The appointment of a Commissioner may not be necessary if there are other means to establish the case, and the possession of the petitioner can impact the decision.

1. The petitioners herein have filed two suits O.S. No. 90 of 1992 and 89 of 1992 respectively on the file of the Sub-Court, Erode seeking an order of injunction restraining the respondent from interfering with the peaceful possession and enjoyment of the suit property contending that they are the tenants under the respondent pursuant to an oral agreement of lease. Pending the suit both the petitioners filed application Nos. I.A. No. 220/92 and I.A. 302/92 respectively for the appointment of the Advocate Commissioner. The lower Court has dismissed the application against which tile present revision has been filed.

2. The petitioners have stated in the affidavit filed in support of their application for the appointment of Commissioner as follows: —

“The respondent has filed the above suit claimed that he is the tenant of the suit property. The suit property is having ups and downs, therefore, I wanted to level the kind by using bulldozer and it is already levelled to some extent. Only after levelling the entire land it will become more fit for the agricultural purpose. The land cannot be cultivated properly since the lie of the land is with ups and downs If the Commissioner is appointed to note down the existing physical features, it will show that the respondent has not raised any seasonal crops Unless the Commissioner is appointed very valuable evidence will be lost and 1 will be put to much loss and great hardship.”

From the extracted averments it is clear that the petitioner wanted to level the land by using bulldozer and further the land has already been levelled to a certain extent. The appointment of Commissioner is sought for to find out the existing physical features of the suit land and to show that the respondent has not raised any seasonable crops.

3. The contention of the counsel for the petitioners is that the appointment of the Commissioner is necessary to note down the physical features and also to note down whether the land is suitable for cultivation. If the petitioner wants to level the land he could do so by incurring expenses at his risk. The respondent/landlord has not raised any objection with regard to the levelling of the land. So far as the cultivation of the land is concerned, if the petitioner had raised any crops then it would have been entered in the Adangal extract and in the cultivation account of the village. In the absence of any such entry, it cannot be said that the land has been cultivated. If the land is not suitable for any cultivation, it can be established by oral evidence.

4. More over the application has been filed in the year 1992 to note down that the respondent has not raised any seasonal crops. The appointment of Commissioner may be of use to note down the standing crops but not to establish the negative. If prior to the Commissioners visit the crops had been, harvested then the land would lie fallow. When there are other means to establish the case of the petitioner, the appointment of Advocate Commissioner is not necessary.

5. Further the counsel for the petitioner has admitted that the petitioner did not have the benefit of interim injunction pending the suit. If that be so his possession itself is doubtful. Since the suit is of the year 1992, I direct the lower Court to dispose of the suit on priority basis, in case if the suit has not been already disposed of. Accordingly the C.RP.s. are dismissed. Consequently the C.M.P. Nos. 9463 and 9464 of 1992 are also dismissed.