JUDGMENT (Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Decree and Judgment dated 20.08.2011 made in A.S.No.7 of 2007 on the file of the Subordinate Court, Gingee, reversing the Decree and Judgment dated 17.01.2006 made in O.S.No.163 of 1996 on the file of the Additional District Munsif Court, Gingee.) 1. The plaintiff is the appellant in this Second Appeal. Since the plaintiff died during the pendency of the second appeal, appellants 2 to 7 have been brought on record as legal representatives of the deceased sole appellant. 2. The plaintiff filed the suit seeking for the relief of declaration of title and for permanent injunction. 3. The case of the plaintiff is that the total extent of Survey No.40/1 is 2.86 acres. Out of the total extent, 2.32 acres are common properties of Ponnusamy Gounder and his sons Dhanapal Gounder and Saminatha Gounder. According to the plaintiff, they were enjoying an extent of 2.32 acres on the whole. A suit came to be filed in O.S.No.255 of 1971 and during the pendency of the suit, there was a compromise between the parties. As per the compromise, the 1st and 2nd items of property were alloted to the share of the plaintiff measuring an extent of 1 acre 0.84 cents was alloted to Damodara Gounder. Remaining 48 cents was kept intact with an understanding that it will be separately measured with the help of the surveyor and half of it viz., 24 cents will be allotted to the plaintiff. This portion has been described as the 3rd item in the suit property. Thus, the plaintiff is claiming absolute right and title over items 1 to 3 of the suit schedule properties. 4. The grievance of the plaintiff is that the defendants started interfering with the portion and enjoyment of the plaintiff and were denying the right of the plaintiff. Hence, the suit came to be filed against the defendants seeking for the relief of declaration of title and for permanent injunction. 5. The 1st and 2nd defendants filed a written statement and they took a stand that the subject matter in O.S.No.255 of 1971 covered a total extent of 2.32 acres. The defendants did not deny about the compromise decree that was passed during the final decree proceedings. 5. The 1st and 2nd defendants filed a written statement and they took a stand that the subject matter in O.S.No.255 of 1971 covered a total extent of 2.32 acres. The defendants did not deny about the compromise decree that was passed during the final decree proceedings. According to the defendants, there is no 3rd item of property that is available as claimed by the plaintiff and the plaintiff has been in possession and enjoyment of the 1st and 2nd items of properties which was allotted in his favour and those were the properties which were described as items 2nd and 4 in the final decree proceedings which ultimately ended in compromise. Thus, the defendants questioned the very existence of the 3rd item of the suit property and sought for the dismissal of the suit insofar as this item is concerned. 6. The trial Court on considering the facts and circumstances of the case and after appreciating the oral and documentary evidence found that the plaintiff is entitled for the relief sought for in the suit and accordingly, the suit was decreed as prayed for. Aggrieved by the same, the 1st and 2nd defendants filed an appeal before the Sub Court, Gingee in A.S.7 of 2007. The lower Appellate Court on reappreciation of the oral and documentary evidence and after considering the findings of the trial Court, allowed the appeal insofar as the 3rd item of the suit property is concerned and to that extent, the judgment and decree of the trial Court was modified. Aggrieved by the same, the plaintiff filed the present Second Appeal. 7. When the Second Appeal was admitted, the following substantial questions of law were framed by this Court: 1. Whether the admission of the defendants can be a ground to grant the relief sought for by the plaintiff? 2. When the identity of Item No.3 is doubted by the Lower Appellate Court, and whether a duty is cast on the Court to appoint an Advocate Commissioner to identify the property? 8. Heard Mr.P.Srinivas, learned counsel for the appellants and Mr.G.Rajan, learned counsel for the respondents. This Court also carefully considered the materials available on record and also the findings of both the Courts below. 9. 8. Heard Mr.P.Srinivas, learned counsel for the appellants and Mr.G.Rajan, learned counsel for the respondents. This Court also carefully considered the materials available on record and also the findings of both the Courts below. 9. The learned counsel for the appellants submitted that the trial Court took into consideration the admission made by DW-2 and DW-1 during the cross examination and also had taken into account Exhibits A4 to A-15, which are the kist receipts pertaining to the 3rd item of the suit property and held that the plaintiff has proved the ownership, title and possession of the 3rd item of the suit properties. He further submitted that the lower Appellate Court erroneously interfered with the findings on the ground that there was no evidence to substantiate that item no.3 of the suit property is in enjoyment of the plaintiff. According to the learned counsel for the appellants, the said finding is perverse and contrary to the evidence available on record and it requires the interference of this Court. 10. Per contra, the learned counsel for the respondents submitted that the very description of the 3rd item of the suit property was unclear and the plaintiff was attempting to get a relief for a non-existent property. The learned counsel further submitted that the compromise decree itself provided for a mechanism, if in case the parties do not agree while dividing the 48 cents and if the plaintiff had a grievance in getting a share out of the 48 cents, he should have filed only an execution petition and an independent suit is not maintainable. It was further submitted that the defendants had taken a stand that the 3rd item of the suit property is not available and there was a problem in even identifying this property. Inspite of the same, the plaintiff never even took steps for appointment of Advocate Commissioner to conduct an inspection and to note down the physical features and by undertaking this process, there would have been more clarity in assessing whether the 3rd item of the property was actually available on the ground. The learned counsel submitted that the lower Appellant Court had assigned reasons and there is no ground to interfere with the same. 11. This Court on carefully going through the plaint finds that the pleadings are totally confusing and unclear in understanding the extent of property that is available. The learned counsel submitted that the lower Appellant Court had assigned reasons and there is no ground to interfere with the same. 11. This Court on carefully going through the plaint finds that the pleadings are totally confusing and unclear in understanding the extent of property that is available. The plaintiff has not explained the same in a cogent manner. The trial Court had decreed the suit by taking into consideration the oral evidence of DW-2 and DW-1 and the kist receipts marked as Exhibits A-4 to A-15. 12. The lower Appellate Court on reappreciation of the oral and documentary evidence found that there was no dispute with respect to Ex.B-3, which is the compromise petition that was filed in the earlier proceedings. The lower Appellate Court also took into consideration the compromise decree that was marked as Ex.A-3. On considering the same, it was found that the plaintiff was allotted item nos.2 and 4 as per the plaint that formed part of the compromise decree. Item nos.1 and 3 was allotted to Damodara Gounder. This Damodara Gounder is the father of the defendants. According to the plaintiff, the 3rd item of the suit schedule measures an extent of 24 cents. This was claimed by the plaintiff on the ground that 48 cents was left undivided under the compromise decree and it was agreed that each party will get 24 cents out of it. Thus, this 24 cents was shown as item no.3 in the suit schedule property. 13. There is no dispute that the father of the defendants was allotted 84 cents and they are not claiming any right over and above 84 cents. According to the plaintiff, he is in possession and enjoyment of 24 cents that is shown in the 3rd item of suit property and the plaintiff has not even pleaded that the 48 cents that remained undivided was totally in possession and enjoyment of the father of the defendants. Therefore, the crux of the issue is as to when the division took place and when 24 cents was allotted to the plaintiff and was a patta issued for this 24 cents in favour of the plaintiff. 14. While considering the above questions, the trial Court takes into consideration the evidence of DW-2. This witness had stated that there is nothing called as the 3rd item available as claimed by the plaintiff. 14. While considering the above questions, the trial Court takes into consideration the evidence of DW-2. This witness had stated that there is nothing called as the 3rd item available as claimed by the plaintiff. Similarly, DW-1 has also stated that he is not aware about the availability of item no.3 in the suit property. It is not known as to how the statements made by DW-1 and DW-2 can be taken to be admissions. They have consistently said that there is no 3rd item of property as claimed by the plaintiff and they are not aware about any such property. Therefore, the findings of the trial Court as if, these two witnesses had admitted the availability of the 3rd item of the suit property is not correct. That apart, the kist receipts that were relied upon by the trial Court only shows the survey number of the property and for all the three properties, the survey number is the same and therefore, there is nothing to show that any of the kist receipts particularly was confined to the 3rd item of the suit property. Therefore, the trial Court was not right in relying upon the kist receipts to decide on the title and possession of the plaintiff. 15. The lower Appellate Court had categorically found that in view of the specific stand taken by the defendants, the burden of proof is upon the plaintiff to prove the existence of the 3rd item of the suit property. On analysing the materials available on record, the lower Appellate Court came to a conclusion that the plaintiff miserably failed to prove his case with respect to the 3rd item of the suit property. The plaintiff did not even taken steps to appoint an Advocate Commissioner to identify the 3rd item of the suit property. The lower Appellate Court assigned sufficient reasons while reversing the findings of the trial Court with respect to the 3rd item of the suit property. 16. In the considered view of this Court, the burden of proof was upon the plaintiff to establish the existence of the 3rd item of the suit property. The plaintiff had unnecessarily filed this suit. As per the compromise decree, 48 cents of land was kept undivided. The compromise decree itself provided a mechanism by filing an execution petition if there was a difficulty in sharing the undivided property. The plaintiff had unnecessarily filed this suit. As per the compromise decree, 48 cents of land was kept undivided. The compromise decree itself provided a mechanism by filing an execution petition if there was a difficulty in sharing the undivided property. If really, the plaintiff had any grievance in sharing the undivided portion, the proper procedure would have been to file an execution petition as per the compromise decree. An independent suit ought not to have been filed by the plaintiff. Even otherwise, this Court does not find any specific admission on the side of the defendants with regard to the availability of the 3rd item of the suit property as claimed by the plaintiff. The first substantial question of law is answered accordingly. 17. The defendants had taken a very specific stand that item no.3 of the suit property is not available. The description of the property given by the plaintiff in the pleadings and the evidence let in by the plaintiff does not prove the existence of the 3rd item of the suit property. Under such circumstances, the plaintiff must have atleast taken steps to appoint an Advocate Commissioner to inspect the property and to note down the physical features. By doing so, the topography of the entire property would have been easily assessed and if really the 3rd item of the suit property was available, the same could have been identified. It is not for the Court to volunteer and appoint an Advocate Commissioner and the burden is upon the plaintiff to take steps since he has come up with a specific stand and sought for the relief for the 3rd item of the suit property also. The plaintiff having failed to take any steps to appoint an Advocate Commissioner, cannot be allowed to turn around and blame the Court for not appointing an Advocate Commissioner. The second substantial question of law is answered accordingly. 18. In view of the above discussion, this Court does not find any ground to interfere with the findings of the lower Appellate Court since those findings have been rendered on appreciation of the oral and documentary evidence and this Court does not find any perversity in those findings. The substantial questions of law framed by this Court are accordingly answered against the appellants. 19. In the result, this Second Appeal is dismissed. The substantial questions of law framed by this Court are accordingly answered against the appellants. 19. In the result, this Second Appeal is dismissed. Considering the facts and circumstances of the case, there shall be no order as to costs.