In case of dispute regarding location measurement of property appointment of Advocate-Commissioner is a must.

This revision is preferred against the order of District Munsif Mannargudi, made in I.A.No.78/2003 in O.S. No.109/2002, dismissing the application under Or.26 R.9 CPC, filed to appoint Advocate Commissioner.

2. O.S.No.109/2002 :-

Suit property refers to 22 cents in S.No.151/16A Ullikottai Village. Case of the Plaintiff is that suit property belongs to him ancestrally. The Plaintiff, and previously, his father have put up hay stake and manure pit. The Defendants are having the property adjacent to the suit property. In their property, there was a house which was in dilapidated condition. The Defendants have been asking the Plaintiff to sell the suit property, which the Plaintiff has refused. The Defendants have been trying to measure the property with Surveyor including the suit property, which was prevented by the Plaintiff. Protesting the same, Plaintiff had also lodged a police complaint. Since the Defendants are continuously causing interference to the Plaintiff's possession and enjoyment of the suit property, the Plaintiff has filed the suit for Permanent Injunction.

3. The first Defendant has filed the Written Statement contending that the Plaintiff is entitled to only the total extent of 11 cents in S.No.151/17, 18, 19, 20, 21. The Plaintiff does not own or is in possession of the property in S.No.151/16A. In the 11 cents which the Plaintiff is entitled, the Plaintiff's brother Venkataraman has put up a terrace house and is in enjoyment of the same. The Defendant's predecessors in title are entitled to the property in S.No.151. They have purchased the same under various Sale Deeds referred to in Paragraph 6 of the Written Statement. When the Plaintiff is entitled to only 11 cents, he cannot claim more than that extent – 22 cents. The Plaintiff is not entitled to the property in the Suit Survey Number. His 11 cents is located in S.Nos.151/17 to 151/21.

4. I.A.No.78/2003 :-

Since the Defendants have denied the location, extent of possession of the property by the Plaintiff and the location thereon, the Plaintiff has filed this application for appointment of Advocate Commissioner. According to the Plaintiff, he has been in possession and enjoyment of S.No.151/16-A – 22 cents. According to the Plaintiff, Defendants own their lands in the adjacent property and they have no manner of right in the suit S.No.151/16-A. Hence the Plaintiff has sought for appointment of Advocate Commissioner to measure the suit property and with the help of a Surveyor and to file the report thereon.

5. The Defendants have resisted the application contending that already Surveyor has measured the suit property and the surrounding properties several times. It is alleged that the Plaintiff has to prove his possession only by producing the documents and cannot seek for appointment of Advocate Commissioner for measuring the suit property and thereby, bring out the factum of possession.

6. Upon consideration of the contentions of both parties, the learned District Munsif declined to appoint an Advocate Commissioner finding that the Plaintiff cannot seek for issuance of Commission to note down his possession. The lower Court held that the suit has been filed only for Permanent Injunction and that the possession is to be proved only by adducing oral and documentary evidence and that the Commissioner cannot be appointed. Further it has been observed that the trial proceedings would be delayed by the appointment of Advocate Commissioner.

7. Aggrieved over the dismissal of the application, the Revision Petitioner/Plaintiff has preferred this revision. The learned counsel for the Revision Petitioner/Plaintiff has contended that the appointment of Advocate Commissioner is necessary to find out in which survey number the suit property is located. Submitting that the appointment of Advocate Commissioner is very much essential, the learned counsel urged to set aside the impugned order.

8. Countering the arguments, the learned counsel for the Respondents/Defenda