Judgment : The petitioners/ appellants in the second appeal have a filed this petition underO.26, Rule 9, C.P.C. to appoint an Advocate Commissioner to go and visit the suit properties forming subject matter of O.S.No.11 of 1986 on the file of the District Munsif Court, Thiruvaiyaru and take measurements of the properties purchased by them, with the help of the Head Surveyor, Thiruvaiyaru Taluk, with the assistance of Field Measurement Book and with police aid and take measurements of the RI Quarters (S.No.104/2B) and identify its boundaries on all the four sides and then start taking further measurements and file a report. 2. Thecase in brief is as follows: The first respondent filed a suit in O.S. No.295 of 1976 on the file of the District Munsif Court at Thiruvaiyaru against their vendors, claiming that there is a 20 feet wide street and prayed for permanent injunction. The Court held that there is no 20 feet road and there is only 12 feet wide street south of the vendors plot and dismissed the suit O.S.No.295 of 1976. The appeal was also dismissed and as such it has become final. In O.S.No.295 of 1976, an Advocate Commissioner was appointed and he also filed a report. The first respondent again filed O.S.No.11 of 1986 on the file of the District Munsif Court, Thiruvaiyaru against the petitioners and others for the similar relief and it was negatived by the trial Court. The first respondent preferred an appeal in A.S.No.71 of 1988 before the Sub Court, Thanjavur. The appeal was allowed and the judgment and Decree of the trial Court were set aside. Aggrieved against, the petitioners have come forward with the second appeal. 3. Even before the trial Court, an Advocate Commissioner was appointed and he had taken measurements with the help of a surveyor and has filed a report on 2.9.1986. In the lower appellate Court, an Advocate Commissioner was appointed without setting aside the report of the Advocate Commissioner appointed by the trial Court. The Commissioner appointed in the lower appellate Court did not perform his duties correctly. It is not stated that from which point he started to take measurement. The Surveyor started measuring from a wrong point. The RI Quarters which is on the north of the suit property has already been sub-divided and approved. The Commissioner appointed in the lower appellate Court did not perform his duties correctly. It is not stated that from which point he started to take measurement. The Surveyor started measuring from a wrong point. The RI Quarters which is on the north of the suit property has already been sub-divided and approved. If Survey No.104/2A is measured starting from the Survey No.104/2B, then only the correct measurements can be taken. After the RI Quarters on the south, there is a 12 feet passage running east to west. On the further south, there is a plot measuring 40 feet north to south. Further south is the petitioners plot measuring 40 feet north to south. The Surveyor seems to have taken measurements from the south on which there are no admitted survey stones or admitted points. It will be in the interest of justice to appoint the Surveyor, Thiruvaiyaru Taluk to go and take measurement of the property from all the points, particularly from the north. It will put an end to the entire controversy and the respondents cannot have any objection for the same. The petitioners have filed objections to the Commissioners report, before the lower appellate Court. The first respondent is threatening the Revenue Officials and is not allowing them to take proper measurement and is creating a scene. Therefore, police aid has to be given to the Advocate Commissioner as well as the Surveyor and hence, the petition. 4. Thefirst respondent opposed the application and stated that O.S.No.11 of 1986 came to be filed for declaration and injunction of the 12 feet road. The Trial Court has erroneously dismissed the suit. However, the lower appellate Court allowed the appeal holding that the respondent was entitled to way and that way was available on the western side for 12 feet and on the eastern side for 9 links. As against the disallowed portion, the first respondent has filed S.A. No.991 of 1993. The surveyor, who measured the property was Inspector of Surveyor and he was appointed at the instance of the petitioner. New Commissioner need not be appointed now and the petitioner cannot seek to measure the property from the north or from the Revenue Inspectors Quarters. This application can be considered along with the main appeal. After hearing the parties, if appointment of Commissioner becomes essential, it can be ordered. Hence, this petition is liable to be dismissed. New Commissioner need not be appointed now and the petitioner cannot seek to measure the property from the north or from the Revenue Inspectors Quarters. This application can be considered along with the main appeal. After hearing the parties, if appointment of Commissioner becomes essential, it can be ordered. Hence, this petition is liable to be dismissed. 5. Heard learned counsel for the parties. 6. The point that arise for consideration is whether an Advocate Commissioner has to be appointed to measure the properties with the help of the Head Surveyor, Thiruvaiyaru Taluk, with the assistance of Field Measurement Book and with police aid and to take measurements of the RI Quarters and identify the 12 feet road as well as the other details? 7. It is not in dispute that the respondents filed O.S.No.11 of 1986 for declaration and injunction of the 12 feet road. It is also admitted that in the trial Court, an Advocate Commissioner was appointed to measure the property and after inspection, a report was filed. Similarly, in the lower appellate Court, an Advocate Commissioner was appointed and he had measured the property with the help of the District Surveyor and a report was filed. The trial Court dismissed the suit filed by the first respondent, whereas, the lower Appellate Court allowed the appeal setting aside the Judgment and Decree of the trial Court. Aggrieved against the same, the petitioners have come forward with the present second appeal. 8. The learned counsel for the petitioner contended that even in the trial Court, an Advocate Commissioner was appointed and a report was filed, but without superseding the same, the lower Appellate Court also appointed an Advocate Commissioner and after inspection, a report was filed. Now, according to the learned counsel, the report and the plan have not been properly considered by the lower appellate Court. Moreover, the measurement taken by the Advocate Commissioner in the lower appellate Court was not done properly. The measurement have commenced from the southern side. The Revenue Inspectors quarters are on the northern side and it has already been sub-divided. There are also survey stones. If the measurement is taken from the northern side, it will be easier for the Advocate Commissioner as well as the other details. The measurement have commenced from the southern side. The Revenue Inspectors quarters are on the northern side and it has already been sub-divided. There are also survey stones. If the measurement is taken from the northern side, it will be easier for the Advocate Commissioner as well as the other details. Under such circumstances, an Advocate Commissioner has to be appointed with a direction to measure the properties commencing from the northern side, namely, the RI Quarters and identify the boundaries on all the four sides to locate where the road is situated and other details. 9. Per contra, the learned counsel for the respondents contended that there is absolutely no necessity for appointing that there is absolutely no necessity for appointing another Advocate Commissioner. There were already two reports and plans filed by the Advocate Commissioners and the measurements were also taken with the help of qualified Surveyor. The dispute between the parties is with reference to the 12 feet road and the place where it is situated. Inspite of two reports, the dispute between the parties have not been resolved. 10. The petitioners want that the property has to be measured commencing from the north, whereas, the respondents would contend that the measurement may commence from the south side. In order to put an end to the controversy between the parties and to identify the road as well as the other details, I am of the view, it is just and necessary to appoint an Advocate Commissioner to carry out the job with the help of the District Surveyor and with the assistance of Field Measurement Book of the locality.The apprehension raised by the learned Senior Counsel for the petitioner is that the respondents are preventing the officials from measuring the property and as such the police aid also has to be ordered. If and when necessity arises, the Advocate Commissioner as well as the Surveyor can contact with the Police for giving protection. No doubt, the two reports and plan filed earlier have not been superseded. According to the parties, there are various versions relating to the location of 12 feet wide road. In order to set-right the same and to give finality, new Advocate Commissioner has to be appointed with a specific direction to measure the property and file a report accordingly. Hence, the point is answered accordingly. 11. According to the parties, there are various versions relating to the location of 12 feet wide road. In order to set-right the same and to give finality, new Advocate Commissioner has to be appointed with a specific direction to measure the property and file a report accordingly. Hence, the point is answered accordingly. 11. Inthe result, the petition is allowed and the learned District Munsif, Thiruvaiyaru is directed to appoint an experienced Advocate Commissioner to inspect and measure the suit property and located the 12 feet wide road and other subject matter in O.S. No.11 of 1986. (1) The Advocate Commissioner is directed to measure the property with the help of qualified District Surveyor or equivalent Officer, with the assistance of Field Measurement Book relating to Survey No.104. (2) The Commissioner as well as the Surveyor are directed to first locate the Survey No.104 and thereafter locate Survey No.104/2A and 104/2B separately. They are also directed to identify the boundaries of the 12 feet wide road precisely. They are directed to measure Survey No.104 and identify the boundaries on all four sides. Even if there were no survey stones, they should identify the same and the property has to be measured accordingly. (3) If the Advocate Commissioner or the Surveyor are obstructed from measuring any of the properties, they should approach the Sub Inspector of Police, Law and Order, Thiruvaiyaru, who is directed to give necessary protection to carry out the work. (4) The trial Court is directed to appoint the Advocate Commissioner in a period of one week from the date of receipt of copy of this order or on production of the same by either side. (5) A sum of Rs.5000 is fixed as remuneration to the Advocate Commissioner payable by the petitioners’ directly. (6) Both the parties are directed to cooperate and render necessary assistance to the Advocate Commissioner in carrying out the work and report should be filed with a period of four weeks from the date of issue of Commission Warrant.