JUDGMENT :

R.M.T. Teekaa Raman, J.

1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and Decretal Order, dated 21.02.2020 passed by the learned Subordinate Judge at Kangayam, in I.A. No. 143 of 2018 in A.S. No. 13 of 2017.

2. The Defendants in the Suit in O.S. No. 195 of 2010 are the Revision Petitioners herein.

3. The Suit in O.S. No. 195 of 2010 was dismissed and hence, the Respondent herein/Plaintiff has preferred the said Appeal in A.S. No. 13 of 2017 before the learned Subordinate Judge, Kangayam. Pending the said Appeal, the Plaintiff has also filed the above said Application in I.A. No. 143 of 2018 under Order 26, Rule 9 of CPC seeking appointment of Advocate Commissioner to measure the property and to file Report with Plan. The said I.A. No. 143 of 2018 was filed at the Appellate stage viz., in A.S. No. 13 of 2017.

4. The averments in the Application in I.A. No. 143 of 2018 are as follows:

[i] The Suit was filed before District Munsif Court, Kangeyam, for Declaration as well as for Delivery of Possession of the encroached portion by the Defendants in S.F. No. 359/1.

[ii] I.A. No. 837/2010 was filed for appointment of an Advocate Commissioner and in the said visit, the encroached portion, the newly created pathway, the newly planted Coconut saplings and the common well were all referred.

[iii] I.A. No. 531/2014 was filed and allowed for making out measurements, as the Plaintiff had pleaded encroachment. The said Report was filed and exhibited as Exs. C3 & C4.

[iv] The Defendants have filed an Interlocutory Application in I.A. No. 433/2015 to eschew the Commissioner's Report and Plan which was allowed and the Trial Court had ordered for scraping of the Report and Plan. In the very same Application, another Advocate Commissioner was appointed who was to submit Report regarding the encroachment along with physical features of the property. The Report and Plans were exhibited as Ex. C.3 to Ex. C.5. In the said Report, the very same features as noted in the Report scraped earlier were pointed out but the encroached portion was not properly brought out with necessary extent.

[v] The Plaintiff again filed an Application in I.A. No. 1627/2015 for the limited purpose of bringing out the measurement of the encroached portion and the portion existing on the Western side of the live fence and as well the run up of the live fence in the Suit property. The said Petition was dismissed. As against the said Dismissal Order, the Plaintiff has preferred a Revision and without going into the merits of the case, the Revision was also dismissed as it was concluded that the said Petition was filed only to drag on the proceedings. Without arriving at the extent of the encroached portions, the real dispute existing between the Plaintiff and the Defendants cannot be resolved and therefore, it is necessary to appoint an Advocate Commissioner to measure the property with the help of a Surveyor as well as bring out the physical features, especially, the extent of property on the Western side of the live fence and the Eastern side. Hence, the Application.

5. In the Counter, the Defendants have stated that before the Trial Court, a similar Application was filed and the same was dismissed and confirmed in the CRP and therefore, the Second Application is not maintainable.

6. Heard Mr. P. Valliappan, learned Counsel for the Petitioners and Mr. N. Manoharan, learned Counsel appearing for the Respondent.

7-A. Learned Counsel for the Respondent has filed typed set of papers inclusive of Advocate Commissioner's Report that are marked as Exs. C1 and C2 and original Report Exs. C3 & C4 which were subsequently scrapped. Thereafter, another Advocate Commissioner was appointed and Exs. C3, C4 & C5 were marked.

7-B. Originally, the Suit was filed by the Plaintiff declaring him as absolute owner of the Suit property as well as delivery of vacant possession and for mandatory Injunction directing the Defendants to restore t