HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.NO.3725 OF 2009 ORDER 1. This Civil Revision Petition is directed against the order dated 21-07-2009 in I.A.No.639 of 2009 in O.S.No.127 of 2004 on the file of the Court of Senior Civil Judge, Vizianagarm wherein the said application filed by the petitioners herein under Order XXVI, Rule.9 CPC seeking appointment of an Advocate Commissioner, was dismissed. 2. Heard the learned counsel for both parties. Perused the record. 3 The petitioners herein are the plaintiffs. They filed the suit against the respondents for declaration of title in respect of an extent of Ac.0.95 cents in Sy.No.80/1. The defendants contested the suit inter alia on the ground that the plaint schedule is not correct and the suit land is not situate in Sy.No.80/1 of Thotapalem Village, Vizianagarm. According to the plaintiffs, the suit land is a private zeroyathi land originally belonging to one Majji Appayyamma and after her death the plaintiffs claimed to have purchased from her legal heirs. The plaintiffs contend that the adjacent land in Sy.No.80/2 of an extent of Ac.2.91 cents is Mutchi Inam land and another extent of Ac.0.26 cents in Sy.No.80/3 is a poramboke land and the Government acquired an extent of Ac.1.65 cents out of A.2.91 cents in old Sy.No.80/2 for construction of groundnut godown of the Agricultural Department and transfer the same to the 1st defendant-State Agro Industries Development Corporation and the remaining land in Sy.No.80/2 was purchased by the District Cooperative Marketing Society. The plaintiffs’ claim that no part of the land in Sy.No.80/1 is acquired by the Government and under the mistake of impression, the Government started claiming a total extent of Ac.2.91 cents, which included the plaint schedule land in Sy.No.80/1 of an extent of Ac.0.95 cents and the contention of the defendants that office building and godown of 1st defendant are situate in Sy.No.80/1, is incorrect. The plaintiffs, therefore, filed I.A.No.639 of 2009 under Order XXVI, Rule 9 CPC seeking appointment of an Advocate Commissioner for local inspection of the suit land for the purpose of ascertaining whether the properties within the boundaries mentioned in the plaint schedule is situate in Sy.No.80/1 or in Sy.No.80/2 and also to ascertain whether the office building and godown of the 1st respondent are situate in Sy.No.80/1 or in Sy.No.80/2 and note the physical features. The learned Senior Civil Judge, Vizianagaram dismissed the said application on the ground that the burden of proof entirely lies on the plaintiffs and the plaintiffs have already examined their witnesses and closed their evidence and the present petition filed at a belated stage, is in the nature of an attempt to gather the evidence which is not permissible. It was further observed in the impugned order that the affidavit filed in support of the application was not attested. 4. The learned counsel for the revision petitioners/plaintiffs would submit that a fresh affidavit duly signed and attested was in fact filed by the plaintiffs even before disposal of the application but the same is not taken note of while passing the impugned order. It is not disputed by the respondents that such a fresh affidavit duly signed and attested is already filed before the trial court even before the disposal of I.A.No.639 of 2009. 5. No doubt, the application is filed by the plaintiffs belatedly after their evidence is closed, but the process of trial is not completed and recording of evidence is still in progress. As rightly observed by the learned Senior Civil Judge, the power vested in the Court to appoint a Commissioner is discretionary but the Court has to exercise the same judiciously. The dispute in the suit is whether the suit land is situate in Sy.No.80/1 and is a zeroithy private land as claimed by the plaintiffs or it forms part of land acquired by the Government in Sy.No.80/2 for the purpose of Agricultural Department. The identity of the suit land and its location with reference to its survey number is in dispute. No doubt, the plaintiffs in a suit for declaration of title have to establish their claim by adducing necessary evidence and they have to succeed on the strength of their case but when the dispute involves ascertainment of identity of the land with reference to its survey number, local inspection of the said land for the purpose of ascertaining its location with reference to Survey Number by an independent officer of the Court i.e., Advocate Commissioner appointed by the Court would certainly be helpful to the Court in arriving at a just decision. It cannot therefore be treated as a case of the plaintiffs trying to gather evidence in their support but is a case where the report of the Advocate Commissioner regarding the location of the land with reference to its Survey number would be of great assistance to the Court in resolving the real dispute. Under those circumstances, simply because an application is filed during the course of trial, it cannot be rejected on the ground of delay when the appointment of Advocate Commissioner for the purpose stated, is considered necessary for the purpose of arriving at a just decision in the matter. By such appointment of an Advocate Commissioner no prejudice is also caused to the respondents- defendants as it is necessary for them also to ascertain the location of the suit land. 6. Under those circumstances, it is held that the impugned order dismissing the application is liable to be set aside and the same is accordingly set aside. Consequently petition in I.A.No.639 of 2009 filed by the petitioners/plaintiffs is allowed and the learned Senior Civil Judge, Vizianagarm is directed to appoint an Advocate Commissioner for the purpose prayed for by imposing necessary terms and conditions as may be deemed fit and proper. 7. In the result, the Civil Revision Petition is allowed. No order as to costs. ___________________ G.V.SEETHAPATHY,J Dt.10-11-2009 TSNR