This revision petition has arisen against the order dated 7.6.91, passed by the Assistant District Judge No. 2, Gauhati in TS No. 37 of 1986. 2. Original plaintiff, late Chouthmal Jalan filed the above mentioned suit for declaration and permanent injunction against the opposite parties. 3. The case of the petitioners/plaintiffs is that they and the opposite parties have plots of land which are contiguous to each other and that the land under occupation of the defendant/opposite parties is on the north side of the petitioners' land and the petitioners have been enjoying uninterrupted flow of light and air from the north for 50 years or more; that except brick wall on some part, the rest of the boundary between the petitioners and the opposite parties are not demarcated, that the opposite parties are intending to raise construction in such a manner that the flow of light and air to the premises of the plaintiff will be blocked and interrupted. The petitioners' further apprehension is that the opposite parties may encroach upon their land by using the construction and that may already have encroached upon some of their land. Therefore, petitioners prayed for permanent injunction for restraining the opposite parties from encroaching upon the land of the petitioners described in the Schedule. Along with the plaint petitioners also filed application for temporary injunction. During the proceeding a compro­mise was effected before the parties (Ref. No. 880/86) and accordingly opposite parties were allowed to evict temporary wooden wall without touching the boundary line subject to the final order of the suit. Allegation has been raised by the petitioner that the terms of the consent order was violated by the opposite parties by encroaching upon the land of the petitioners and accordingly an application was filed under Order 39 Rule 2A. 4. On 7.6.91 the petitioners filed a petition being petition No. 883/91 under Order 2$ Rule 9 read with section 151 of CPC for appointment of the Amin Commissioner to measure the land of the petitioner indicated in the Schedule of the plaint in order to ascertain the extent of encroachment made by the opposite parties and to give report to the Court. The said petition was preferred as the opposite parties raised alleged construction upon the boundary land of the petitioners on the northern side of his land. This petition was objected by the opposite parties. The said petition was preferred as the opposite parties raised alleged construction upon the boundary land of the petitioners on the northern side of his land. This petition was objected by the opposite parties. Further contention of the petitioners is that the trial Court without disposing the petition under Order 26 Rule 9 wanted to proceed with the hearing of the suit and consequently petitioner had to file an application for adjournment stating inter alia that, in that case the petition filed earlier under Order 39 Rule 2A for willful violation of the Courts order dated 30.8.86 which was pending for disposal since 1986. 5. The trial Court rejected the petition filed under Order 26 Rule 9 instantly and in the same order, it allowed the adjournment petition imposing a cost of Rs.500/- for taking adjournments, making it a condition precedent to pay the cost for further prosecution failing which, it was ordered, petiti­oners would be debarred from further proceedings. Petitioners deposited the amount under protest with a prayer not to disburse the amount to the opposite parties/defendants. 6. From the above discussion, it appears that in the plaint itself, the petitioner kept an option to make prayer for Amin Commission in due process. I read the plaint of the Title Suit No. 37 of 1986 wherein para 8 of the plaint the averment was that at the appropriate time petition for appointment of Amin Commissioner would be filed. In the petition under Order 26 Rule 9 it was also submitted that there was no other alterna­tive mode or means to ascertain the actual area of encroachment. 7. Mr. N. Chakravarty learned senior counsel for the opposite parties has submitted that without amending the plaint petitioner cannot claim for appointment of Amin Commissioner. This submission of Mr. Chakravarty is not sustainable on the ground that amendment of the plaint is subject to the report of the Amin Commission only and in that view of the matter appoint­ment of the Commission is a process precedent for amendment of the plaint. The petition under Order 39 Rule 2A which is also pending since 1986 which was not taken into consideration is an added grievance to the petitioner for which petition for appointment of Amin Commission had to be made. The petition under Order 39 Rule 2A which is also pending since 1986 which was not taken into consideration is an added grievance to the petitioner for which petition for appointment of Amin Commission had to be made. From the plaint of the title suit and subsequent consent order made at the instance of both the parties and subsequent petition under Order 39 Rule 2A and non. disposal of the same necessitate the prayer for appointment of Amin Commi­ssion which the Court ought to have accepted and ordered for appointment of the Commission. 8. In view of above discussion I hold that the Court below did not act within his jurisdiction which was vested on him and therefore acted illegally with material irregularity. 9. In the result the impugned order dated 7.6.91 is set aside and petition is allowed. The title suit is pending before the trial Court since 1986 and in that view of the matter direction is given to dispose of the same within two months from receipt of this order. No costs.