Judgment : This Second Appeal has been directed against the Judgment and Decree, dated 07.11.2008, passed in A.S.No.6 of 2008, on the file of the learned Subordinate Judge, Virudhunagar, confirming the Judgment and Decree, dated 23.08.2007, passed in O.S.No.375 of 2004, on the file of the learned District Munsif, Virudhunagar. 2. The appellant/plaintiff instituted the suit, in O.S.No.375 of 2004, on the file of District Munsif, Virudhunagar, against the respondents/defendants, seeking declaration with respect to right of pathway, alleging that it has been acquired by virtue of succession, which accrued to him at a partition and he has been in enjoyment of the same, however, the respondents/defendants are interfering with his using of the pathway. 3. The first respondent/first defendant filed written statement resisting the suit making several allegations. The subsistence of it is that the plaintiff has no such right over the suit pathway. 4. The second respondent/second defendant filed written statement taking a stand midway, as between the plaintiff and the first defendant. He would say that there is a way, but it is a common way. 5. With this divergent pleas, after framing of the necessary issues, parties went for an hot contest before the Trial Court. Voluminous oral and documentary evidence have been let in. The Trial Court scanned the materials. Ultimately, operation success, but patient died. The suit has been dismissed blaming the plaintiff for not having brought to the notice of the Court clearly the very existence of the suit pathway. 6. In such circumstances, the plaintiff has been driven to go before the Appellate Court/Sub Court, Virudhunagar, in A.S.No.6 of 2008. 7. In the wake of result of the legal battle before the District Munsif, Virudhunagar, the plaintiff had sharpened his mind. Perhaps, he realized his folly in not having taken out an application in the Trial Court for bringing the physical structure of the suit property to the notice of the Court and he was let to believe that had he taken such a step, the course of litigation in the Trial Court would have been different. 8. Rightly, he filed a petition in I.A. No. 33 of 2008 for appointment of an Advocate/Commissioner. But, it's life span was very short in the said appellate Court. It had it's death, but not after a full fledge fight, in other words, it was closed. 9. 8. Rightly, he filed a petition in I.A. No. 33 of 2008 for appointment of an Advocate/Commissioner. But, it's life span was very short in the said appellate Court. It had it's death, but not after a full fledge fight, in other words, it was closed. 9. In this connection, the learned counsel for the first respondent would read the few lines snatched from the mouth of P.W.1, during his cross-examination, which are to the effect that as he was so certain that he will succeed on his title deed, did not avail of the opportunity of appointment of an Advocate/Commissioner. 10. Perhaps, the second respondent, since taken the plea that it is a common pathway, if it is held to be a common pathway, it will also enure to his benefit, did not play much role, except watching the fierce legal battle between the plaintiff and the first defendant. 11. Keeping aside the cross-examination of P.W.1 by the first defendant, if we peruse the Judgment of the First Appellate Court, like the Trial Court, it had also found fault with the plaintiff in having not sought for appointment of an Advocate/Commissioner. It is evident from para No.13 of the Judgment of the First Appellate Court. Infact, it is as against the reality of the situation, because actually plaintiff had filed an application for Advocate/Commissioner in the first appellate Court. 12. Courts are intended to do complete justice. Parties are coming to the Court when they have fight/lis, if they have no fight, they have no business to come to Court. When there are controversies, they were exposed by way of pleadings, namely, plaint and written statement and so on. A clear reading and understanding of the pleadings will give an idea as to the scope of the controversy and as to the grey areas, which are to be uncovered, with the help of the arguments of the counsel and evidence on record. 13. Parties coming to the Court must prove their respective cases. But, a court is not for witnessing any of their acrobatics. Court is to do justice. There may be action and inaction on the part of the parties with respect to certain vital aspects, such as physical features of the suit property required to be clearly placed before the Court. Then the Court has to play positive role. But, a court is not for witnessing any of their acrobatics. Court is to do justice. There may be action and inaction on the part of the parties with respect to certain vital aspects, such as physical features of the suit property required to be clearly placed before the Court. Then the Court has to play positive role. If the Court requires any oral and documentary evidence on certain vital aspects of the case, then at any stage of the case, the Court can direct the parties to take steps, with respect to physical features of the property by appointing an Advocate/Commissioner. 14. When certain aspects of factual matrix are disputed and that cannot be gauged by oral evidence, physical features of the suit property necessarily have to be ascertained by an Officer of the Court, namely, Advocate/Commissioner. The purpose for which such appointments are sought for have been stated above, but that cannot be used for any ulterior purpose, namely, to prolong the litigation. But, that is not the case here. 15. Considering the divergent views placed by the learned counsels, it is almost a triangle contest. One thing is clear that by oral and documentary evidence, the Court is not clear about the very location, physical features of the suit pathway mentioned in the plaint schedule. Of course, title issue has been litigated by the parties, that is a matter for consideration of documents. But, the very existence of the pathway, it's location and dimension cannot be clearly understood by oral evidence. 16. P.W.1, in his cross-examination, may say so many things. When the Court requires, even at the appellate stage as in the present case before the First Appellate Judge, the Court is bound to consider ascertainment of such physical features of the suit property. That will also relieve the Court from the pangs of fixing the identity of the suit property. 17. It is not a matter of closure of the petition for appointment of Advocate/Commissioner. If we see the second part of Order XLI Rule 27(1)(b) of the Code of Civil Procedure, the Appellate Courts were given power to seek evidence, documentary and oral, which would include a report by an Advocate/Commissioner, which will assist the Court in rendering correct finding to clear the controversy. It can be done at the motion of anyone of the parties, even suo-motu by the Court itself. It can be done at the motion of anyone of the parties, even suo-motu by the Court itself. The language employed in the said Order XLI Rule 27(1)(b) is very wide and sweeping in nature, but it is intended to do justice and not to complicate the issues. 18. In this case, both the Trial Court as well as the Appellate Court and this Court were of the view that in as much as the physical features and existence and location of the suit pathway with reference to the properties of the contesting parties is very essential to take a decision in this matter. In this purpose, appointment of an Advocate/Commissioner ought to have been done, but even now time is not lost, more particularly as the litigation is not yet over, concrete steps have to be taken. Though the learned counsels are divergent, with respect to their cases, but, they are unanimous on the need to ascertain the physical features of the suit pathway. 19. In view of the fore-goings, we shall come out with the followings : (i) This Second Appeal is allowed. (ii) The Judgment and Decree, dated 07.11.2008, passed in A.S.No.6 of 2008, on the file of the learned Subordinate Judge, Virudhunagar, confirming the Judgment and Decree, dated 23.08.2007, passed in O.S.No.375 of 2004, on the file of the learned District Munsif, Virudhunagar, are set aside. (iii) The suit in O.S.No.375 of 2004 is remanded back to the learned District Munsif, Virudhunagar, for fresh disposal. (iv) The learned District Munsif, Virudhunagar, will appoint an Advocate/Commissioner, who will inspect the suit schedule property. (v) The Advocate/Commissioner will make inspection, after notice to both the parties and he shall note down the physical features of the suit property, properties of the first and second defendants and also measure the properties and submit his report. (vi) The learned Advocate/Commissioner will draw a Sketch Map. If needs be, he can have the assistance of Town Surveyor and also of the concerned Village Administrative Officer. (vii) The learned District Munsif, will fix a reasonable and decent sum as fee to the Advocate/Commissioner, which shall be paid by the appellant. (viii) On receipt of the report of the Advocate/Commissioner, the learned District Munsif, Virudhunagar, will give opportunity to both sides to file their objections, if any. (vii) The learned District Munsif, will fix a reasonable and decent sum as fee to the Advocate/Commissioner, which shall be paid by the appellant. (viii) On receipt of the report of the Advocate/Commissioner, the learned District Munsif, Virudhunagar, will give opportunity to both sides to file their objections, if any. (ix) Thereafter, the learned District Munsif, Virudhunagar, will took up the suit for trial and dispose it of afresh according to law giving reasonable opportunity to both sides and if they require, permit them to adduce further relevant evidence, if any, and thereafter dispose of the suit according to law. (x) Costs throughout shall abide by the result of the suit.