The court ruled that an Advocate Commissioner can be appointed in an appeal to ascertain property boundaries, emphasizing that an appeal is a continuation of the suit.

ORDER

This Civil Revision Petition has been filed against the Order dated October 26, 2022 passed in I.A.No. 1 of 2021 in A.S.No. 34 of 2021, on the file of 'Principal Subordinate Court, Salem', ['First Appellate Court' for convenience]

2. The revision petitioner herein is the appellant and the respondents herein are the respondents before the First Appellate Court. The revision petitioner herein is the plaintiff and the respondents herein are the defendants in O.S.No. 86 of 2015 on the file of I Additional District Munsif, Salem [Trial Court for short]. The parties will be denoted as per their array in the Original Suit.

3. The revision petitioner/plaintiff filed the Suit in O.S.No. 86 of 2015 before the Trial Court for declaration, mandatory injunction and delivery of possession against the defendants. The defendants filed their written 2/ statement. After full-fledged trial, the Trial Court dismissed the Suit observing that the real dispute is with regard to boundaries and only on locating the constructions it can be ascertained whether the constructions are in Survey Nos. 57/2 or 57/3 and the plaintiff has not taken any steps to locate the boundary line of S.No.57/2 and 57/3. Accordingly dismissed the Suit.

4. In the appeal by the aggrieved plaintiff filed IA.No. 1 of 2021 in A.S.No. 34 of 2021 under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (For short 'CPC'), seeking to appoint an Advocate Commissioner to note down the physical features of the Suit Property along with a qualified Surveyor assisted by concerned Village Administrative Officer and to file a report and plan.

5. The First Appellate Court after hearing both sides, dismissed the I.A.No.1 of 2021 by observing that the plaintiff did not take any steps for the appointment of Advocate Commissioner before Trial Court or examine another 3/ Surveyor to prove Ex.A7 rough plan and the plaintiff ought to have filed petition seeking appointment of Advocate Commissioner before Trial Court. The Advocate Commissioner cannot be appointed in the Appeal Suit.

Accordingly, dismissed the Interlocutory Application on October 26, 2022.

6. Feeling aggrieved with the Order passed by the First Appellate Court, the revision petitioner/plaintiff has preferred this Civil Revision Petition.

7. Mr.R. Subramanian, learned Counsel appearing for the revision petitioner/plaintiff has submitted that the plaintiff's property is situated at Survey No.57/2 and the defendants' property is situated at Survey No. 57/3. The case of the plaintiff is that the defendants have encroached into Survey No.57/2. To find out the exact area and location of encroachment, appointment of Advocate Commissioner along with a qualified Surveyor is necessary. He has further submitted that before filing the Suit, the plaintiff had measured the Suit property, but, at the time of adducing evidence the plaintiff could not 4/ secure the Surveyor who measured and gave the plan. Hence, there is no prejudice would be caused, if this revision is allowed. The First Appellate Court without appreciating the evidence and the facts, dismissed the petition. The learned Counsel refers to Section 107 of CPC, and submits that the First Appellate Court has every power to appoint an Advocate Commissioner.

Accordingly, he prayed to allow this Civil Revision Petition.

8. Per contra, Mr.N.Vijaya Baskar, learned Counsel representing M/s.Law Vision, vehemently contends that the Trial Court found that the plaintiff did not prove his title. In these circumstances, the petition filed under Order XXVI, Rule 9 of CPC., is not maintainable before the First Appellate Court. He further submits that the petitioner has filed the petition only with a view to collect evidenc