Repeated appointment of Advocate Commissioner is not healthy prastice.

This Civil Revision Petition arises out of the order dated 19.07.2004 passed by the District Munsif-cum-Judicial Magistrate, Uthiramerur in I.A.No.127 of 2004 in O.S.No.59 of 1999, dismissing the application under Order XXIV Rule 9 C.P.C filed for Appointment of Advocate Commissioner. Defendants are the Revision Petitioners.

2. Facts necessitated for disposal of this Revision could briefly be stated:-

Plaintiff – Meenakshiammal Polytechnic Unit of M/s.Meenakshiammal Trust has filed O.S.No.1180 of 1993 on the file of the District Munsif Court, Kancheepuram. Later the suit was transferred to District Munsif Court, Uthiramerur and re-numbered as O.S.No.59 of 1999. The Suit Property relates to S.No.383/3A – 3.17.5 H of Perunkuzhi Village, Uthiramerur Taluk. Case of the Plaintiff is that the Plaintiff Trust had purchased the Suit Property in S.No.383/3A under the Sale Deed dated 05.09.1984 from one Parthasarathi Battachariyar for valid consideration. The said Parthasarathi had obtained the property from his Mother – Sudamani Ammal, who purchased the same under Sale Deed dated 10.07.1942. Since the date of purchase, the Plaintiff Trust is in absolute possession and enjoyment of the Suit Property by paying kist. Patta and other Revenue Records stand in the name of the Plaintiff. While so, in or about 1988, the Defendants have encroached a portion of the Suit Property and have put up thatched huts, tiled houses and also terraced constructions inspite of the Plaintiff's protest. The Plaintiff has been requesting the Defendants to vacate and hand over vacant possession of the Suit Property. Since the Defendants have not vacated the suit property, the Plaintiff issued Legal Notice on 20.03.1991 calling upon the Defendants to vacate and hand over vacant possession and also to remove the super structure. The Defendants issued Reply Notice contending false allegations. Hence, the Plaintiff is constrained to file the Suit for declaration of its Title to the Suit Property and for Permanent Injunction, restraining the Defendants from in any way further encroaching or putting up construction in the Suit Property.

3. Defendants 4, 7, 11 and 12 have filed the separate Written Statement denying the averments in the Plaint. Case of the Defendants is that Pattankulam Village is situated in Natham S.No.383/1 and that Village is situated on the way to Chenglepet from Uthiramerur. The Defendants have been in occupation of the Property in S.No.383/3F, which is Tharisu Poromboke lands. The Defendants have put up construction and they are using the same for residential purpose and some of the Defendants are using the lands as their Backyard. The Defendants never trespassed into the suit land in S.No.383/3-A. They are only in possession of the land in S.No.383/3F and 383/1, which is adjacent to the suit property jurisdiction. The Defendants have been in possession of S.No.383/1 and 383/3F for long period and they have perfected their Title by adverse possession.

4. I.A.No.127 of 2004:- The Defendants have filed this Application for Appointment of Advocate Commissioner to measure the Suit Property with the help of a qualified Surveyor. According to the Defendants, a Commissioner is to be appointed to note down the physical features and also to note down that they are in occupation of S.No.383/1 to an extent of 45 cents. According to the Defendants, the Advocate Commissioner earlier appointed has not measured the entire suit property in the occupation of the Defendants and in the occupation of the Respondent/Plaintiff.

5. The Plaintiffs have filed the Counter Statement resisting the Application and pointing out number of Applications for Appointment of Commissioner earlier filed by the parties and the availability of number of Reports. The Application was resisted also on the ground that the Commissioner cannot be appointed to note the factum of possession.

6. Upon consideration of the contentions of both parties it was held that without setting a