D. Hari Paranthaman, J.

1. The revision petitioners are the plaintiffs who filed the suit in O.S. No. 239 of 1985 before the Principal District Munsif Court, Tirunelveli, as against the respondents herein/defendants for the relief of declaration of second schedule property as common passage to both plaintiffs and defendants and for consequential injunction.

2. Paragraph 3 of the plaint refers to the plaint plan attached to the suit. The said plaint plan marked as Ex.A1 in the suit showing the common pathway includes the small passage between Door Nos. 171A and 171B. However, while the other common pathway is very clear, the small passage between Door Nos. 171A and 171B is not clear as per Ex.A1-plaint plan.

3. The Trial Court decreed the suit on 30.06.1994 as prayed for.

4. The defendants/respondents preferred appeal suit in A.S. No. 81 of 1994 before the Principal Sub Court, Tirunelveli. In the first appeal, an application was filed by the defendants for appointment of advocate commissioner.

5. The first appellate Court dismissed the appeal suit and also the application for appointment of advocate commissioner by its judgment and decree dated 10.12.1996.

6. The defendants/respondents herein filed second appeal in S.A. No. 1752 of 1997 before this Court questioning the concurrent findings of the court below.

7. This Court by its judgment and decree dated 08.09.2011 in S.A. No. 1752 of 1997, confirmed the judgments of the courts below in respect of common pathway upto an extent and remanded the matter to the first appellate court for deciding the lis relating to the small passage between Door Nos. 171A and 171B. This Court has recorded that Ex.A1-plaint plan is not clear as far as the small passage is concerned. It is relevant to extract paragraph 6 to 12 of the judgment dated 08.09.2011.

"6. Admittedly, a perusal of Ex.A1 filed by the appellants, which is rough sketch filed along with the plaint filed by the defendants, would show that the suit property is ABCD.

7. It is seen from the said sketch, the portion shown in Door No. 171/B belongs to the defendants, who are appellants herein. However, the trial court has committed an error in treating Door No. 171/A as one belonging to the plaintiffs.

8. It is also seen that in so far, the common lane is concerned, the courts below have considered the entire material on facts found that even the document of the vendor of the appellants, itself make a mention about the same. Therefore, such a factual finding rendered by the courts below does not warrant any interference.

9. Now the next question for consideration is that the small passage, which the lower appellate court has stated can be used as a common pathway, situated in between door No. 171-A and 171-B.

10. A perusal of the plaint would show that there is no specific plea has been raised over the same, even though the trial court has gone into it. More-over, when the trial court has found that the sketch produced by the plaintiff is wrong, then the suit ought not to have been decreed as prayed for.

11. It is further to be seen that the application filed by the appellants for appointment of commissioner was rejected by lower appellate court, without assigning any reason. Merely because, the appellants have not filed any application before the trial court, the same by itself cannot be a ground to reject the said application.

12. Hence, taking into consideration of the above said facts, this appeal is remitted back in-so-far-as the dispute regarding the usage of pathway situated between the Door No. 171-A and 171-B is concerned. It is open to the parties viz., the plaintiffs and defendants to file appropriate application for raising additional pleas and amendment of the pleadings before the lower appellate court. It is also open to the parties to file proper application for seeking an appointment of commissioner, if so advised, and apart from producing the documents, in support their contention, other than the documents, which have been alr