(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside fair and decreetal order dated 04.06.2025 passed in I.A.No.3 of 2025 in O.S.No.7 of 2019 on the file of learned Additional District Munsif Court, Valliyoor.)

1. This Civil Revision Petition challenges the order of the learned Additional District Munsif, Valliyoor, in I.A.No.3 of 2025 in O.S.No.7 of 2019, dated 04.06.2025, in appointing an Advocate Commissioner to visit the suit schedule mentioned property and to submit a report.

2. The civil revision petitioners are the plaintiffs in the suit. O.S.No.17 of 2007 was presented before the learned District Munsif cum Judicial Magistrate at Eraniel. It sought the relief of declaration that the 'B' schedule mentioned property belongs to the plaintiffs and defendants 2 to 4 and for recovery of possession from the first defendant. The suit also claims the relief of demarcation and fixing the eastern, northern and western boundaries of 'A' schedule mentioned property with reference to re-survey plan and to put up a rubble compound wall enclosing the suit property. A relief of declaration, that the settlement deed dated 28.02.2007 executed in favour of the fifth defendant is null and void, is also sought for. Pleadings have been completed in the suit, even when it was pending before the District Munsif Court at Eraniel.

3. An application was made by the first defendant, seeking appointment of an Advocate Commissioner to visit the suit schedule mentioned property and to submit a report. This was in I.A.No.199 of 2014. An Advocate Commissioner was also appointed and a report was submitted on 05.10.2016. Detailed objections were presented by the plaintiffs and the first defendant to the Advocate Commissioner's report. Thereafter, the transfer petition was moved before this Court and the suit was transferred from the file of the District Munsif Court at Eraniel to the file of the Additional District Munsif Court at Valliyoor. The suit was re-numbered as O.S.No.7 of 2019.

4. Post the transfer, the defendants 1 and 5 filed an application in I.A.No.3 of 2025, seeking appointment of an Advocate from the Valliyoor Bar, as a Commissioner, to visit the suit property and to submit a report. This application was opposed by the plaintiffs stating that once an Advocate Commissioner has been appointed and he has submitted a report, without setting aside the same, a fresh Commissioner cannot be appointed. The learned Additional District Munsif, Valliyoor, on the basis of the affidavit and counter, allowed the application. Hence, this revision.

5. I heard Mr.A.Mohamed Haneef for Mr.M.P.Senthil for the petitioners and Mr.M.R.Srinivasan for the respondents 1 and 2. The learned counsel reiterated the contentions they placed before the Trial Court.

6. Certain facts are necessary for disposal of this revision. Prior to filing the application in I.A.No.3 of 2025, the parties, invoking Order XXVI Rule 10(2) of the Code, cross-examined the Advocate Commissioner who had been appointed earlier. During the course of cross-examination, it came to light that the Advocate Commissioner had received the sale deed from the first defendant, but had submitted a report as if no such deed was ever handed over to him. It was also clear that the Advocate Commissioner at the time of inspection had taken the assistance of a retired Taluk Surveyor. This gentleman was a close associate of the plaintiffs. During the pendency of the suit, the same retired Taluk Surveyor had also prepared a partition agreement inter se the plaintiffs and had also given a survey plan.

7. The learned Trial Judge, after hearing the arguments of both sides, came to the following conclusion:

                     (i) The report filed by the Advocate Commissioner dated 05.10.2016 does not refer to any relevant documents or the correlation register of the existing SLR with the old survey plan. These documents had been produced by the first defendant before the Commissioner.

                     (ii) The memo of instructions issued to the Commissioner had not been taken note of by him.

                     (iii) The Advocate Commissioner had deposed contrary to the report submitted by him while subjected to cross-examination. While the report refers to an encroachment made in the 'B' schedule, it did not consider the deed submitted by the first defendant.

                     (iv) The field sketch had not been signed or prepared by the Taluk Surveyor, but it had been done so with the assistance of the retired Taluk Surveyor referred to above.

On this basis, the Trial Court came to a conclusion that the Advocate Commissioner's report would not help the Court in coming to any conclusion nor would aid the Court with respect to the issues presented to it. Consequently, the learned Trial Judge allowed the application.

8. It is a settled position of law that as long as the Advocate Commissioner's report is not set aside, the Court cannot appoint another Commissioner [See, Vemba Gounder Vs. Pooncholai Gounder, AIR 1996 Mad 347]. However, in the present case, the Trial Court has found several defects in the original report submitted by the Commissioner in the year 2016. It had, by the impugned order, directed the new Commissioner to take the assistance of the Taluk Surveyor and redo the exercise.

9. Appointment of an Advocate Commissioner is one based on judicial discretion. The purpose of appointing a Commissioner is to enable the Court to answer the issues presented in the suit. When the Trial Court has found that the report of the Commissioner is riddled with the aforesaid defects and also concluded that the report will not be of any assistance to the Court to arrive at a judgment in the suit, the only option open to the Court was to issue a warrant and appoint a fresh Commissioner.

10. Mr.A.Mohamed Haneef is correct that the learned Judge has not specifically held that the report of the Commissioner is set aside. However, a perusal of the impugned order shows that the learned Judge has concluded that the report is defective and would not help or be of assistance to the Court in any manner. Though specific words have not been used, the learned Trial Judge has concluded that the report cannot be relied upon. It is only after arriving at that conclusion, the learned Trial Judge has proceeded to appoint a fresh Commissioner. The impugned order sets forth the reasons for which a fresh Commissioner is being appointed. The reasons are not capricious, but indicate that the Commissioner originally appointed had not done his job properly. Therefore, I am of the view that the impugned order does not suffer from any infirmity and does not require any interference.

11. The Trial Court shall ensure that the fresh Commissioner appointed executes the warrant strictly in accordance to the same. The suit is of the year 2007. The Trial Court shall ensure that the report of the Commissioner is not delayed and is submitted at the earliest so as to enable the parties to proceed further in the matter.

12. In the light of the above discussions, this Civil Revision Petition is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.