Judgment :- 1. The appellant herein is the respondent in A.S.No.20 of 2011 on the file of the Additional Subordinate Court, Tirunelveli. The appellants in A.S.No.20 of 2011 are the plaintiffs in O.S.No.42 of 2007 on the file of the 2nd Additional District Munsif Court, Tirunelveli. 2. The plaintiffs, who are respondents herein, filed O.S.No.42 of 2007 praying for mandatory injunction to remove the encroachment made by the appellant herein (defendant) and for recovery of possession of the suit schedule property. 3. The appellant/defendant disputed the title of the plaintiffs. The appellant/defendant also disputed the pleadings made by the plaintiffs that he encroached upon the property of the plaintiffs. 4. The Trial Court namely, the 2nd Additional District Munsif Court, Tirunelveli, dismissed the suit on 05.10.2010 on the ground that there was no prayer for declaration of title of the suit schedule property. In these circumstances, the Trial Court had no option but to dismiss the suit. The respondents/plaintiffs therefore filed A.S.No.20 of 2011 as stated above. 5. In the said circumstances, the respondents filed I.A.No.11 of 2012 in A.S.No.20 of 2011 to amend the plaint so as to include the prayer for declaration. The first appellate court allowed I.A.No.11 of 2012 on 26.04.2012. 6. The appellant herein who is the respondent in A.S.No.20 of 2011 questioned the order dated 26.04.2012 in I.A.No.11 of 2012 by filing CRP (NPD) (MD) No. 2674 of 2012 before this Court. This Court dismissed the aforesaid CRP on 18.02.2014 holding that the required pleadings and evidence are already on record and therefore the amendment would not cause any prejudice to the appellant herein. 7. Now the first appellate court passed a judgment and decree dated 30.06.2014 in A.S.No.20 of 2011 by setting aside the judgment and decree dated 05.10.2010 made in O.S.No.42 of 2007 on the file of the 2nd Additional District Munsif Court, Tirunelveli. This appeal is against the aforesaid order. 8. While ordering notice of motion on 13.02.2015, this Court passed the following order:- “Notice of motion returnable in two weeks. Private notice is also permitted. 2. The learned counsel for the appellant has submitted the order of remand is solely based on the scrapping up of the report of the Advocate Commissioner. He has submitted that the appellate Court can very well appoint an Advocate Commissioner and get a report and dispose of the appeal. Private notice is also permitted. 2. The learned counsel for the appellant has submitted the order of remand is solely based on the scrapping up of the report of the Advocate Commissioner. He has submitted that the appellate Court can very well appoint an Advocate Commissioner and get a report and dispose of the appeal. The only reason as given in paragraph No.13 of the judgment in A.S.No.20 of 2011 cannot be sustained for remand. 3. The learned counsel for the appellant has also brought to my notice that during the pendency of the appeal, the respondents herein/the plaintiffs in the suit sought to, amend the prayer. The appellate Court allowed the prayer and amendment of the prayer in the suit was made. The same was challenged by way of a Civil Revision Petition No.2674 of 2012 before this Court. This Court held in the order dated 18.02.2014 in C.R.P.No.2674 of 2012 that the amended prayer could also be decided based on the available evidence already recorded through the trial. 4. The learned counsel for the appellant also cited a judgment of a Division Bench of this Court reported in Visalakshmi Ammal V. Dhanalakshmi Ammal 1989-2L.W.414. 5. In view of the above said submissions, there shall an order of interim stay for a period of two weeks.” 9. Heard both sides. 10. While setting aside the judgment and decree dated 05.10.2010 in O.S.No.42 of 2007 passed by the 2nd Additional District Munsif Court, Tirunelveli, the first appellate court has scrapped the report of the Advocate Commissioner. The Advocate Commissioner was appointed at the instance of the plaintiffs in O.S.No.42 of 2007. However, both the plaintiffs and the defendants made objections to the said report. 11. Both the learned counsels for the appellant as well as the respondents have no quarrel about the scrapping of the report of the Advocate Commissioner. But the scrapping of the report of the Advocate Commissioner could not be a reaon for remanding the matter to the Trial Court. Both of them have stated that the first appellate Court could appoint an Advocate Commissioner and get the report and dispose the appeal particularly, when this Court has stated categorically in the order dated 18.02.2014 in CRP (NPD) (MD) No. 2674 of 2012 that already pleadings and evidence are available on record. Both of them have stated that the first appellate Court could appoint an Advocate Commissioner and get the report and dispose the appeal particularly, when this Court has stated categorically in the order dated 18.02.2014 in CRP (NPD) (MD) No. 2674 of 2012 that already pleadings and evidence are available on record. For the said submission, a Division Bench judgment of this Court in S.Shanmugham vs. V.S.Sundaram & 4 others, reported in 2005-3-L.W. 366 is relied on by the learned counsel for the appellant. Paragraph 12 of the judgment is extracted hereunder:- “12. On a perusal of the judgment of the lower appellate Court, it is revealed that on the basis of both oral and documentary evidence available on record, the lower appellate Court came to the conclusion that the third defndant is also entitled to a share in 'A' Schedule property and in the sketch of the Commissioner also when it is made clear that as to how 'A' Schedule property could be partitioned and especially when the provisions under Order 41 Rules 23 to 29 of C.P.C. are not a bar to take further evidence or to appoint a Commissioner, if so necessary, and to try the apepal, as rightly pointed out by the learned counsel for the appellant, we are of the view that there is no necessity to remand the matter back to the trial Court and that the lower appellate Court itself can try the matter after taking further evidence as to the point to be decided and it can dispose of the appeal on merits and in accordance with law.” 12. In the said circumstances, the order of the first appellate Court dated 30.6.2014 setting aside the judgment and decree dated 05.10.2010 in O.S.No.42 of 2007 and remanding the matter to the Trial Court is set aside and the first appellate court is directed to dispose of the appeal in A.S.No.20 of 2011 by reframing the issues particularly, in view of the amendment made to the plaint. Further, the first appellate court could very well appoint an Advocate Commissioner, if any of the parties have filed an application for the same and could dispose of the appeal, based on the materials available on record. Therefore, there are only two things that are to be done by the first appellate court. Further, the first appellate court could very well appoint an Advocate Commissioner, if any of the parties have filed an application for the same and could dispose of the appeal, based on the materials available on record. Therefore, there are only two things that are to be done by the first appellate court. One is appointment of Advocate Commissioner, if any, based on the application made by any of the parties and the other is reframing of issues. The first appellate court is directed to dispose of the appeal within a period of nine months from the date of receipt of a copy of this judgment. The Civil Miscellaneous Appeal is disposed of accordingly. No costs. Consequently, M.P (MD) No.1 of 2015 is closed.