The appellant in A.S.No.10 o 2009 is the revision petitioner before this Court, challenging the order passed in I.A.No.28 of 2010, dated 26.07.2011, rejecting the petitioner’s request for the appointment of Advocate Commissioner.

2. The case of the appellant/first defendant is that the first defendant/plaintiff has filed the above suit against this appellant/first defendant and the second respondent/second defendant for permanent injunction and the same was decreed. Against the said decree, this appellant/first defendant has filed an appeal in A.S.No.10 of 2009 before the learned Sub-Judge, Sankari.

3. While pendency of the above appeal, this appellant/first defendant has filed an application in I.A.No.28 of 2010 for appointment of Advocate Commissioner to measure S.No.40/1 of Avarangam Palayam Village neither it is acre 1.25 or 1.33 and whether S.No.40/1A Avarangam Palayam Village is in existence or not at the stage in the interest of justice.

4. In this petition, this appellant/first defendant stated that there is no 8 cents of lands in ground reality in S.No.40/1A of Avarangam Village. Actually 1.25 acres of land in S.No.40/1 is available on ground and not as 1.33 acres as alleged by the plaintiff is that the Firka Surveyor and Taluk Surveyors also measured the land in S.No.40/1A and the available land is only 1.25 acres in S.No.40/1.

5. The appellant/first defendant has come forward by saying that the facts suppressed by the plaintiff and the plaintiff also not filed any commission petition before the lower Court in the above suit to note down the physical features and measure the property to know the correct extent. The appellant/first defendant states that the plaintiff applied for patta by suppression of facts and obtained the same behind the back by the defendant and other co-owners and the Tahsildar without giving any notice to the co-owners and enquiry granted patta and without measurement sub divided the property in favour of the plaintiff. Therefore, the order passed by the Tribunal, the appellant/first defendant also prayed the appeal before the Revenue Divisional Officer, after came to know during the issue of patta and the sub division order and the same is pending. Therefore, he sought for the appointment of Advocate Commissioner. In the appeal, the appellant/first defendant also states that already he has filed application in I.A.No.324 of 2007 in O.S.No.298 of 2006 for appointment of Commission to measure the suit properties whether 5 cents lands is available in ground reality in S.No.40/1 and S.No.40/1A of Avarangam Palayam Village and the same was opposed by the first respondent/plaintiff and the lower Court also dismissed the said commission application, against which the appellant/first defendant has preferred the revision in CRP.No.3390 of 2008 and this Court dismissed the same. But the appellant/first defendant also states that this Court passed an order in the above CRP.No.3390 of 2008, as follows:

“It is therefore clear that simply because the first defendant/ revision petitioner did not prefer any appeal as against the said sub division on effected by the revenue authority, the revision petitioner is not precluded from disputing such sub division effected by the revenue authority in this suit by way of defence as against the plaintiffs claim. Hence, fedpunge such portion from the order of the trial Court.

Relating to appointment of Advocate Commissioner is concerned, I could see considerable force in the submission of the learned counsel for the plaintiff that, the plaintiff being dominus litus as per the Indian Evidence Act is bound to prove his case. It is not for the defendant to get a Commissioner appointed in and injunction suit. I am also of the opinion that, from the available records the Court itself could assess as to whether actually on ground there is 1.25 acres or 1.33 acres extent of land for which no appointment of Advocate Commissioner is required.

The trial Court is directed to dispos