The revision petitioner/petitioner/appellant/plaintiff has preferred this Civil Revision Petition as against the order dated 12.09.2008 in I.A.No.60 of 2008 in A.S.No.119 of 2006 on the file of the learned Sub Judge, Tuticorin, in dismissing the application praying for an appointment of an Advocate Commissioner to measure the first item of the petition property as per the settlement deed by noting down the four boundaries and also to measure the respondents' property and to submit a report, with the help of a Surveyor.
2. The first appellate Court while passing orders in I.A.No.60 of 2008 has inter alia opined that the revision petitioner/plaintiff has not stated proper reasons as to why to measure the petition property for third time and also the respondents' property for the first time and further that, the application has been filed belatedly and resultantly, dismissed the application.
3. According to the learned Counsel for the revision petitioner/plaintiff, the first appellate Court has committed an error in rejecting the application for appointment of an Advocate Commissioner on technical grounds however, going into the root of the matter and further that, the trial Court has not taken note of the fact that the respective parties have filed the title deeds and moreover, the revision petitioner has also filed patta to prove his possession and title and in reality, the re-issue of commission with the help of a Surveyor will facilitate the Court to decide the issue without any ambiguity and inasmuch as the order of the first appellate Court is contrary to law and suffers from material irregularity in regard to the exercise of jurisdiction, the revision petition needs to be allowed in the interest of justice.
4. In support of the contention that application for appointment of an Advocate Commissioner is maintainable before the first appellate Court in law, the learned Counsel for the revision petitioner/plaintiff cites the decision of this Court in PR.Chockalingam v. M.Pichai and another reported in 2003 (1) CTC 321, wherein the order of the first appellate Court appointing Commissioner before hearing appeal has been confirmed.
5. Reliance on the side of the revision petitioner is placed on yet another decision of this Court in Muthuvelu v. Kuttasavu Sethurayar reported in (2001) 3 M.L.J 749 wherein a direction has been issued to the trial Court to appoint an experienced Advocate Commissioner in order to put an end to controversies and to give finality to resolve the disputes between the parties.
6. At this stage, this Court points out that a report of an Advocate Commissioner is nothing more than the evidence in the case, its evidential value is to be judged while scanning and evaluating other evidence, in the considered opinion of this Court.
7. As a matter of fact, a report of an Advocate Commissioner cannot be the sole basis for arriving at the decision of a case ignoring other evidences. Really speaking, the aim of appointment of an Advocate Commissioner is not to collect evidence, but to elucidate matters which are local in character and it can be done only by local investigation at the spot. Of course, the decision on material issues can never be led to the commission which must be resolved and decided by a Court of law. The report of the Commissioner must be a piece of evidence in the case and does not by the Court. After all, it can be employed for the purpose of appreciating evidence on record. A Court of law is free to arrive at its own conclusion because of the fact that the report of an Advocate Commissioner is not binding on it.
8. Admittedly, the revision petitioner/plaintiff has filed the suit seeking for a relief of declaration of his exclusive title to the second schedule land, which is part of first schedule property and for the relief of consequential injunction restraining the defendant, his men and agents from interfering with his enjoyment of the second schedule property exclusively and for mandatory injunction directing the defendant to remove the gate put up on the south-east corner of the plaintiff's first schedule property south of the second schedule lane etc.
9. The trial Court by its judgment dated 20.01.2005 has come to the conclusion that the revision petitioner/plaintiff has not proved that the second schedule property belongs to him and further that he is not in enjoyment of the second schedule property and resultantly, dismissed the suit without costs.
10. Aggrieved against the judgment and decree of the trial Court passed in O.S.No.189 of 2002 dated 20.01.2005, the revision petitioner/plaintiff has filed A.S.No.119 of 2006 on the file of the learned Subordinate Judge, Tuticorin and the same is pending as on date.
11. It is not out of place to point out that the revision petitioner/plaintiff in his plaint in O.S.No.189 of 2002 before the trial Court has inter alia averred that the respondent/defendant has high-handedly on 16.01.1998 put up a gate to the breath of 2 feet in the plaint second schedule property on the southern end etc. and that the defendant has no right in the portions of the land shown in the second schedule and therefore, the revision petitioner/plaintiff has filed the suit for declaration of his title to the second schedule land and for consequential injunction restraining the defendant, his men and agents from interfering with the plaint second schedule property exclusively and for a mandatory injunction directing the defendant to remove the gate put up at the southern end of his second schedule property.
12. The learned Counsel for the revision petitioner brings it to the notice of this Court that in C.R.P.No.856 of 2000, this Court has passed orders on 24.03.2000, inter alia observing that 'the present order will not stand in the way either for issuance of further commission or to get supplementary report' and resultantly, dismissed the revision petition and this order of the High Court, allows the revision petitioner to file the I.A.No.60 of 2008 praying for appointment of an Advocate Commissioner to measure the petition property referred to supra with the help of a Surveyor and therefore, the first appellate Court is not correct in dismissing the said I.A.No.60 of 2008 for appointment of an Advocate Commissioner.
13. Concededly, one of the issues has been framed by the trial Court to the effect that whether plaint second schedule property belongs to the plaintiff etc. Already the parties have let in oral evidence by examining the witnesses P.W.1 to P.W.3 and marking Ex.P.1 to P.12 on the plaintiff's side and on the defendant's side, D.W.1 and D.W.2 were examined and Exs.D.1 to D.4 have been marked and Ex.C.1 and C.2, the Commissioner's report and plan have been marked.
14. It is to be borne in mind that appeal is a continuation of original proceedings, viz, that of the suit. In view of the fact that the appeal proceedings are pending before the first appellate Court for consideration based on the evidence and documents adduced and marked by the parties before the trial Court, this Court is of the considered view that the revision petitioner's prayer for appointment of an Advocate Commissioner is only to collect evidence and even though a Court of law has power to appoint an Advocate Commissioner (based on the overall assessment of the facts and circumstances of the case) at the appellate stage, this is not a fit case where this Court can accede to the request of the revision petitioner and in that view of the matter, this Court sitting in revision is not inclined to allow the present civil revision petition in the interest of justice exercising its discretion and consequently, dismisses the civil revision petition. Resultantly, the connected Miscellaneous Petition is dismissed.
rsb To The Sub Judge, Tuticorin.