The main legal point established in the judgment is that the appointment of an Advocate-Commissioner should be justified by the necessity to elucidate any matter in dispute, and it should not be used to collect evidence on the factum of possession.

1. The plaintiffs are revision petitioners herein, who filed the Suit for specific performance in O.S. No.309 of 2005 on the file of the learned Additional District and Sessions, Fast Track Court No.1, Coimbatore. The first respondent/defendant has filed

I.A. No.697 of 2006 for appointment of an Advocate Commissioner, which was allowed. Hence the present Revision.

2. Learned counsel appearing for the petitioners submits that the Suit is one for specific performance. The respondent claims that he is in possession of the suit property. To that effect, he filed an affidavit in support of I.A. No.697 of 2006, wherein it is alleged, "I further submit that I was in actual and physical possession of the suit property cultivating cholam in the suit property. There was no demarcating stones, ditches and roads as stated by the respondents/plaintiffs in the suit property. The respondents/plaintiffs have not formed any layout in the suit property. Under such circumstances, it is deemed necessary to note down the physical features of the suit property and take photographs with the help of photographer and measure it with the help of the surveyor".

3. Pointing out the said statement, learned counsel for the petitioner argued that there is no dispute regarding identity of the suit property and for proving possession the respondent cannot seek for appointment of the Advocate Commissioner. The Court below, erroneously appointed the Advocate Commissioner, which is contrary to the provisions under Order 26, Rule 9, C.P.C. In support of his contention, the learned counsel relied on the judgments reported in Jabeen Taj v. M. Parveen Bank, 2005 (3) MLJ 24 and Clrandrasekaran and 6 others v. V. Doss Naidu, 2006 (2) LW 159. So far as the first judgment cited above is concerned, it is held as follows:

"14. Since the defendants 1 and 2 attempted to trespass and also attempted to alienate, the property allotted to the share of the plaintiff as per decree in O.S. No.44 of 1995, the same necessitated the plaintiff to file the Suit O.S. No.196 of 2004 for declaration and permanent injunction. Though the Trial Court as per order dated 3. 2004 in I.A. Nos.252 and 253 of 2003, made the interim injunction already granted till the disposal of the Suit O.S. No.196 of 2004, however, the Trial Court has committed an error in passing order in I.A. No.291 of 2004, filed by the second defendant ordering to maintain status quo by both parties till the disposal of the Suit. Such order being irregular, it is to be set aside.

15. In as much as there is no dispute with regard to the identify of the property, the Trial Court has rightly refused to appoint Advocate-Commissioner in I.A. No.370 of 2004, filed by the second defendant and therefore, the said order is liable to be confirmed.”

So far as the second judgment cited above is concerned, it is held as follows:

"17. The Commissioner is sought for to note down the existence of the house, age of the house, Guava 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.

18. Advocate-Commissioner could be appointed only when the Court is satisfied that on the materials available on record, the party is not able to produce the desired evidence, the Court may assist the party to appoint the Advocate-Commissioner to obtain the evidence. If really, the defendants are in possession of the suit property, the possession could be proved by p