The appointment of an Advocate Commissioner is unnecessary if it does not aid in resolving the dispute over property rights.

O R D E R

This Civil Revision Petition is filed under Article 227 of the Constitution of India, 1950, praying to set aside the Dismissal Order dated January 20, 2022 passed in I.A. No.2 of 2019 in O.S. No.816 of 2019 on the file of 'the V Additional District Judge, Coimbatore' [hereinafter referred to as the 'Trial Court'], by the Petitioner/Plaintiff therein.

2. The Petitioner herein is the Plaintiff and the Respondents herein are the Defendants in the Suit in O.S.No.816 of 2019. For the sake of convenience, the parties will be referred to as per their array in the Original Suit.

3. The 1^st Defendant is the father of the Plaintiff. The 2^nd Defendant is the Plaintiff's brother.

4. The case of the Plaintiff is that Suit Properties are ancestral and joint family properties in which the Plaintiff is entitled to 1/3 share. Accordingly, he filed a Suit seeking partition and division of properties. Then the Plaintiff filed an application under Order XXVI Rule 9 and Section 151 of the Code of Civil Procedure, 1908, seeking to pass an order appointing an Advocate Commissioner to make local inspection of the Suit Properties, to note down the physical features and file a report.

5. In the affidavit filed in support of the said petition, the Plaintiff averred that during the 1^st week of July 2019, he came to know that the 2^nd Defendant attempted to put up a construction in a portion of the Suit Property in S.No.307 measuring an extent of 59 Cents [Suit Item Nos.1 (ii)]. For that purpose, the 2^nd Defendant dug pits to erect pillars. Further, the Plaintiff came to know that the 1^st Defendant effected a Settlement Deed dated March 06, 2019 in favour of the 2^nd Defendant. Further, the 1^st Defendant has availed a loan of Rs.1.85 Crores by mortgaging 1 Acre in Suit Survey No.24/4 with the 3^rd Defendant’s bank. Hence, the appointment of an Advocate Commissioner and their report is necessary to decide the Suit. Accordingly, the Plaintiff prayed to allow the application.

6. The case of the Defendants is that the Suit Properties are absolute properties of the 1^st Defendant. Further, the Plaintiff was separated from the joint family and has been living in his father-in-law’s house for the past 29 years. Therefore, the Plaintiff stands ousted from the Suit Properties for the past 29 years. The Plaintiff has no right or title over the Suit Properties. Hence, the appointment of an Advocate Commissioner is in no way helpful to decide the lis between the parties. Accordingly, the Defendants 1 and 2 prayed to dismiss the application.

7. The Trial Court after hearing both sides' concluded that the construction has already been completed in the suit properties. Whether the plaintiff is entitled to 1/3 share is a question that can be decided only after trial in the Suit. Further considering the nature of the relief sought in the Suit, appointment of an Advocate Commissioner is not necessary and accordingly, the Trial Court dismissed the Interlocutory Application. 8. Feeling aggrieved by the Dismissal Order, the Petitioner therein has preferred this Civil Revision Petition.

9. Ms.Senthamizharasi appearing for Mr.A.Thiyagarajan, Counsel on record for the Petitioner would submit that the Trial Court failed to consider the fact that the Defendants 1 and 2 have been attempting to alter the nature and character of the Suit Item No.1 (ii) and other properties, by putting up construction there. Further, no prejudice would be caused if the application is allowed. The Trial Court without considering the Plaintiff’s case, dismissed the application. Accordingly, she would pray to allow this Civil Revision Petition, set aside the Fair and Decretal Order of the Trial Court and allow the Interlocutory Application