An Advocate Commissioner cannot be appointed independently to ascertain the age of a building and the age of the building can only be ascertained by a qualified expert in the field.

M. Duraiswamy, J.

1. A learned Judge of this Court has referred the above Civil Revision Petition to a Division Bench for considering the following question:-

"Whether an Advocate Commissioner can be appointed to ascertain the age of a building?"

2. Before the learned single Judge, the learned counsel appearing for the petitioners relied upon a judgment reported in 2002 (2) CTC 199 (Saraswathy and another vs. Viswanathan) wherein this Court held as follows:–

"15. In view of the discussion above, the civil revision petition is allowed. The lower Court shall appoint an Advocate Commissioner for the purpose set out in the petition in support of the application for appointment of an Advocate Commissioner. The Advocate Commissioner shall measure the properties of both the parties and also note down whether there are projections of the sunshades over the plaintiff's School Buildings on the defendant's property. The Commissioner shall also note down the age of the buildings of the plaintiffs and submit his report. The parties shall file copies of their respective title deeds and also the plans from the Municipality to enable the Commissioner to inspect and file a proper report."

3. The learned counsel appearing on behalf of the respondent in support of his contention relied upon the judgment reported in 2006-2-L.W.159 (Chandrasekaran & 6 others v. V.Doss Naidu) wherein this Court confirmed the fair and final order passed by the trial Court refusing to appoint an Advocate Commissioner which found that (i) the Advocate Commissioner cannot be appointed to prove the long possession of the defendants, (ii) the Commissioner cannot note the age of the building and trees and (iii) the petition has been filed with a view to delay the trial proceedings. This Court, while dismissing the Civil Revision Petition, held that an Advocate Commissioner cannot be appointed to file a report relating to the nature of possession.

4. According to the learned single Judge, since this Court has taken different views in the above referred judgments as to the appointment of Advocate Commissioner to ascertain the age of the building, the learned Judge referred the matter to a Division Bench.

5. In the case on hand, the respondent who is the plaintiff in O.S.No.472 of 2005 on the file of the Additional District Munsif Court, Tiruvannamalai, filed the said suit for declaration, mandatory injunction, delivery of possession and for other reliefs. The said suit is being contested by the revision petitioners who are the defendants in the said suit.

6. The revision petitioners/defendants filed an application in I.A.No.25 of 2007 in O.S.No.472 of 2005 under Order XXVI, Rule 9 of the Civil Procedure Code for appointment of Commissioner to inspect the suit properties, note down the physical features and approximate age of the thatched shed in the suit properties. In the affidavit filed in support of the application, the defendants have stated that the plaintiff alleged in the plaint that the defendants had trespassed and constructed the thatched house in the said property on 9.8.2005. They have also stated that the thatched house was constructed by them in the year 1995 and the same is old one. Further, the defendants have stated that the plaintiff deposed that the defendants constructed the thatched house recently.

7. The respondent filed her counter stating that a commissioner cannot be appointed to ascertain the age of the building.

8. The trial Court after taking into consideration the case of both parties dismissed the application finding that an Advocate Commissioner cannot be appointed to ascertain the age of the building since Advocate Commissioner is not an expert to give a finding with regard to the age of the building. Further, the trial Court held that the age of the building can be proved only by oral and documentary evidences. Aggrieved over the order passed by the trial Court, the defendants have filed the above Civil Revision Petition.

9. Heard the le