The appointment of an Advocate Commissioner at the appellate stage is not warranted if it does not enhance the case of the petitioners.

The revision petitioners who are plaintiffs in the suit having lost the suit for declaration in respect of the suit property have preferred first appeal.

2. Pending appeal, they have taken out an application for appointing Advocate Commissioner to inspect the suit property and to measure the property based on the revenue documents and Exhibits A2 to A6 which according to the plaintiffs are their title deeds and other related documents.

3. The said application has been dismissed by the appellate Court on the ground that to collect evidence, Commissioner cannot be appointed. The object of the local investigation under Order 26 Rule 9 is not to collect evidence and therefore, the revision petitioners are not entitled for the relief of appointing Advocate Commissioner at the appellate stage. Aggrieved by the said order, the appellants have come forward with this revision.

4. The learned counsel for the revision petitioners submitted that the suit property forms part of Jamin Pimash Nos.539 to 545 wherein, after re- survey, a single Survey No.261 was assigned and later sub-divided into various sub divisions. The plaintiffs who own 2 acres and 98 cents in Survey No.261/3B1A sold away 2.15 acres and 18 cents of land was acquired for formation of road and balance 62 cents are with them. But due to their failure to correlate the sketch and the description of the property, the Trial Court rejected their claim. Hence, it is necessary to appoint an Advocate Commissioner to measure the property and place before the Court correlating the survey number, sketch and the description of the suit property.

5. The learned counsel appearing for the respondents submitted that apart from alienation of 2 acres and 15 cents of the plaintiffs' lands to third parties, 18 cents of their land were acquired for road formation and another 25 cents was acquired for Adi-dravidar Welfare Department. The revision petitioners have also received compensation given by the department for the said acquisition which has been recorded by the Trial Court.

6. The counsel for the respondents further submitted that the Trial Court has disbelieved the case of the plaintiffs that 25 cents of land acquired for Adi-dravidar Welfare Department was not from out of 2 acres and 98 cents which was originally held by the plaintiffs and their father in Survey No.261/3B1A. Therefore, nothing remains for the plaintiffs to stake claim and they filed the suit for declaration for an extent of 62 cents without even disclosing the lands acquired for road formation and for Adi-dravidar Welfare Department. Therefore, the suit as laid was found to be false and rightly been dismissed. Therefore, the plaintiffs cannot collect evidence or improve their case by filling up the lacuna by taking out an application for appointing Advocate Commissioner to measure the land at the appellate stage.

7. To buttress his contention, the counsel for the respondents also pointed out that under Exhibit A8, patta has been given jointly in the names of the plaintiffs as well as defendants in respect of Survey No.261/3B1A and therefore, the plaintiffs cannot have exclusive title over the suit property as claimed.

8. The application filed under Order 26 Rule 9 for appointment of Advocate Commissioner at the appellate stage has been dismissed by the appellate Court on the ground that the correctness of the measurements given in the adjacent land is not known to the Court and measuring third parties' property will not help to decide the merits of the case. The documents relied by the revision petitioners out of Exhibits A2 to A6, only Exhibit A2 relates to the property of the petitioners and other exhibits relate to properties of third parties. Therefore, to measure the land based on the documents of third parties may not be of much help. No warrant can be issued to the Commissioner to measure the schedule mentioned property as requested by the petitioner.

9. The core contention and dispute between the rival parties is