Local investigation is premature in a partition suit before co-sharers’ respective shares are determined.

The petitioner, plaintiff in Title Suit No. 6 of 2021, sought partition of co-sharer property and a declaration of exclusive possession over the “Ga” schedule properties, which form part of the “Ka” schedule property.

He alleged that a purchaser from a co-sharer had constructed a dwelling house by encroaching on his property and applied under Order XXVI Rule 9 CPC for a local investigation.

The Trial Court rejected the application as premature and as an attempt to collect evidence.

The plaintiff challenged that order in revision.

Whether the Trial Court erred in rejecting the plaintiff’s application for local investigation under Order XXVI Rule 9 CPC as premature.

Whether a local investigation was warranted before the co-sharers’ respective shares had been determined in the partition suit.

Order XXVI Rule 9 CPC concerns the appointment of a commissioner for local investigation.

The Court applied the principles that a purchaser from a co-sharer cannot acquire rights superior to those of the vendor, and that in a partition suit a partition commissioner may, as far as practicable, allot portions in accordance with the co-sharers’ existing possession.

Where the suit property has not yet been partitioned and the parties’ shares remain undetermined, a local investigation may serve no useful purpose at that stage.

The plaintiff’s claim concerned alleged encroachment by a purchaser from a co-sharer, but the suit remained one for partition and the property had not yet been divided among the co-sharers.

Because the plaintiff’s share—and that of his predecessor in interest—had yet to be determined, the Court considered a local investigation premature and unlikely to assist in resolving the dispute.

It therefore found no basis to interfere with the Trial Court’s order.

It directed the Trial Court to endeavour to dispose of the partition suit as early as possible.