@JUDGMENTTAG-ORDER
M. Venugopal, J.@mdashThe revision petitioner/petitioner/appellant/plaintiff has preferred this Civil Revision Petition as against the order dated
12.09.2008 in I.A. No. 60 of 2008 in A.S. No. 119 of 2006 on the file of the learned Sub Judge, Tuticorin, in dismissing the application praying
for an appointment of an Advocate Commissioner to measure the first item of the petition property as per the settlement deed by noting down the
four boundaries and also to measure the respondents'' property and to submit a report, with the help of a Surveyor.
2. The first appellate Court while passing orders in I.A. No. 60 of 2008 has inter alia opined that the revision petitioner/plaintiff has not stated
proper reasons as to why to measure the petition property for third time and also the respondents'' property for the first time and further that, the
application has been filed belatedly and resultantly, dismissed the application.
3. According to the learned Counsel for the revision petitioner/plaintiff, the first appellate Court has committed an error in rejecting the application
for appointment of an Advocate Commissioner on technical grounds however, going into the root of the matter and further that, the trial Court has
not taken note of the fact that the respective parties have filed the title deeds and moreover, the revision petitioner has also filed patta to prove his
possession and title and in reality, the re-issue of commission with the help of a Surveyor will facilitate the Court to decide the issue without any
ambiguity and inasmuch as the order of the first appellate Court is contrary to law and suffers from material irregularity in regard to the exercise of
jurisdiction, the revision petition needs to be allowed in the interest of justice.
4. In support of the contention that application for appointment of an Advocate Commissioner is maintainable before the first appellate Court in
law, the learned Counsel for the revision petitioner/plaintiff cites the decision of this Court in Special Tahsildar and Land Acquisition Officer Vs.
Daisy Morayin, Antony T. Morayin, Titan T. Morayin, Maickel T. Morayin and Amburose J. Morayin, , wherein the order of the first appellate
Court appointing Commissioner before hearing appeal has been confirmed.
5. Reliance on the side of the revision petitioner is placed on yet another decision of this Court in S. Muthuvelu and Another Vs. Kuttasavu
Sethurayar and Others, wherein a direction has been issued to the trial Court to appoint an experienced Advocate Commissioner in order to put an
end to controversies and to give finality to resolve the disputes between the parties.
6. At this stage, this Court points out that a report of an Advocate Commissioner is nothing more than the evidence in the case, its evidential value
is to be judged while scanning and evaluating other evidence, in the considered opinion of this Court.
7. As a matter of fact, a report of an Advocate Commissioner cannot be the sole basis for arriving at the decision of a case ignoring other
evidences. Really speaking, the aim of appointment of an Advocate Commissioner is not to collect evidence, but to elucidate matters which are
local in character and it can be done only by local investigation at the spot. Of course, the decision on material issues can never be led to the
commission which must be resolved and decided by a Court of law. The report of the Commissioner must be a piece of evidence in the case and
does not by the Court. After all, it can be employed for the purpose of appreciating evidence on record. A Court of law is free to arrive at its own
conclusion because of the fact that the report of an Advocate Commissioner is not binding on it.
8. Admittedly, the revision petitioner/plaintiff has filed the suit seeking for a relief of declaration of his exclusive title to the second schedule land,
which is part of first schedule property and for the relief of consequential injunction restraining the defendant, his men and agents from interfering
with his enjoyment of the second schedule property exclusively and for mandatory injunction directing the defendant to remove the gate put up on
the south-east corner of the plaintiff''s first schedule property south of the second schedule lane etc.
9. The trial Court by its judgment dated 20.01.2005 has come to the conclusion that the revision petitioner/plaintiff has not proved that the second
schedule property belongs to him and further that he is not in enjoyment of the second schedule property and resultantly, dismissed the suit without
costs.
10. Aggrieved against the judgment and decree of the trial Court passed in O.S. No. 189 of 2002 dated 20.01.2005, the revision
petitioner/plaintiff has filed A.S. No. 119 of 2006 on the file of the learned Subordinate Judge, Tuticorin and the same is pending as on date.
11. It is not out of place to point out that the revision petitioner/plaintiff in his plaint in O.S. No. 189 of 2002 before the trial Court has inter alia
averred that the respondent/defendant has high-handedly on 16.01.1998 put up a gate to the breath of 2 feet in the plaint second schedule
property on the southern end etc. and that the defendant has no right in the portions of the land shown in the second schedule and therefore, the
revision petitioner/plaintiff has filed the suit for declaration of his title to the second schedule land and for consequential injunction restraining the
defendant, his men and agents from interfering with the plaint second schedule property exclusively and for a mandatory injunction directing the
defendant to remove the gate put up at the southern end of his second schedule property.
12. The learned Counsel for the revision petitioner brings it to the notice of this Court that in C.R.P. No. 856 of 2000, this Court has passed
orders on 24.03.2000, inter alia observing that ''the present order will not stand in the way either for issuance of further commission or to get
supplementary report'' and resultantly, dismissed the revision petition and this order of the High Court, allows the revision petitioner to file the I.A.
No. 60 of 2008 praying for appointment of an Advocate Commissioner to measure the petition property referred to supra with the help of a
Surveyor and therefore, the first appellate Court is not correct in dismissing the said I.A. No. 60 of 2008 for appointment of an Advocate
Commissioner.
13. Concededly, one of the issues has been framed by the trial Court to the effect that whether plaint second schedule property belongs to the
plaintiff etc. Already the parties have let in oral evidence by examining the witnesses P.W.1 to P.W.3 and marking Ex.P.1 to P.12 on the plaintiff''s
side and on the defendant''s side, D.W.1 and D.W.2 were examined and Exs.D.1 to D.4 have been marked and Ex.C.1 and C.2, the
Commissioner''s report and plan have been marked.
14. It is to be borne in mind that appeal is a continuation of original proceedings, viz, that of the suit. In view of the fact that the appeal proceedings
are pending before the first appellate Court for consideration based on the evidence and documents adduced and marked by the parties before the
trial Court, this Court is of the considered view that the revision petitioner''s prayer for appointment of an Advocate Commissioner is only to
collect evidence and even though a Court of law has power to appoint an Advocate Commissioner (based on the overall assessment of the facts
and circumstances of the case) at the appellate stage, this is not a fit case where this Court can accede to the request of the revision petitioner and
in that view of the matter, this Court sitting in revision is not inclined to allow the present civil revision petition in the interest of justice exercising its
discretion and consequently, dismisses the civil revision petition. Resultantly, the connected Miscellaneous Petition is dismissed.
