Preliminary issue is a mixed question of fact and law.

The revision petitioners in C.R.P.No.3257 of 2000 are the defendants in the suit. The revision petitioners in C.R.P.No.3548 of 2000 are the plaintiffs in the suit. Aggrieved by the order passed by the trial Court in I.A.No.718 of 2000, both the plaintiffs and the defendants have filed these two separate revisions.

2. The plaintiffs filed I.A.No.718 of 2000 for appointment of a fresh Commissioner underO.26, Rule 9, C.P.C. The averments contained in the affidavit are as follows: The plaintiffs filed suit for declaration and possession. A Commissioner was appointed in I.A.No.244 of 1992. Against the order passed in the said I.A., a revision was filed in the High Court. The High Court has directed the Commissioner to measure the properties with reference to old survey numbers and identify the extent of the suit properties i.e., 91 cents. When the plaintiffs filed a memo of instructions to the Commissioner to measure the properties in accordance with the directions of the High Court on 15.1.1998, the Commissioner refused to receive the memo of instructions and the said fact was also informed to the Court on 16.11.1998. The Commissioner in violation of the terms and conditions contained in the C.R.P. order, has measured the properties and prepared the plan. The plaintiffs also filed objections to the said report. But the Commissioner did not file any reply to the above objection. Therefore, the report of the Commissioner and plan filed in I.A.No.244 of 1992 should be scrapped and a fresh Commissioner has to be appointed. Therefore, the petition is filed to scrap the report filed by the Commissioner Selvaraj and appoint a fresh Commissioner and measure the properties and file the report with the assistance of a surveyor.

3. The respondents raised the following contentions in the counter. The Commissioner measured the properties after giving notice to both the parties and that the Commissioner measured the property only in accordance with the directions given by the High Court. There is difference in the extent between the old survey number and the new survey number. The Commissioner, as per the directions of the High Court, measured the properties comprised in S.No.385 with reference to the recitals found in the sale deed. The particulars are also contained in the survey plan. Therefore, it is clear that the Commissioner has measured the property and filed a report only in accordance with the directions contained in the C.R.P. The plaintiffs insisted the Commissioner to measure the property i.e., an extent of 91 cents comprised in the land of the defendants. As the Commissioner did not accede to the request of the plaintiffs, the plaintiffs have come forward with this application for appointment of a Commissioner. The allegation that the Commissioner has fixed the southern boundaries to favour these respondents is not true. Therefore, there are no grounds to scrap the report and plan filed by the Commissioner.

4. The trial Court on consideration of the available materials has allowed the application appointing Mr.V.K. Thangavelu as the Commissioner to measure the property as per the directions contained in pages 11 and 12 of the order in C.R.P.No.992 of 1997 with the assistance of the surveyor and identify the extent of 91 cents. The plaintiffs aggrieved by the said order has filed C.R.P.No.3548 of 2000.

5. It is contended by the revision petitioners in the revision that the trial Court should have rejected the previous Commissioners report when the previous Commissioner has not measured the suit property according to original survey number and that the Commissioner did not execute warrant in accordance with the directions and orders passed in I.A.No.171 of 1997 in I.A.No.244 of 1992 and that when the report is not in accordance with the directions of the High Court, the trial Court should have rejected the Commissioners report and appointed a new Commissioner. Therefore, it is just and necessary that the report of the pr