Judgment :- (Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 10.04.2003 passed by the learned District Munsif, Paramakudi in I.A.No.588 of 2003 in O.S.No.137 of 1995, as stated therein.) Aggrieved against the Order of allowing the Petition and scrapping the Commissioner's Report, Defendants 1 and 3 have preferred this Civil Revision Petition. The Impugned Order arises out of the order dated 10.04.2003 passed by the District Munsif, Paramakudi in I.A.No.588 of 2003 in O.S.No.137 of 1995. 2. O.S.No. 137 of 1995:- The Suit Property forms part of S.No.76/3, Keelaperungarai Village, Paramakudi Taluk, Ramnad District. Case of the Plaintiff is that the Plaintiff purchased the entire extent of property in S.No.76/3 from several persons. The First Defendant owns the land on the adjacent side / Eastern Side in S.No.77/1. The First Defendant has made a false claim to the Suit Property and attempting to prevent the Plaintiff from peacefully enjoying the Suit Property. The Plaintiff has no knowledge whether in the Survey, the Suit Property has been demarcated in the Property of the Defendant. Alleging that the Defendants are proclaiming change the physical features to substantiate the false claim, the Plaintiff has filed the Suit for Declaration of his Title over the Suit Property and for Permanent Injunction. 3. Claiming that the Suit Property is located in S.No.77/1, which is the Property belonging to the First Defendant, the First Defendant has filed the Written Statement denying the case of the Plaintiff that he is entitled to the Suit Property in S.No.76/3. According to the First Defendant, for the Property on the Eastern Side and Northern Side, Patta has been issued in the name of the First Defendant. Taking advantage of the absence of the First Defendant in the Village, the Plaintiff cut and removed the Jambo Tree. The Tahsildhar, Paramakudi had also issued a Proceeding to the effect that the Suit Property and the Tree belongs to the First Defendant. Since the Plaintiff is not entitled to the Suit Property in S.No.76/3, the Plaintiff is not entitled to the relief sought for. 4. Earlier, by the concurrent findings of the Courts below the Suit was decreed. As against the said Judgment and Decree, Defendants 1 and 3 have preferred Second Appeal in S.A.No.1220 of 2000. Since the Plaintiff is not entitled to the Suit Property in S.No.76/3, the Plaintiff is not entitled to the relief sought for. 4. Earlier, by the concurrent findings of the Courts below the Suit was decreed. As against the said Judgment and Decree, Defendants 1 and 3 have preferred Second Appeal in S.A.No.1220 of 2000. The High Court, setting aside the Judgment and Decree of the Courts below, remanded the matter to the Trial Court for fresh disposal. The matter was remitted back mainly for the purpose of issuance of Warrant to the same Advocate Commissioner with a direction to fix the location of the Property with specific Survey Number and on receipt of the Commissioner's Report, the Trial Court was directed to decide the matter afresh. 5. After the matter was remanded back, the Advocate Commissioner was appointed. The Commissioner had inspected the Suit Location on 22.02.2003 and filed the Elaborate Report. 6. I.A.No.588 of 2003:- After the Commissioner had filed his Report, alleging that the Commissioner had not properly measured the Suit Property and that there is necessity for the Appointment of another Advocate Commissioner with the help of Surveyor and the Revenue Officials, the Plaintiff has filed this application for Appointment of Another Advocate Commissioner. The Application was strongly resisted by the Defendants contending that the earlier Commissioner had taken the assistance of the Surveyor and the Revenue Officials and the Suit Property was measured from all four sides. It is alleged that since the earlier Report is not favourable, the Plaintiff has filed this Application with a view to delay the Trial proceedings. The claim of the Petitioner to measure the Suit Property with the help of another Surveyor is unacceptable. 7. Learned District Munsif found that the averment in the Counter Statement is acceptable. However, the learned District Munsif scrapping the earlier Report, reappointed the same Advocate Commissioner to measure the Suit Property with the help of Taluk Surveyor. 8. Aggrieved over the order of scrapping the earlier Report and reappointment of Advocate Commissioner, Defendants 1 and 3 have preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has contended that under Order XXVI Rule 9 and Rule 10(2) C.P.C the Commissioner could be reappointed only when the earlier Report is found to be dissatisfactory. 8. Aggrieved over the order of scrapping the earlier Report and reappointment of Advocate Commissioner, Defendants 1 and 3 have preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has contended that under Order XXVI Rule 9 and Rule 10(2) C.P.C the Commissioner could be reappointed only when the earlier Report is found to be dissatisfactory. Drawing the attention of the Court, learned counsel for the Revision Petitioner has submitted that when no such finding is recorded, the lower Court was not right in scrapping the Report and reappointing the Advocate Commissioner. Placing reliance upon the decisions reported in 98 L.W. 48, A.I.R. 1978 KARNATAKA 65 and 2000 (III) C.T.C. 78 , learned counsel for the Revision Petitioner prayed to set aside the Impugned Order and to sustain the earlier Report of the Advocate Commissioner. 9. Submitting that though the Impugned Order is not an elaborate one recording the findings as to the defects in the Report, learned counsel for the Respondent / Plaintiff has submitted that when the earlier Commissioner has not measured and fixed the boundaries, the Lower Court has rightly reappointed the same Advocate Commissioner to visit the property and measure the same with the help of Taluk Surveyor. Placing reliance upon the decision reported in A.I.R. 1987 KERALA 156, learned counsel for the Respondent has submitted that the Impugned Order in reappointing the same Advocate Commissioner is for the purpose of elucidating further details and the Impugned order does not suffer from any irregularity warranting interference. 10. Upon consideration of the contentions of both parties and Impugned Order and other materials on record, the following points arise for consideration in this Civil Revision Petition: i.Whether the order of scrapping earlier Commissioner's Report suffers from error apparent on the face of record warranting interference? ii.In view of the defects pointed out in the earlier Commissioner's Report, is not the lower Court right in reappointing the Advocate Commissioner? 11. The Suit Property in S.No.76/3 with the stated Boundaries thereon covers – East West 7 feet and North South 80 feet. In the Second Appeal in S.A.No.1220 of 2000, it was observed that the Plaintiff claims the Suit Property to be in S.No.76/3 and the Defendants claim that the Suit Property is on the Western portion of S.No.77/1. 11. The Suit Property in S.No.76/3 with the stated Boundaries thereon covers – East West 7 feet and North South 80 feet. In the Second Appeal in S.A.No.1220 of 2000, it was observed that the Plaintiff claims the Suit Property to be in S.No.76/3 and the Defendants claim that the Suit Property is on the Western portion of S.No.77/1. Learned Judge has observed "....to find out where exactly the Suit Property lies and the location of the Suit Property with specific survey number is a must and without locating the suit Property with specific Survey Number, no justifiable finding can be arrived at...." In the light of the above observation, the exact location of the Suit Property and the specific survey number i.e. Whether the Suit Property is in S.No.76/3 or S.No.77/1 is very much essential for effective determination of the material issues involved. 12. After remand, the Commissioner was appointed. With the assistance of the Surveyor and the Revenue Officials, the Commissioner has fixed the boundary as "AB". But the Plaintiff and the Defendants properties are found to have been divided by "CD" – Ridge as the dividing lane. The relevant portion of the Commissioner's Report reads "...rh;nt vz;/76?3 fhe;jp ehlhh; ,lkhFk;/ 77?1 bghparhkp ehlhh; ,lkhFk;/ ,e;j ,uz;L brhj;Jf;fisa[k; gphpj;J fhz;gpf;fg;gLtjw;F "CD" vd;w xU giHa tug;g[ cs;sJ....fpuhk g[yg;gl mst[fspd;go vy;iy eph;zak; bra;ag;gl;L cs;sJ/ mt;thW eph;zak; bra;ag;gl;l vy;iy nfhlhdJ tiuglj;jpy; "AB" vd fhz;gpf;fg;gl;Ls;sJ/ nkw;go nfhh;l;ow;F nkw;nf cs;s gFjpahdJ rh;nt vz/76?3 MFk;/ fpHf;nf cs;s gFjpahdJ rh;nt vz;/77?1 MFk;/ kw;w tptuk; tiuglj;jpy; bjspthf fhz;gpf;fg;gl;Ls;sJ...." 13. Both the counsel appearing for the Plaintiff and the Defendants have raised objection in the spot. The Commissioner seems to have recorded the objections raised by the counsel appearing for the parties in extenso. Counsel for the Plaintiff has raised the objection that the property was not properly measured by fixing the survey stones. Refuting the same, the counsel for the Defendant has raised objections on his part. Recording such objections, the commissioner has made his observations as "....vdJ ghh;itapy;:- fpuhk g[yg;glj;jpd;go Kiwahf mse;J thjp. gpujpthjpfspd; brhj;jpid gphpf;ff;Toa yad; gpf;!; bra;ag;gl;Ls;sJ/ mit tiuglj;jpy; "AB" vd fhz;gpf;fg;gl;Ls;sJ/ btl;lg;gl;l ehty; kuk; rh;nt vz;/77?1 y; ,Ue;J btl;lg;gl;Ls;sJ..." 14. The approach adopted by the Advocate Commissioner is not correct. The Advocate Commissioner ought not to have recorded such objections raised by the counsel for the Plaintiff and the Defendants and recording his own conclusion. gpujpthjpfspd; brhj;jpid gphpf;ff;Toa yad; gpf;!; bra;ag;gl;Ls;sJ/ mit tiuglj;jpy; "AB" vd fhz;gpf;fg;gl;Ls;sJ/ btl;lg;gl;l ehty; kuk; rh;nt vz;/77?1 y; ,Ue;J btl;lg;gl;Ls;sJ..." 14. The approach adopted by the Advocate Commissioner is not correct. The Advocate Commissioner ought not to have recorded such objections raised by the counsel for the Plaintiff and the Defendants and recording his own conclusion. The Plaintiff and the Defendants ought to have been directed to file their objections in the Court. Upon consideration of such objections, it is for the Court to record a finding whether the Report of the Commissioner is satisfactory or not and whether it is defective. 15. Under such circumstances, the Respondent / Plaintiff has filed the Application for Appointment of another Advocate Commissioner, requesting the Court to issue Warrant that the Property is to be measured with the help of Revenue Officials and taking the help of the qualified Surveyor. Learned District Munsif has observed that the prayer is vague and the allegations raised in the Counter Statement is acceptable. However, learned District Munsif allowed the Application reappointing the same Advocate Commissioner. Under misconception, the learned District Munsif scrapped the earlier Report. This Court is of the view that the lower Court erred in scrapping the earlier Report without recording any reason. 16. It is to be pointed out that the approach of the lower Court is erroneous. The Report filed by the Advocate Commissioner is elaborate, but that Report has been scrapped on the objection raised by the Plaintiff. Learned District Munsif ought to have applied the judicial mind to consider whether the Report is defective or not. The lower Court has ascertained that the objections raised by the Defendant in the Counter Statement is quite acceptable. However, without recording any reasons and observing that in the interest of justice the lower Court scrapped the Report. Since the Lower Court has not recorded any finding whether the earlier Report is dissatisfactory or not, the Impugned Order cannot be sustained. 17. Be that as it may. Time and again, it has been held that mere lapse in Report cannot be a ground for appointment of Second Commissioner. The Court has got discretion to appoint Second Commissioner depending upon the facts and circumstances of the case before it. But before scrapping the earlier report, the Court should record its reasons in writing, as to why the First Commissioner's Report should be scrapped. The Court has got discretion to appoint Second Commissioner depending upon the facts and circumstances of the case before it. But before scrapping the earlier report, the Court should record its reasons in writing, as to why the First Commissioner's Report should be scrapped. The learned District Munsif has not recorded any grounds for scrapping the earlier Report of the Advocate Commissioner. 18. In a decision reported in R. VISWANATHAN ..VS.. P.SHANMUGHAM AND ANOTHER (1986 (I) M.L.J. 264), this Court has held thus: "...The Trial Court has got power under Or.26 R.10 (3) C.P.C for appointment of fresh Advocate Commissioner on recording finding that the proceedings and the report of the earlier Commission are not satisfactory...." 19. This Court, in a decision reported in K.VISWANATHAN ..VS.. D.SHANMUGHAM MUDALIAR AND ANOTHER (1986 (I) M.L.J. 319) has held thus: "....Under Or.26 R.10(2) C.P.C. the Report of the Commissioner is evidence in the Suit and forms part of the records. The report of the Commissioner has therefore, evidentiary value and can be utilised by either of the parties as evidence in support of their case. This Provision cannot be set at naught by scrapping the Report. The effect of scrapping the Report is that the Report which is evidence in the case and part of the record ceased to be so and cannot be referred to by the parties. The mere fact that the Commissioner has failed to note certain features which according to the Defendant were important does not mean that the whole Report should be scrapped. Adequate provision to safeguard the interest of the parties concerned is made in sub-rule (3) of O.26 R.10 C.P.C....." 20. Reiterating the same, in a decision reported in VEPPANATHAR ALIAS KARUPPANNAN AND ANOTHER ..VS.. KALIAPPAN ( 2000 (I) L.W. 893 ) this Court has held thus: "...Under Or.26 R.10, Sub-rule (3) the Court, if it is dissatisfied with the Report, can direct setting aside the Report or the Court can direct the Commissioner to rectify the defect or deficiency, taking into consideration the objections, evidence let in, in that behalf and to file a supplementary Report. As far as possible, Commissioner, who has already visited the property should be directed to file a Supplementary Report and only if that is not possible, the Report could be scrapped....." 21. As far as possible, Commissioner, who has already visited the property should be directed to file a Supplementary Report and only if that is not possible, the Report could be scrapped....." 21. Elaborating the position regarding the Appointment of Second Advocate Commissioner, the Division Bench of the Kerala High Court in a decision reported in SWAMI PREMANANDA ..VS.. SWAMI YOGANANDA (A.I.R. 1985 KERALA 83) has held thus: "....We may at once state that the Trial Court committed a serious error in setting aside Ext.C.5(First Commissioner's Report) for the reasons stated by it or the manner in which it was set aside. Ext.C.5 has been set aside without giving proper and valid reasons and without adverting to the matter on the merits at all. We have no hesitation to hold that the Court below acted illegally and totally in excess of jurisdiction in mechanically setting aside the First Commissioner's Report (Ext.C.5) for the sole reason that a Second Commissioner's Report was ordered and obtained by the Court and in view of that, the earlier Report was superseded....." 22. The above Judgment of the Division Bench of the Kerala High Court has been referred in a number of other decisions. Elaborating the further Enquiry to be made contemplated under Or.26 R.10 (3) C.P.C by referring the decision of the Division Bench of the Kerala High Court in A.I.R. 1985 KERALA 83, in the decision reported in SIVARAMAN ..VS.. V.C.NARAYANAN (A.I.R. 1987 KERALA 156), the Kerala High Court held, "....It is not correct to say that under no circumstances without setting aside an earlier Report, the Court can issue a second Commission or the same commission to note details which have been omitted by him when he made the First Report. "Further enquiry to be made" contemplated by O.26 R.10(3) C.P.C pre-supposes that an enquiry by the same Commissioner also is possible if the Court feels so. If the Report of the First Commissioner is found to be deficient on any point, the proper course would be to direct same Commissioner to remedy the defects....." 23. Assailing the Impugned Order that without recording the reasons, the lower Court was not right in scrapping the earlier Report, learned counsel for the Revision Petitioners has drawn the attention of the Court to the decision reported in R.VISWANATHAN ..VS.. Assailing the Impugned Order that without recording the reasons, the lower Court was not right in scrapping the earlier Report, learned counsel for the Revision Petitioners has drawn the attention of the Court to the decision reported in R.VISWANATHAN ..VS.. P.SHANMUGHAM AND ANOTHER ( 1985 (I) M.L.J. 254 = 98 L.W. 48) this Court has held, "...It is well settled propositions that until the Court is dissatisfied with the proceedings and report of the Commissioner earlier appointed, it will not be proper to ignore the same and direct even further enquiry, much less the scrapping of the earlier report as a whole and appoint a fresh Commissioner. The power is circumscribed by the principles under Order 26, Rule 10(3). The power can be exercised only after the Court below renders a finding that the proceedings and the report of the earlier Commissioner are not satisfactory and there is need for a further enquiry....." 24. Considering in the light of the above well settled position, the Impugned Order of the Lower Court cannot be sustained since the learned District Munsif has not recorded any reasons for setting aside the earlier Report. Mere Statement that in the interest of Justice, the Report is to be scrapped is not sufficient. The Impugned Order relating to "Scrapping of the Report" is therefore to be set aside. 25. Onbehalf of the Respondent / Plaintiff, it has been stated that the Commissioner has not measured the Property by fixing the Boundaries. By the perusal of the Plan filed along with the Report, it is seen that it is not a Plan drawn to Scale. The Advocate Commissioner seems to have observed that the Plan is prepared "as per FMB and Field Survey, AB is Field Boundary Line between Plaintiff and Defendants lands. Measures 29.2 M North-South". FMB and the Field Survey Plan are not enclosed. The Plan appears to be a Rough Plan, just indicating the Survey Number and the location of the Jambo Tree. The parties have already litigated the rights upto the High Court. The matter has been remanded back to the Trial Court only for the purpose of fixing the Boundaries of S.No.76/3 and S.No.77/1. The Report and the Plan of the Advocate Commissioner may not be sufficient to effectively adjudicate the issues involved in the Suit. The parties have already litigated the rights upto the High Court. The matter has been remanded back to the Trial Court only for the purpose of fixing the Boundaries of S.No.76/3 and S.No.77/1. The Report and the Plan of the Advocate Commissioner may not be sufficient to effectively adjudicate the issues involved in the Suit. Hence, the appointment of Advocate Commissioner for the purpose of measuring the Suit Property and to submit the Supplementary Report with the Plan drawn to the Scale is to be sustained. 26. For the foregoing reasons, this Civil Revision Petition is partly allowed. The Impugned Order dated 10.04.2003 of learned District Munsif, Paramakudi in I.A.No.588 of 2003 in O.S.No.137 of 1995 regarding the scrapping of the Report is set aside. It is ordered that the earlier Report shall form part of the Court Record and shall be evidence as contemplated under Or.26 R.10 (2) C.P.C. 27. The order of reappointing the same Advocate Commissioner is confirmed. The Trial Court is directed to issue Warrant to the Advocate Commissioner to measure the Suit Property with the help of the Taluk Surveyor and to fix the boundaries and submit a Supplementary Report with the Plan drawn to Scale. While issuing Warrant to the Advocate Commissioner, the lower Court is directed to issue suitable directions to the Advocate Commissioner to file a Comprehensive Report with the Plan drawn to Scale. The connected C.M.P.No.10335 of 2003 is closed. In the circumstances of the case, there is no order as to costs.