Appointment of Advocate-Commissioner for noting physical features of a disputed Government Land requires the existence of possession and possessory right to be proved by independent evidence.

(Civil Revision Petition filed under Article 227 of The Constitution of India against the order and decretal Order dated 01.09.2003 made in I.A.No.444 of 2003 in O.S.No.71 of 2002 on the file of District Munsif Court, Uthamalapalaym.)

The Plaintiffs in O.S.No.71 of 2002 on the file of District Munsif Court, Uthamapalayam are the Revision Petitioners. Aggrieved over the order of dismissal of their Application dated 01.09.2003 in I.A.No.444 of 2003 in O.S.No.71 of 2002 dismissing their application filed under Or.29 R.9 and Sec. 151 C.P.C. declining to appoint Advocate-Commissioner, the Plaintiffs have preferred this Revision Petition.

2. Relevant facts for disposal of this Revision could briefly be stated thus: The Suit Property relates to T.S.No.12/1 Kambam Town, Uthamapalayam Taluk. The Plaintiffs claimed to represent Devendrakula Vellalar of Kambam. Case of the Plaintiffs is that the Suit Property within the four boundaries thereon has been received by Devendrakula Vellalar Community as a Burial Ground for more than 100 years. Every year, the Community people perform rites for the dead. On the Western Side of the Suit Property, Bus Stand of Kambam Town is located. Kambam Municipality has proposed to extend the Bus Stand. Under the guise of extending the Bus Stand, the Municipality is trying to encroach upon the Suit Property. Alleging that if the Municipality encroaches upon the Suit Property, it would cause serious prejudice to the Plaintiffs' Community people, the Plaintiffs have filed the Suit for Permanent Injunction restraining the Defendant-Municipality from in any way interfering with their possession of the Suit Property.

3. The Defendant-Municipality has filed the Written Statement stating that the Suit Property - T.S.No.12/1 was never in the possession of the Plaintiff nor they use the same as Burial Ground. The Suit Property is a Poramboke Land and it belongs to the Government. The Suit Property is used as a pathway and the Public are using the same as pathway. By the Western Side of the Suit Property, new Bus Stand was constructed and the Plaintiffs cannot have a claim over the Suit Property nor any right over the Suit Property.

4. The Trial commenced, the Plaintiffs' evidence was closed. On the side of the Defendant, D.W1 - Surveyor was examined and the Survey Register pertaining to the Suit Property was marked as Ex.B-1. At that stage, I.A.No.444 of 2003 was filed by the Plaintiffs seeking for appointment of Advocate-Commissioner under Or.26 R.9 C.P.C. According to the Plaintiffs, they have fenced the Suit Property by implanting stones. According to them the Suit Property is not used as a pathway as alleged by the Defendant-Municipality. Since the Suit Property is used as a Burial Ground, noting down the physical features would bring out the relevant aspects and hence appointment of Advocate-Commissioner was sought for.

5. The above Application was resisted by the Defendant-Municipality by filing the counter statement alleging that the Application has been belatedly filed after the Plaintiffs' evidence was closed. Since the Suit Property has been used as Cart Track, the Plaintiffs cannot seek for appointment of Advocate-Commissioner to prove their possession. The Application has been filed by the Plaintiffs only to drag on the further proceedings.

6. Finding that no documentary evidence has been produced by the Plaintiffs showing their right and possession in the Suit Property, the learned District Munsif found that the Plaintiffs cannot seek for appointment of Advocate-Commissioner and for making enquiry about the factum of possession. The Learned District Munsif observed that before seeking for appointment of Advocate-Commissioner, the Plaintiffs are bound to produce the document and records evidencing their possession and right to be in possession.

7. Assailing the impugned order, the learned counsel for the Revision Petitioners/Plaintiffs submitted that the Lower Court has not properly appreciated the s