In a suit for declaration of title and recovery of possession, the burden of proof is on the plaintiffs to establish the identity of the property, and the appointment of an Advocate Commissioner at the appellate stage can be justified for the objective presentation of facts in the interest of justice.

1. Animadverting upon the order dated 20.08.2009 passed by the learned Principal District Judge at Puducherry in I.A.No.82 of 2008 in A.S.No.10 of 2008 against O.S.No.515 of 2004, this civil revision petition is focussed.

2. The parties are referred to hereunder according to their litigative status and ranking before the lower Court.

3. A resume of facts absolutely necessary and germane for the disposal of this revision would run thus:

The respondents/plaintiffs filed the suit for declaration of their title over the 'B' and 'C' scheduled properties and for recovery of possession. After full trial, the trial Court dismissed the suit, as against which appeal A.S.No.10 of 2008 was filed. During the pendency of the appeal, I.A.No.82 of 2008 was filed with the following prayer:

"To pass an order for an appointment of an Advocate Commissioner to visit the suit properties mentioned under Schedule 'A', 'B' and 'C' along with Surveyor and with Revenue and Municipal records to find out the old name and the present new name for the locality and also the old and new boundaries with Cadastre, Re-Survey and T.S.Numbers based on the documents namely 1) Notarial sale deed dated 10.02.1939 executed by Shanmugam, S/o Arumugam in favour of Ammaniammal W/o Murugesan and 2) Notarial Donation Deed dated 28.07.1947 (Ex.A1) executed by Ammani ammal in favour of her daughter Muniammal @ Anna Marie and also to find out whether the property mentioned under 'A' schedule in the Plaint and the property mentioned in the Notarial sale deed dated 10.02.1939 and the Donation deed dated 28.07.1947 mentioned above is one and the same and file his detailed report before this Honourable Court."

(extracted as such)

4. The revision petitioner filed counter also in that application. After hearing both sides, the learned trial Judge passed order, the operative portion of it would run thus:

"8. ....... ...... ........the Commissioner can be directed to inspect the suit property, note its physical features and draw a sketch with the help of a surveyor noting the survey numbers, Town Survey numbers and other relevant available revenue numbers. Only for this purpose so as to enable this court to get an idea regarding the identification of the suit property and survey number, the request of the petitioner can be accepted. Commissioner can be appointed even at the appeal stage. Hence, the request of the petitioner is accepted as indicated above."

5. Being aggrieved by and dissatisfied with the same, this revision has been focussed on various grounds.

6. The learned counsel for the revision petitioner/D1 would put forth and set forth his

arguments to the effect that absolutely there was no valid reason for appointing an Advocate Commissioner at the appellate stage. The plaintiffs should have, if at all they thought fit, filed an application for getting the Commissioner appointed, when the suit was before the lower Court. By way of filling up the lacuna, the respondents/plaintiffs were not justified in filing this application at the appellate stage. The learned appellate Judge committed error in allowing such an application. The plaintiffs cannot try to fish out evidence and try to achieve success in the appeal.

7. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioner/D1, the learned counsel for the respondents/plaintiffs would pilot his arguments, the gist and kernel of them would run thus:

The appellate Court for the purpose of rendering justice in an objective manner ordered appointment of an Advocate Commissioner. The trial Court while dismissing the suit pointed out that there is doubt about the identity of the suit property. According to the trial Court, Ex.A1 could not be correlated to the property described in the schedule of the plaint; wherefore the appellants thought fit to get an Advocate Commissioner appointed by the appellate Court for getting necessary objective facts before the Court