Judgment :- (Petition filed under Article 227 of the Constitution of India against the Order passed by the Additional District Munsif Court, Srivilliputhur in I.A.No.858 of 2004 in O.S.No.360 of 2000 dated 8.10.2004.) This Revision is filed against the order of Additional District Munsif, Srivilliputhur made in I.A.858/2004 in O.S.360/2000 dated 8.10.2004, dismissing the Application filed under Order 26 Rule 9 C.P.C seeking appointment of Advocate Commissioner. 2. At the time when the Revision Petition was admitted, in C.M.P.No.159/2005 interim stay was granted. V.C.M.P.80/2005 is filed to vacate the order of interim stay. When the miscellaneous petition came up for hearing, with the consent of both counsel, the main writ petition itself has been taken up for final hearing. 3. O.S.360/2000: - The suit property relates to the site in Block No.248-A of Keezharajakularaman village. The case of the Plaintiff is that the site in Block Nos.262, 263 and the suit property have been in possession and enjoyment of their family. Her husband, Maruthappa Thevar has been in possession and enjoyment of the properties in the said Block Numbers. Maruthappa Thevar is employed in Army. Being a Service-man, the suit property was assigned to the Plaintiff. The house patta and the plan have been granted to the Plaintiff. The site in B.No.263 has been assigned to Murugan, son of the Plaintiff and the site in B.No.262 has been assigned to Maruthappa Thevar. Further case of the Plaintiff is that the Plaintiff is entitled to be in possession of the suit property. The Plaintiff has not encroached any portion either on the Northern side or on the Western side. According to the Plaintiff, she had put up 6 ft. Compound Wall on the North-South direction, leaving 2 ft vacant space on the Western side- outside the Compound Wall. While so, D.1, Keezharajakularaman Panchayat has issued a notice on 23.8.2002 alleging that the Plaintiff has encroached the street portion and directing removal of the encroachment. Alleging that there is no encroachment, the Plaintiff has filed the suit for Permanent Injunction restraining the Defendants from interfering with her possession. 4. D.1 – Keezharajakularaman Panchayat has resisted the suit filing written statement stating about the encroachment. 5. O.S.34/2001: - Plaintiff’s brother-in-law, namely, one Iyyasamy has filed O.S.34/01 on the file of Additional District Munsif, Srivilliputhur for declaration and permanent injunction against Kutti @ Maruthappa Thevar and one Shanmugavel Thevar. 4. D.1 – Keezharajakularaman Panchayat has resisted the suit filing written statement stating about the encroachment. 5. O.S.34/2001: - Plaintiff’s brother-in-law, namely, one Iyyasamy has filed O.S.34/01 on the file of Additional District Munsif, Srivilliputhur for declaration and permanent injunction against Kutti @ Maruthappa Thevar and one Shanmugavel Thevar. In the said suit, the Plaint Schedule Property in O.S.360/2000 has been shown as the second schedule Property. In O.S.34/01 I.A.137/01 was filed for appointment of Advocate Commissioner to show that the disputed property is the lane belonging to the Government. In the said suit, Advocate Commissioner was appointed, who has filed the report on 31.3.2001 finding that Survey No.2064/12 is classified as Government Street as per the Revenue Records. 6. On knowing about the pendency of the suit in O.S.360/2000, the second Defendant / Pitchai @ Pon Irulappan and others have filed I.A.1393/2000 to implead themselves as Defendants to the said suit. In support of their contention to implead them as Defendants, they have filed Exs.P.12 and P.13 – Report and Plan of the Advocate Commissioner. That Application was allowed on 6.7.2001. Pitchai @ Pon Irulappan and Shanmugavel were impleaded as Defendants 2 and 3 and after the death of Shanmughavel, his Legal Representatives D.4 to D.7 were also impleaded. As against the said order, the Plaintiff has preferred Civil Revision petition in C.R.P.(PD) No.1291/02 before the Madras High Court and the same was also dismissed on 29.11.2002. 7. I.A.858/2004: - The Revision petitioner / Plaintiff has filed this Application for appointment of an Advocate Commissioner. According to the Plaintiff, the appointment of Advocate commissioner is necessary to show that she has put up North-South Compound Wall in the suit property. Further on the Western side of the Compound Wall, she has left 2 feet vacant space for maintaining the Compound Wall and that there is no encroachment. To note down the physical features and to find out that there is no encroachment, the above Application was filed for appointment of Advocate Commissioner. 8. The Application for appointment of the Advocate Commissioner was resisted by the Defendants 2 and 3 on the ground that already an Advocate Commissioner was appointed in the suit in O.S.34/01, who has filed a report, which is comprehensive. 8. The Application for appointment of the Advocate Commissioner was resisted by the Defendants 2 and 3 on the ground that already an Advocate Commissioner was appointed in the suit in O.S.34/01, who has filed a report, which is comprehensive. It is further contended that the property in this suit in O.S.360/2000 and the property in dispute in O.S.34/01 is one and the same and only on the strength of the Commissioner's Report and Plan, in O.S.34/01 Defendants 2 and 3 have been impleaded as necessary parties and that there is no necessity for appointment of another Advocate Commissioner. 9. The said application was dismissed by the trial Court on the finding that the earlier report of the Advocate Commissioner filed in O.S.34/01 would be sufficient for resolving the dispute between the parties. Learned District Munsif has further found that the appointment of another Advocate Commissioner to measure the suit property would cause difficulties in appreciating the earlier Advocate Commissioner's report. 10.Aggrieved over the dismissal of the Application for Appointment of an Advocate Commissioner, the Plaintiff has preferred this Revision Petition. Learned counsel for the / Revision Petitioner has submitted that the appointment of Advocate Commissioner is necessary for taking the measurements. The main contention of the Revision petitioner is that when the Plaintiff is not a party in the suit O.S.34/01, the Plaintiff cannot be compelled to get along with her case, with the earlier report filed by the Commissioner in O.S.34/01. Submitting that in the suit O.S.34/01, the Revision petitioner / Plaintiff being not a party would not have the opportunity to challenge the report of the Commissioner,it is contended that the refusal to appoint Advocate Commissioner in this suit would cause serious prejudice to the Plaintiff. The impugned order is assailed contending that the position in 2004 (2) Law Weekly,Page 236 (Chinnan VS Marappan) referred in the order has no application to the case in hand since the party in O.S 34/01 and in O.S.360/2000 are different. 11. Countering the arguments, learned counsel for the Respondents / Defendants has submitted that in the suit in O.S.34/01 an Advocate Commissioner was appointed and the Commissioner has clearly noted the encroachment of the land by Maruthappa Thevar (Husband of the Plaintiff) in Survey No.2064/12, which is classified as Government Street. 11. Countering the arguments, learned counsel for the Respondents / Defendants has submitted that in the suit in O.S.34/01 an Advocate Commissioner was appointed and the Commissioner has clearly noted the encroachment of the land by Maruthappa Thevar (Husband of the Plaintiff) in Survey No.2064/12, which is classified as Government Street. Drawing the attention of the Court to the Commissioner's Report filed in O.S.34/01, learned counsel has submitted that in view of elaborate report of the Commissioner filed in O.S.34/01, if another Advocate Commissioner is appointed, it would lead to confusion in appreciating the physical features and encroachment thereon. 12. Whether there is improper exercise of discretion in dismissing the Application for appointment of Advocate Commissioner and whether the impugned order warrants interference? - is the only point that arises for consideration in this Revision Petition. 13. O.S.360/2000 was filed by the Plaintiff, Lakshmiammal wife of Maruthappa Thevar as against D.1 – the President, Keezharajakularaman Panchayat, for Permanent Injunction restraining the Panchayat from interfering with her possession of the suit property. The suit property relates to the site in Block No.248-A of Keezharajakularaman Village; East-West – 28 feet; and North-South 20 ½ feet. After the filing of the suit, Defendants 2 and 3 have filed I.A.1393/2000 for impleading them as parties to the suit. One Ayyasamy filed O.S.34/01 against the Shanmuga Thevar and Kutti – father of the second Defendant in the said suit. Item No.1 is the site in Survey No.2064/11 and the house thereon. Item No.2 is the property in Survey No.2064/12, which is classified as street. In the Commissioner's Report filed in O.S.34/01, Item No.2 is detailed as under: " kD 2tJ jgrpy; brhj;J vd;gJ rh;nt vz; 2064/12 cssJ. MJ tUtha;j; Jiw Mtzq;fspy; muRf;Fg; ghj;jpa;ggl;l bjU vd tifg;gLj;jg;gl;Ls;sjhf e[py msitah; Twpdhh;. ,J thjp kw;Wk; uhkh; njth; tPl;Lf;Fk; fpHf;F. kUjg;g njth; tPl;Lf;Fk; nkw;F; kDjhuh; g[Q;ir epyj;Jf;Fk; tlf;F; fpHnky; bkapd; nuhl;ow;Fk; bjw;fhf mike;Js;sJ. ,jw;Fs;gl;l gFjpahFk;. ,jdi vdJ tiuglj;jpy; ,. vg;. $}.vr; vd fhz;gpj;Js;nsd;. Further the Commissiner has noted the encroachment / Construction of Compound Wall in the Street portion by Marthuappa Thevar, husband of the Plaintiff. The Commissioner has stated about the encroachment as under : mjw;F mLj;J I-ghapz;l vd;gJ n$ - ghapz;oypUe;J I-ghapz;l; tiu c;ss gFjpahd g[y vz; 2064/12 bjUtpt; kUjg;g njth; vd;gtuhy; fl;lg;gl;Ls;s fhk;gt[z;l; Rth; MFk; ic fhk;gt[z;l; Rth; ghh;g;gjw;F g[jpajhf cs;sJ. The Commissioner has stated about the encroachment as under : mjw;F mLj;J I-ghapz;l vd;gJ n$ - ghapz;oypUe;J I-ghapz;l; tiu c;ss gFjpahd g[y vz; 2064/12 bjUtpt; kUjg;g njth; vd;gtuhy; fl;lg;gl;Ls;s fhk;gt[z;l; Rth; MFk; ic fhk;gt[z;l; Rth; ghh;g;gjw;F g[jpajhf cs;sJ. ic fhk;gt[z;l; RtUf;Fk; I. $p[ 2 rtUf;Fk; ,ilg;gl;l ePsk; 7.1/2 mo MFk; mjd;gpd;g[ $p 1 Rtw;wpypUe;J fpH nkyhf 1.1/2 mof;F mjhtJ $p ghapz;l tiu g[y vz; 2064/12 bjUtpy; kUjg;g njtuhy; fl;lg;gl;Ls;sJ fpH nky; 9 mof;F kUjg;g njtuhy; g[y vz; 2064/12-y; fl;lg;gl;Ls;sJ. 14. Item No.2 in O.S.34/01 obviously referred to the present plaint schedule property. The construction of Compound Wall, as stated in para 7 of the plaint, is referred to by the Advocate Commissioner. In the report of the Commissioner, the portion shown as "Well" on the Southern side, is the property of the Defendants 2 and 3. The Well and their property being the suit property on the Southern side, on behalf of Defendants, it is contended that in view of the encroachment by the Plaintiff and her husband, Maruthappa Thevar, by constructing compound wall obstructing the street, they have blocked path, because of which, Defendants are unable to proceed to their land. 15. In the petition seeking for appointment of Advocate Commissioner, the Plaintiff has stated that appointment of Advocate Commissioner is necessary to note down the physical features and to measure the same by the Advocate Commissioner. It is to be noted that the Advocate Commissioner, in O.S.34/01 has measured the suit property with the help of Surveyor and filed his detailed Report. If the Advocate Commissioner is appointed directing him to measure the property, such report based on measurement thereon, would vary from the earlier report creating difficulties in appreciating the earlier Advocate Commissioner's Report. Learned Additional District Munsif was right in refusing to appoint the Advocate Commissioner stating that the Commissioner cannot accurately measure the property. In this Revision, learned counsel for the Revision petitioner has submitted that another Advocate commissioner may be appointed to measure the property with the help of Surveyor. In view of the availability of comprehensive report filed in O.S.34/01, the request cannot be countenanced. 16. The object of appointment of Commissioner is to note the physical features and to obtain evidence for elucidating the matters, which are based on the physical features. In view of the availability of comprehensive report filed in O.S.34/01, the request cannot be countenanced. 16. The object of appointment of Commissioner is to note the physical features and to obtain evidence for elucidating the matters, which are based on the physical features. As noted earlier, the Commissioner was appointed in O.S.34/01 to measure the property with the help of Surveyor in S.Nos.2064/11 and 2064/12. The said report relates to the suit property. The trial Court has satisfied itself that the said report is sufficient and declined to appoint the Advocate Commissioner. There is no improper exercise of discretion warranting interference by this Court. 17. In its order, the trial Court has referred to the decision reported in 2004(2) Law Weekly, page 236,(Chinnan VS Marappan) wherein the High Court has set aside the impugned order holding that it would not be proper to appoint a new Commissioner when already the Commissioner was appointed in another suit and he visited the property and filed his report. Learned counsel for the Revision petitioner sought to make a distinction that in the said case, the parties in the earlier suit were the same parties in the later suit; but in the present case, the Plaintiff is not a party in O.S.34/01 and hence, the Commissioner's Report filed in O.S.34/01 would not be sufficient to prove the Plaintiff's case in O.S.360/2000. It is submitted that the Plaintiff being not a party to O.S.34/01, if the report filed in O.S.34/01 is received, much prejudice would be caused to the Plaintiff, since she had no opportunity of filing her objection to the said Commissioner's Report. Though this contention appears to be correct, it cannot be the reason for appointment of another Commissioner. No doubt, the Plaintiff had no opportunity to file her objection to the said Commissioner's Report; but that Report itself is not conclusive and parties can adduce other evidences, raising objection to the Commissioner's Report. The Plaintiff is not right in contending that receiving the Commissioner's report filed in O.S.34/01 would cause serious prejudice to her, and it does not merit acceptance. 18. Learned counsel for the Revision petitioner submitted that no prejudice would be caused to the Defendants by appointing another Advocate Commissioner in this suit,since the remuneration would be paid by the Plaintiff. The Plaintiff is not right in contending that receiving the Commissioner's report filed in O.S.34/01 would cause serious prejudice to her, and it does not merit acceptance. 18. Learned counsel for the Revision petitioner submitted that no prejudice would be caused to the Defendants by appointing another Advocate Commissioner in this suit,since the remuneration would be paid by the Plaintiff. The appointment of another Commissioner merely on the ground that the other party to the proceedings cannot be prejudiced or that the remuneration for the Commissioner would be paid by the Applicant, would not be a healthy practice. If such course is adopted, the party being not satisfied with the Commissioner's report, might seek for the appointment of successive Commissioner till he is able to get a report of his choice. The point alleged by the Plaintiff that she would be paying remuneration and that the Defendants cannot be prejudiced by the appointment of Advocate Commissioner cannot be a ground for Appointment of another Advocate Commissioner. There is no error or serious infirmity warranting interference. This Revision has no merits and is bound to fail. 19. In the result, the order dated 8.10.2004 made inI.A.858/04 in O.s.360/2000 by the Additional District Munsif, Srivilliputhur is confirmed and this Revision petition is dismissed. Consequently, C.M.P.No.158/05 and V.C.M.P.80/2005 are dismissed. In the circumstances of the case, there is no order as to costs. Learned Additional District Munsif, Srivilliputhur is directed to expedite the trial in O.S.360/2000, (if found necessary to try along with O.S.34/01) and dispose of them at an early date.