Advocate Commissioner cannot be appointed to note physical features in a partition suit involving title disputes.

The Petitioner (Plaintiff) filed a suit for partition and separate possession against his father (1st Respondent) and brother (2nd Respondent), claiming a 1/3rd share in properties he alleged were ancestral and joint family assets.

The Plaintiff filed an interlocutory application (I.A. No. 2 of 2019) under Order XXVI Rule 9 and Section 151 of the CPC, seeking the appointment of an Advocate Commissioner to inspect the suit properties and note physical features.

He alleged the 2nd Respondent was attempting to alter the property by digging pits for construction.

The Respondents contested the application, asserting the properties were the father’s self-acquired assets and that the Plaintiff had been ousted from the family for 29 years.

The Trial Court dismissed the application on January 20, 2022, holding that the primary dispute regarding the nature of the property and the Plaintiff's share required a full trial and an Advocate Commissioner was unnecessary.

Whether the appointment of an Advocate Commissioner to note physical features is necessary to decide the lis in a suit for partition where the character of the property (ancestral vs. self-acquired) is in dispute.

Whether the Trial Court’s dismissal of the application for appointment of an Advocate Commissioner warrants interference under Article 227 of the Constitution of India.

The Court primarily applied Order XXVI Rule 9 of the Code of Civil Procedure, 1908, which governs the appointment of commissions to make local investigations for the purpose of elucidating any matter in dispute.

The Court also exercised its supervisory jurisdiction under Article 227 of the Constitution of India, 1950, which allows High Courts to oversee subordinate courts but limits interference to cases of jurisdictional error or patent illegality.

The Court observed that the core dispute between the parties centers on whether the suit properties are joint family ancestral properties or the self-acquired properties of the father.

The Respondents further raised a plea of "ouster," claiming the Plaintiff had no right or title for nearly three decades.

The Court reasoned that the physical features of the land or the existence of new construction would not assist the court in determining the legal character of the property—a matter that must be proved through oral and documentary evidence during the trial.

Since the Advocate Commissioner’s report would not be "helpful to decide the dispute between the parties" regarding ownership and partition rights, the Trial Court’s refusal to appoint one was deemed legally sound.

The Court found no merit in the Civil Revision Petition and no reason to interfere with the Trial Court’s order.

Consequently, the Civil Revision Petition was dismissed, and the connected miscellaneous petition was closed, with no order as to costs.