The discretionary power of the court in appointing an Advocate Commissioner and the limitations on revisiting the property and submitting additional reports.

1. The Petitioners/Defendants have preferred the present Civil Revision Petition as against the order dated 21.01.2011 in I.A.No.1068 of 2010 in O.S.No.366 of 2007 passed by the Learned District Munsif Court, Krishnagiri.

2. The Learned District Munsif Court, Krishnagiri, while passing the order in I.A.No.1068 of 2010 dated 21.01.2011, has categorically observed that 'The Advocate Commissioner has filed his Report and Plan on 04.09.2008 and even though an opportunity has been given till 25.09.2009 to file objections, the same has not been filed and when the original suit has been posted in the list presently, belatedly, the petition has been filed and there is no necessity to direct the Advocate Commissioner to file his report' and resultantly, dismissed the petition.

3. The Learned Counsel for the Petitioners/Defendants submits that the trial Court while dismissing the I.A.No.1068 of 2010 in O.S.No.366 of 2007 on 21.01.2011 has overlooked the fact that the report filed by the Commissioner is bereft of details.

4. According to the Petitioners/Defendants, the Advocate Commissioner has not filed a plan drawn to scale, but only submitted a FMB sketch along with his report and also that his report does not specify the boundaries nor the physical features of the properties.

5. Yet another plea taken on behalf of the Petitioners/Defendants is that the main suit O.S.No.366 of 2007, earlier was decreed ex-parte and later, the Petitioners/Defendants projected an I.A. to restore the suit on file and on 06.10.2010 the suit has been restored to file by the trial Court. Thereafter, the Petitioners/Defendants filed I.A.No.1068 of 2010 before the trial Court praying for an issuance of an order to direct the Advocate Commissioner to re-issue the warrant of Commission to the Commissioner directing him to note down the physical features relating to the boundary description in respect of S.No.115/10, to note the variation in level of the disputed 14 cents, also direct him to file an additional report and plan drawn to scale in respect of the suit S.No.115/10.

6. At this juncture, it is useful for this Court to make a reference to the plaint averments in a panoramic spectrum, which runs to the effect that the Respondents/Plaintiffs in the plaint in O.S.No.366 of 2007 have sought the relief of declaration in respect of their title to suit lands fully described in the schedule. Further, they have also prayed for issuance of a direction by the trial Court in directing the Petitioners/Defendants to deliver vacant possession of the suit lands to the Respondents/Plaintiffs and on their failure or refusal to do so, the possession be delivered to them through process of court.

7. Continuing further, the Respondents/Plaintiffs have also prayed for the relief of mandatory injunction being granted in their favour, in directing the Petitioners/ Defendants to remove the thatched shed and other superstructure or construction put up over the suit lands. Finally, the Respondents/ Plaintiffs have also sought a sum of Rs.10,000/- towards damages from the Petitioners/Defendants.

8. The Petitioners/Defendants 1, 2 and 4, in their Written Statements (adopted by others), have, inter alia, stated that '.... the said Arunachala Gounder had retained the said 14 cents of land which is lying on the South Western corner of S.No.115/10. In fact the bit of land in the South Western corner retained by Arunachala Gounder actually measured 14 cents. Out of that, Panchayat road was formed in two cents. In the remaining 12 cents, 1st defendant's family got 6 cents and his younger brother Dhandapani got Southern half etc.' Further, it is also mentioned in paragraph 4 of the Written Statement that 'Even in the Commissioner's report, the said 12 cents of land lying on the South West corner of S.No.115/10 is indicated in his plan. In the said Commissioner's report, the existence of the thatched house, water tank, bath room, etc. in the occupation of the 4th defendant