For resolving the controversy direction given for appointment of an experienced Advocate Commissioner.

The petitioners/ appellants in the second appeal have a filed this petition underO.26, Rule 9, C.P.C. to appoint an Advocate Commissioner to go and visit the suit properties forming subject matter of O.S.No.11 of 1986 on the file of the District Munsif Court, Thiruvaiyaru and take measurements of the properties purchased by them, with the help of the Head Surveyor, Thiruvaiyaru Taluk, with the assistance of Field Measurement Book and with police aid and take measurements of the RI Quarters (S.No.104/2B) and identify its boundaries on all the four sides and then start taking further measurements and file a report.

2. Thecase in brief is as follows:

The first respondent filed a suit in O.S. No.295 of 1976 on the file of the District Munsif Court at Thiruvaiyaru against their vendors, claiming that there is a 20 feet wide street and prayed for permanent injunction. The Court held that there is no 20 feet road and there is only 12 feet wide street south of the vendors plot and dismissed the suit O.S.No.295 of 1976. The appeal was also dismissed and as such it has become final. In O.S.No.295 of 1976, an Advocate Commissioner was appointed and he also filed a report. The first respondent again filed O.S.No.11 of 1986 on the file of the District Munsif Court, Thiruvaiyaru against the petitioners and others for the similar relief and it was negatived by the trial Court. The first respondent preferred an appeal in A.S.No.71 of 1988 before the Sub Court, Thanjavur. The appeal was allowed and the judgment and Decree of the trial Court were set aside. Aggrieved against, the petitioners have come forward with the second appeal.

3. Even before the trial Court, an Advocate Commissioner was appointed and he had taken measurements with the help of a surveyor and has filed a report on 2.9.1986. In the lower appellate Court, an Advocate Commissioner was appointed without setting aside the report of the Advocate Commissioner appointed by the trial Court. The Commissioner appointed in the lower appellate Court did not perform his duties correctly. It is not stated that from which point he started to take measurement. The Surveyor started measuring from a wrong point. The RI Quarters which is on the north of the suit property has already been sub-divided and approved. If Survey No.104/2A is measured starting from the Survey No.104/2B, then only the correct measurements can be taken. After the RI Quarters on the south, there is a 12 feet passage running east to west. On the further south, there is a plot measuring 40 feet north to south. Further south is the petitioners plot measuring 40 feet north to south. The Surveyor seems to have taken measurements from the south on which there are no admitted survey stones or admitted points. It will be in the interest of justice to appoint the Surveyor, Thiruvaiyaru Taluk to go and take measurement of the property from all the points, particularly from the north. It will put an end to the entire controversy and the respondents cannot have any objection for the same. The petitioners have filed objections to the Commissioners report, before the lower appellate Court. The first respondent is threatening the Revenue Officials and is not allowing them to take proper measurement and is creating a scene. Therefore, police aid has to be given to the Advocate Commissioner as well as the Surveyor and hence, the petition.

4. Thefirst respondent opposed the application and stated that O.S.No.11 of 1986 came to be filed for declaration and injunction of the 12 feet road. The Trial Court has erroneously dismissed the suit. However, the lower appellate Court allowed the appeal holding that the respondent was entitled to way and that way was available on the western side for 12 feet and on the eastern side for 9 links. As against the disallowed portion, the first respondent has filed S.A. No.991 of 1993. The surveyor, who measured the property was Inspector of Surveyor and he was appointed at the instance of the