The revision petitioners are the plaintiffs in O.S.No.385 of 2013 on the file of learned the District Munsif, Musiri and in the suit, the revision petitioners/plaintiffs sought for declaration among other various reliefs. During pendency of the suit, the petitioners/plaintiffs filed an application in I.A.No.858 of 2014 for appointment of an Advocate Commissioner to inspect the suit property and note down its measurements with the assistance of a Surveyor and the said application was dismissed by the Trial Court, stating that there is no need to consider appointment of an Advocate Commissioner in this case, as there is no dispute between the parties regarding identification of suit properties and the plaintiffs cannot be permitted to collect evidence through Advocate Commissioner. Challenging the said order, the petitioners are before this Court.

2. Heard the learned counsel for the petitioners, the learned counsel appearing for R1 and the learned Government Advocate for R5 to R8. There is no representation for R2 to R4.

3. It is the case of the revision petitioners that originally, the suit schedule properties were owned by their father Kathaperumal Nattar, who inherited the properties by way of partition deed and the said deed was registered on 25.02.1938 and after the demise of Kathaperumal Nattar, the plaintiffs, the 1st defendant and the husband of the 2nd defendant have partitioned the properties by way of oral agreement, except the suit schedule properties. It is the further case of the revision petitioners that when the plaintiffs sent a legal notice dated 08.07.2013 to the 1st defendant regarding the hindrance being caused by the defendants 1 to 4, for which, they sent a reply on 13.07.2013, stating that the suit schedule properties are in joint possession and the plaintiffs have no right to convert the joint patta into an individual patta. It is also submitted that actually, the properties are solely owned by the revision petitioners and unless or until an Advocate Commissioner is appointed to ascertain the above fact, they have no other option to establish their case orally. Therefore, they filed an application before the Trial Court for appointment of Advocate Commissioner to ascertain the actual position in respect of the properties. But the Trial Court, instead of exercising its discretion vested under Order 26 Rule 9 CPC, dismissed the said application.

4. The revision petitioners state that it is mandate on the part of the Trial Court to appoint an Advocate Commissioner with a mission to visit the suit property with the help of a Surveyor and measure the same by referring to the Survey Map and documents of both sides and note down the physical features. In support of his submission, he has relied upon the judgment of this Court in the case of Shanmugathai vs. Kamalammal and another reported in 2017 (2) MWN (Civil) 315, wherein this Court was pleased to appoint an Advocate Commissioner for the purpose of inspection of the suit property.

5. In the said judgment, this Court held as follows:

“11. Admittedly the present petition for appointment of an Advocate Commissioner was filed only at the stage of arguments, however the relief sought for in the suit is one for mandatory injunction and recovery of possession after declaration of the title. When the respective defendant deny the lie and location of disputed construction and specifically assert that the construction is within their property and there is no encroachment, the nature of dispute could be resolved only if the exact location of construction is brought to the knowledge of court, which cannot be done except by appointment of advocate commissioner. Thus mere delay in filing the application after the case was posted for arguments is not a ground for dismissal of application and substantial justice requires that the appointment of commissioner is very much necessary to decide the lis.

12.At this juncture, it is useful to refer the Judgment of this Honble Cou