THE HON’BLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.1185 of 2010 ORDER: The petitioner herein is the plaintiff, who filed the suit in O.S.No.16 of 2005 on the file of the Senior Civil Judge, Puttur, for specific performance of the agreement of sale, dated 04-10-2001, by directing the defendant to execute a registered sale deed in his favour as per the said agreement of sale. It is the case of the petitioner-plaintiff that the defendant has agreed to sell the land to an extent of Ac.4-56 cents along with 320 Mango trees with specific boundaries. But, later the defendant proposed to execute registered sale deed to the said extent with different boundaries without Mango trees. It is stated that the plaintiff agreed to purchase the said land of Ac.4-56 cents along with 320 Mango trees for a consideration of Rs.3,39,000/-, but the defendant proposed to execute the sale deed for the land for which there are lesser number of mango tress. Therefore, the plaintiff asked the defendant to deduct the amount for the land in which there are no Mango trees and execute regular registered sale deed in his favour, but the defendant did not agree for the same. Hence, the plaintiff filed the said suit for specific performance of the agreement of sale. It is not in dispute that PWs.1 to 4 were examined on behalf of the plaintiff and DWs.1 to 3 were examined on behalf of the defendant and when the matter was posted for further defendant’s side evidence, the plaintiff filed I.A.No.618 of 2009 in O.S.No.16 of 2005 on the file of the Senior Civil Judge, Puttur, seeking appointment of an Advocate Commissioner to note down the number of existing mango trees in the suit schedule land and to file his report. It is the case of the plaintiff that according to the said agreement of sale, the defendant represented that there are 320 Mango trees, which were offered to sell along with the said land and the defendant in his cross- examination also stated that 320 Mango trees are existing in the suit schedule land, but according to the plaintiff 320 Mango trees are not existing in the suit schedule land. It is stated that there are no Mango trees in part of the suit schedule land and it is not possible for the plaintiff to adduce evidence with regard to the actual number of the trees, as the said land is in possession and enjoyment of the defendant. Therefore, the said application is filed for appointment of an Advocate Commissioner to note down the number of existing Mango trees in the suit schedule land. According to the plaint averments, the controversy involved in the suit and the dispute between the parties is only with regard to the actual number of existing Mango trees in the suit schedule land. According to the defendant, 320 Mango Trees are existing in the suit schedule land whereas according to the plaintiff, 320 Mango Trees are not existing in the suit schedule land, as there is a change of the boundaries. Having regard to the facts and circumstances of the case, I am of the opinion that the court below ought not to have dismissed the said application stating that the Advocate Commissioner cannot be appointed at a belated stage. Without noting down the actual number of Mango trees, the real controversy cannot be decided. Accordingly, the order under revision is set aside and the I.A. is allowed directing the learned Senior Civil Judge, Puttur, to appoint an Advocate Commissioner and direct him to make local inspection of the suit schedule land covered by the agreement of sale, dated 04-10-2001, and to note down the number of existing Mango Trees. Both the parties may point out the Advocate Commissioner with regard to the existence of the actual number of Mango trees in the suit schedule land. The Advocate Commissioner shall file his report within two weeks from the date of his appointment. There shall be no order as to costs. ___________ 25-06-2010 Prv