taking the Commissioners report into consideration even though the Commissioner was not examined, and the report itself was not marked as evidence and further that the lower appellate Court failed to consider in particular the evidence of P.Ws. 1 to 3 who speak to the possession of the plaintiff.;

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