The court emphasized the discretionary power of the trial court in appointing an Advocate Commissioner and the non-binding nature of the Commissioner's report.

1. The Petitioners/Defendants have filed the present Civil Revision Petition as against the order dated 21.02.2011 in I.A.No.1604 of 2010 in O.S.No.301 of 2010 passed by the Learned District Munsif, Sankari.

2. The Learned District Munsif, Sankari, while passing orders in I.A.No.1604 of 2010 in O.S.No.301 of 2010 in Paragraph 8 has observed that 'since it is the contention raised by the Respondents (Defendants/Revision Petitioners) that the suit cart track is meant only for the use of joint family properties and it is not open to the Petitioner (Respondent/Plaintiff/Petitioner) to transport anything from S.No.202/2C through the suit cart track, there is nothing wrong in directing the Advocate Commissioner to note down the physical features of S.No.202/2C also, which is connected with the disputed suit cart track' and resultantly, allowed the application by appointing Thiru. N. Chandaran, Advocate Commissioner and directed him to visit the suit property as well as S.No.202/2C, after issuance of notice to both the parties, note down the existing physical features and to file his Report along with a rough sketch by 05.04.2011.

3. Also, the remuneration for the Advocate Commissioner has been at Rs.1,500/- to be paid by the Respondent (Petitioner/Plaintiff), directly to the Commissioner and further directed the application to be called on 05.04.2011.

4. It transpires that the Revision Petitioners/Petitioners (Defendants) have filed CRP.PD.No.1190 of 2011, being dissatisfied with the order of appointment of Advocate Commissioner made by the trial Court in I.A.No.1604 of 2010 in O.S.No.301 of 2010 on 21.02.2011 and this Court, in M.P.No.1 of 2011 has passed the following order:

“Notice of motion returnable in four weeks. Private Notice is also permitted. Interim stay till then.”

5. The Learned Counsel for the Petitioners/Defendants contends that the trial Court has committed an error in allowing the I.A.No.1604 of 2010 in O.S.No.301 of 2010 on 21.02.2011, by appointing an Advocate Commissioner without properly considering the factual and attendant circumstances of the case in a proper and real perspective.

6. According to the Learned Counsel for the Petitioners/Defendants, the trial Court has failed to appreciate an important fact that the suit cart track ABCDE is available only for the joint family properties, which are divided between the Plaintiff and the First Defendant. Furthermore, the crystal clear stand taken by the Petitioners/ Defendants is that the Respondent/Plaintiff has no right to use the cart track in respect of the land in S.No.202/2C.

7. Yet another plea taken on behalf of the Petitioners/Defendants is that the land in S.No.202/2C has been purchased by the Respondent/Plaintiff's son and subsequently, it has been settled in favour of the Respondent/Plaintiff. Indeed, the said purchase is a separate land and therefore, the suit cart track cannot be utilised for any purpose of the suit land in S.No.202/2C.

8. Lastly, it is the submission of the Learned Counsel for the Petitioners/Defendants that it is for the Respondent/Plaintiff to prove his right in respect of the cart track by way of independent evidence and it is not open to the Respondent/Plaintiff to indulge in either fishing expedition or to such for an evidence or to gather or collect evidence, besides the land in S.No.202/2C is not a subject matter of 'Lis' between the parties.

9. Per contra, it is the contention of the Learned Counsel for the Respondent/Plaintiff that because of the adamant attitude of the Revision Petitioners/Defendants, the agricultural products are likely to be wasted in which event he will be serious hardship and loss and as a matter of fact, the Respondent/Plaintiff has got every right to use the suit cart track for all the purposes and more importantly, there is no alternative way to him except the suit cart track.

10. The Learned counsel for the Respondent/Plaintiff brings it to the notice of this Court that the Petitio