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5. I.A. No. 1370 of 2000:- During the pendency of the Suit, the Defendants have filed this Application for Appointment of Advocate Commissioner to inspect the Suit Property and to note down the physical features with the Plan and also to note the existence of the trees, age of the trees and the age of the house. The Application has been filed to note down that in the Suit Property, there is existence of the house, Guva and Coconut trees and such other features.

6. The Application for Appointment of Commissioner was strongly objected to by the Plaintiffs contending that the Application has been belatedly filed when the Suit is ripe for Trial. The Application was further objected that an Advocate Commissioner cannot be appointed to inspect the adjacent properties of the Suit Property, which is not the subject matter of the Suit and that the Advocate Commissioner cannot be appointed to note down the factum of possession.

11. Whether the Defendants are entitled to seek for appointment of Advocate Commissioner to report about the physical features and age of the house and the trees thereon is the main point that arises for consideration in this Civil Revision Petition.

12. The Suit Property relates to the property in S. No. 8/2 Atthur Village, Ponneri Taluk to an extent of 3.10 acres. The Commissioner was sought to be appointed not only to note down the physical features in Suit S. No. 8/2, but also to note down the physical features of the property, adjacent to the suit property. The Commissioner was also sought for to note down the existence of the house and the trees and the age of the house and the trees thereon. In this backdrop, the main point for consideration is whether there is any erroneous exercise of discretion in declining the appointment of Advocate Commissioner.

17. The Commissioner is sought for to note down the existence of the house, age of the house, Guva trees and Coconut trees and their age. Though the Appointment of Advocate Commissioner is sought for under the pretext of noting down the physical features, indirectly it only seeks to find out the factum of possession. The material issue in the suit is relating to the nature of possession and lawful right of the Defendants (if any). That material issue of determining the possession cannot be left to the Advocate Commissioner. The Appointment of Advocate Commissioner for making enquiry about the factum of possession of the property in dispute is improper since the same has to be adjudicated upon framing issues and recording the evidence.

19. Apart from seeking Appointment of Advocate Commissioner to note down the physical features of the Suit Property in S. No. 8/2, Application has been filed to note down the physical features of the adjacent property of the Defendants property on the Northern Side in S. No. 8/1 also. Strong objection has been raised by the Respondent / Plaintiff on the Appointment of Advocate Commissioner to note down the physical features of the adjacent property of the Defendants. Learned counsel for the Revision Petitioners / Defendants has submitted that the Commissioner may be appointed to make local inspection (for the purpose of elucidating the matter in dispute) and contended that when the contention of the Defendants is that they are in possession of the Northern Side of the Suit Property along with their property on the Northern Side in S. No. 8/1, that aspect is to be elucidated by Appointment of Advocate Commissioner and the Lower Court erred in declining to appoint the Commissioner. This contention of the learned counsel for the Revision Petitioners does not merit acceptance. Possession of the Defendants in S. No. 8/1 is a matter of evidence. Power is conferred on the Court to appoint Commissioner to make local inspection not to collect evidence; but only to obtain evidence, which is a peculiar nature which could be obtained only on spot inspection. Possession of the Defendants in S. No. 8/1 could be well proved by adducing appropriate evidence. In that view of the matter also, the order of the Lower Court declining to appoint Advocate Commissioner is to be confirmed.