ORDER
S. Sardar Zackria Hussain, J.
1. The second defendant in O.S. No. 196 of 2004 on the file of the District Munsif Court, Krishnagiri is the revision petitioner in the earlier revision C.R.P. No. 1411 of 2004 and the plaintiff in that suit is the revision petitioner in the later revision C.R.P. No. 1958 of 2004.
2. Earlier revision C.R.P. No. 1411 of 2004 is filed aggrieved against the dismissal order dated 10.6.2004 made in I.A. No. 370 of 2004 filed under Order 26, Rule 9 read with Section 75(b) C.P.C. to appoint a Commissioner to note down the physical features of the suit properties and to submit a report with plan.
3. Later revision C.R.P. No. 1958 of 2004 is filed challenging the correctness of the order dated 4.3.2004 made in I.A. No. 291 of 2004 filed under Order 39, Rule 1 read with Section 151 to grant interim injunction restraining the plaintiff from putting up any construction or directing the plaintiff to maintain status quo till the disposal of the suit O.S. No. 196 of 2004.
4. The plaintiff filed the suit on 7.3.2003 for declaration and permanent injunction restraining the defendants 1 and 2 from trespassing into the suit property and also permanent injunction restraining the defendants 1 and 2 from alienating or encumbering the suit property, viz., vacant site in R.S. No. 17/1, Kattiganapalli village with specific boundaries measuring east to west 43-1/2 feet and north to south 132 feet totalling 5472 square feet and also vacant site within the same boundaries measuring east to west 79 feet and north to south 49-1/2 feet, totalling 3910-1/2 feet and entire measurement of the suit properties being 9652 square feet and a stone foundation within the boundaries.
5. The plaintiff is the daughter of K.G. Magbool Khan, to whom, admittedly the suit property originally belonged to, in view of the purchase as per sale deed in 1988 and on his death on 26.4.1994, the properties were inherited by his wife Sayeeda Begum, two daughters, the plaintiff and the second defendant and son, the first defendant. In the suit O.S. No. 44 of 1995 filed by the second defendant for partition in the Sub Court, Krishnagiri against her mother, Sayeeda Begum; her sister, the plaintiff and her brother, the first defendant; the matter was settled outside Court and as per the compromise petition filed, final decree was passed on 30.8.1996. The first defendant also sold, according to the plaintiff, some of the items allotted to his share in the final decree. It is further claimed by the plaintiff that the plaintiff is in enjoyment of the properties allotted to her share, viz., “C” schedule in the final decree in O.S. No. 44 of 1995 and the suit property measuring 9652 square feet is one of items in the “C” schedule. As per final decree, an incomplete cinema theatre on the west of suit property was kept in common between the parties to the suit O.S. No. 44 of 1995 for the purpose of discharging the debt of late K.G. Magbool Khan by selling the said property. Though the area of the incomplete theatre is 26,334 square feet as per final decree, actually it measures only 23,388 square feet including the compound wall on all the four sides and the same has been sold by the plaintiff and the defendants jointly and the entire debts of late K.G. Magbool Khan were discharged from the sale proceeds. The purchasers have put up a marriage hall in the incomplete cinema theatre in the name “S.V.V. Thirumana Mandapam” adjoining the western side of the suit property and as such, the suit property lies on the eastern side of the said S.V.V. Thirumana Mandapam. Since the defendants have made claim in the suit property, the suit was filed for the above stated reliefs.
6. The defendants 1 and 2 in the written statements filed separately, though admitted that in the compromise final decree in O.S. No. 44 of 1995, ‘C’ schedule property therein was allotted to the share of the plaintiff, the entire suit property measuring 9652 square feet was not allotted to the plaintiff and the plaintiff is also not in possession of the entire suit property. Further, the suit is resisted that the plaintiff is not entitled to the total extent of 9652 square feet as mentioned in final decree. However, according to the first defendant, as per compromise final decree in O.S. No. 44 of 1995, the total extent of 26,334 square feet was kept in common to discharge the debts of late K.G. Magbool Khan, in which 23,388.41 square feet was sold to S.V. Rajamanickam, S.V.Paneerselvam and S.V. Santha for Rs. 33,00,000/- as per registered sale deed dated 9.7.1998 and the balance extent of 2945.59 square feet between the portion allotted to the plaintiff and the portion sold is still kept in common, which is the western portion in the suit property, in which the first defendant is entitled to half share and the plaintiff and the second defendant each are entitled to 1/4th share each.
7. The second defendant filed injunction petition I.A. No. 291 of 2004 seeking injunction restraining the plaintiff from putting up any construction or directing her to maintain status quo till the disposal of the suit O.S. No. 196 of 2004.
8. The second defendant also filed I.A. No. 370 of 2004 under Order 26 Rule 9 read with Section 75(b) C.P.C. to appoint a Commissioner to note down the physical features of the suit properties and submit a report with plan.
9. The Trial Court after enquiry passed an order on 4.3.2004 in I.A. No. 291 of 2004 dismissing the petition with respect to interim injunction and allowing the petition making absolute the status quo already granted till the disposal of the suit. The trial Court has also passed an order on 10.6.2004 dismissing the petition I.A. No. 370 of 2004. The above orders are under challenge in both revisions.
10. The learned counsel for the revision petitioner in the earlier revision C.R.P. No. 1411 of 2004, who is the second defendant in O.S. No. 196 of 2004 in the District Munsif Court, Krishnagiri, argued that the trial Court originally ordered status-quo to be maintained which was violated by the first respondent/plaintiff and therefore, the appointment of advocate-commissioner as sought in I.A. No. 370 of 2004, subject matter of earlier revision C.R.P. No. 1411 of 2004, is necessary to decide the dispute between the parties. The learned counsel further submitted that even in the order dated 4.3.2004 made in I.A. No. 291 of 2004, subject matter of the later revision C.R.P. No. 1958 of 2004, the trial Court has observed about the necessity of the appointment of advocate-commissioner.
11. The learned counsel for the revision petitioner in the later revision C.R.P. No. 1958 of 2004, who is the plaintiff in O.S. No. 196 of 2004, vehemently contended that despite the facts, the trial Court in the injunction petition I.A. No. 252 of 2003 filed by the plaintiff seeking ad-interim injunction restraining the defendants 1 and 2 from trespassing into the suit property till the disposal of the suit O.S. No. 196 of 2004, made the ad-interim injunction already granted absolute till the disposal of the suit as per order dated 4.3.2004 and also in the petition I.A. No. 253 of 2004 filed seeking ad-interim injunction restraining the defendants 1 and 2 from alienating or encumbering the suit property till the disposal of the suit O.S. No. 196 of 2004, made the ad-interim injunction already granted absolute till the disposal of the suit as per order dated 4.3.2004 and in both the petitions, the trial Court found that item 3 in “C” schedule in the compromise final decree i.e., suit item-VI in the partition suit O.S. No. 44 of 1995 filed by the second deferent herein was allotted to the plaintiff in O.S. No. 196 of 2004, the order of the trial Court to maintain status-quo in the injunction petition I.A. No. 291 of 2004 filed by the second defendant in O.S. No. 196 of 2004 is not proper and as such, the trial Court has committed an error.
12. The second defendant in the suit O.S. No. 75 of 2003 on the file of the Sub Court, Krishnagiri which was transferred and renumbered as O.S. No. 196 of 2004 in the District Munsif Court, Krishnagiri, has filed the partition suit O.S. No. 44 of 1995 in Sub Court, Krishnagiri, on 1.2.1995 against her mother Sayeeda Begum, her sister, the plaintiff herein and her brother, the first defendant herein seeking partition of 7/32 share in that suit properties (O.S. No. 44 of 1995). As per memo of compromise reached between the parties, a compromise final decree was passed on 30.8.1996. As per the said compromise final decree, the property described as “C” schedule in the compromise memo consisting of suit items 2, 3, 5, 6 and 7 in that suit were allotted to the share of the second defendant in that suit, viz., the plaintiff in O.S. No. 196 of 2004; the property described as “A” schedule in the compromise memo consisting of suit items 5 and 8 in that suit were allotted to the share of the second defendant in that suit, viz., the plaintiff in O.S. No. 196 of 2004; the property described as “B” schedule in the compromise memo consisting of suit item 10 in that suit was allotted to the share of the second defendant in that suit, viz., Sayeetha Begum, the mother of the plaintiff and the second defendant in O.S. No. 196 of 2004 and the property described as “D” schedule in the compromise memo consisting of suit items 1, 3, 5, 9 and 11(i)(ii) in that suit were allotted to the share of the third defendant in that suit, viz., the first defendant in O.S. No. 196 of 2004. A provision also was made as per the said compromise final decree to discharge the debts of the father K.G. Magbool Khan by selling item 5 of the suit property by the plaintiff and the defendants 2 and 3 in that suit, viz., the plaintiff and the defendants 1 and 2 in O.S. No. 196 of 2004 and they have to share the remaining sale proceeds after discharging the debts of their father K.G. Magbool Khan as stated in Clause 7 of the said final decree.
13. The property as described in item 3 of the “C” schedule consisting item 6 of the suit property in O.S. No. 44 of 1995 allotted to the share of the second defendant in that suit and who is the plaintiff in O.S. No. 196 of 2004 is vacant sites with specific boundaries in R.S. No. 17/1, Kattiganapalli village measuring east-west 43-1/2 feet and north-south 132 feet totalling 5472 square feet and within the same boundaries another vacant site measuring east-west 79 feet and north-south 49-1/2 feet totalling 3910-1/2 square feet and grand total 9652 square feet as mentioned in the final decree and stone foundation within the same boundaries. The western boundary is mentioned as east of the compound wall of unfinished theatre building of K.G. Magbool Khan, which was allotted to the share of the plaintiff and the defendants 1 and 2 in O.S. No. 196 of 2004 directing to discharge the debts of their father Magbool Khan and in the remaining sale proceeds the first defendant is entitled 1/2 share and the plaintiff and the second defendants are each entitled to 1/4th each. The property as described in item 3 of the “C” schedule consisting item 6 of the suit property in O.S. No. 44 of 1995 to the second defendant, viz., the plaintiff in the suit O.S. No. 196 of 2004 is the suit property in this suit and the suit O.S. No. 196 of 2004 is filed seeking declaration and permanent injunction in respect of the suit property against the defendants 1 and 2, who are parties in the partition suit O.S. No. 44 of 1995 and as such, the said allotment of property have become final. Further, as per the compromise final decree the plaintiff and the defendants 1 and 2 together sold 23,388.41 square feet out of 26,334 square feet to S.V. Rajamanickam, S.V.Paneerselvam and S.V. Santha for Rs. 33,00,000/- as per registered sale deed Ex.B-2 dated 9.2.1998.
14. Since the defendants 1 and 2 attempted to trespass and also attempted to alienate, the property allotted to the share of the plaintiff as per final decree in O.S. No. 44 of 1995, the same necessitated the plaintiff to file the suit O.S. No. 196 of 2004 for declaration and permanent injunction. Though the trial Court as per order dated 4.3.2004 in I.A.Nos.252 and 253 of 2003 made the interim injunction already granted absolute till the disposal of the suit O.S. No. 196 of 2004, however, the trial Court has committed an error in passing order in I.A. No. 291 of 2004 filed by the second defendant ordering to maintain status-quo by both parties till the disposal of the suit. Such order being irregular, it is to be set aside.
15. Inasmuch as there is no dispute with regard to the identity of the property, the trial Court has rightly refused to appoint advocate-commissioner in I.A. No. 370 of 2004 filed by the second defendant and therefore, the said order is liable to be confirmed.
16. C.R.P. No. 1411 of 2004:- In the result, in view of the discussions made above, the revision C.R.P. No. 1411 of 2004 fails and is dismissed. No costs. The order dated 10.6.2004 in I.A. No. 370 of 2004 in O.S. No. 196 of 2004 passed by the District Munsif Court, Krishnagiri is confirmed. Consequently, the connected petition C.M.P. No. 13332 of 2004 is also dismissed.
17. C.R.P. No. 1958 of 2004:- In the result, in view of the discussions made above, the revision C.R.P. No. 1958 of 2004 is allowed. No costs. The order dated 4.3.2004 in I.A. No. 291 of 2004 in O.S. No. 196 of 2004 passed by the District Munsif Court, Krishnagiri is set aside and petition I.A. No. 291 of 2004 is dismissed. Consequently, the connected petition C.M.P. No. 18593 of 2004 is closed.