Advocate-Commissioner cannot be appointed for making an enquiry about factum of possession:-
In K.M.A.Wahab & others vs. Eswaran & another, reported in 2008 (3) CTC 597, His Lordship, A.Kulasekaran, J, has held that 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 on appreciation of evidence. Similarly, in another case, M/s. Benz Automobiles Private Limited vs. Mohanasundaram, reported in 2003 (3) MLJ 391, His Lordship AR.Ramalingam,J, has held that Advocate-Commissioner cannot be appointed to find out the factum, as to who is in possession of the property. Even if an Advocate-Commissioner is appointed and his report is filed, it can be questioned by the other side by filing objections, as the dispute in the suit could be resolved only on the basis of oral and documentary evidence let in by the parties.
In Rajendran vs. Lilly Ammal alias Nelli Ammal, reported in 1998 (II) CTC 163, His Lordship S.Jagadeesan, J, has held that Advocate-Commissioner cannot be appointed to find out the fact as to who is in possession of suit property in a case. In another case, in Kuttiyappan, D. vs. Meenakshiammal Polytechnic Unit of M/s. Meenakshiammal Trust, reported in 2005 (4) CTC 676, Her Lordship R.Banumathi, J held that the defendants therein were not entitled to seek for appointment of Advocate-Commissioner to note their possession, as it is well settled that Commissioner cannot be appointed for noting down the factum of possession or the enjoyment of property. Similar issue was considered in another case, in Minor Amid Stanly & another vs. Lakshmiammal & others,s reported in CDJ 2009 MHC 324, His Lordship S.Palanivelu, J, has held that the factum of possession cannot be ascertained by Commissioner, as the same could be proved by letting in oral and documentary evidence by the parties before the Court.