Introduction
The present case was filed by the plaintiff seeking partition of his share in the suit property located in New Delhi. The present suit was brought by the plaintiffs to bifurcate their shares from the suit property, where the property was to devolve by intestate succession. The defendant made an application under Order XXVI Rule 9, pleading before the court for appointment of a local commissioner in order to visit and inspect the suit property for preserving it. The court, by accepting the application of the defendant, appointed an advocate as a local commissioner.
Factual Background
The present suit arises among the plaintiffs and the defendants out of a property located in Khirki extension, Cariappa Marg, New Delhi. The property was allegedly in possessory rights of the plaintiff no.1 who is mother of plaintiff no.2 and 3. The defendant no.1 who is the husband of the deceased daughter of the plaintiff 1 is claiming the 25% share in the suit property. But the plaintiff no. 1 is stating that the share of the defendants should not be more than 1/8th of the suit property.
Application Made Under Order XXVI Rule 9 Before the Court
The Defendants are the parties in possession of and claiming rights and interest in respect of the property. They are in settled, continuous, open and peaceful possession of the Suit Property and have been residing therein along with their family members. The Defendant no.1 was threatened by the plaintiffs that they will dispose of and alienate or will create a 3rd party interest in the suit property. The defendant also submits that he saw the advertisement of the suit property on a site of which he was not informed. Also, one Mr. Chaudhary came to the suit property claiming to be the owner of the said property by stating the suit property has been sold to him by the plaintiffs and hindered the use and enjoyment of the defendants in the suit property.
The Defendants filed an application seeking appointment of a Local Commissioner on account of repeated attempts by the Plaintiffs to interfere with their peaceful possession of the Suit Property, including breaking locks, removing and damaging articles and belongings, and attempting to alter the physical condition of the premises. Despite the statement/undertaking recorded by this Hon’ble Court vide order dated 01.04.2025 that the Defendants would not be dispossessed, the Plaintiffs allegedly continued to interfere with their possession and control over portions of the Suit Property.
The Defendants further apprehended the creation of third-party rights in the Suit Property, particularly after a property broker operating through the Instagram account @kalash_homes_ advertised the property for sale. This apprehension was further aggravated when one Mr. Chaudhary visited the Suit Property, claimed to be its new owner and attempted to assert control over the premises.
In view of these circumstances, the Defendants sought appointment of a Local Commissioner under Order XXVI Rule 9 read with Section 151 CPC to inspect and document the existing physical condition and possession of the Suit Property, including its construction, access points, locks, furniture and other belongings, and to undertake photography/videography and prepare an inventory, so as to preserve the factual position during the pendency of the proceedings. The commission was sought only for preservation and documentation of the existing condition and not for adjudication of the title or rights of the parties.
Delhi High Court Order
During the course of hearing, it was specifically submitted on behalf of the Defendants that the circumstances warranted an immediate inspection of the Suit Property so that its existing physical condition and the actual possession of the respective parties could be objectively ascertained and placed on record. The submissions assumed particular significance in view of the apprehension that the physical condition of the Suit Property could be altered and that third-party interests could be created during the pendency of the proceedings. Importantly, the learned Counsel appearing for the Plaintiffs candidly admitted before the Hon’ble Court that third-party rights had been created over the Suit Property.
Taking note of the submissions made by the parties and the aforesaid admission, the Hon’ble Delhi High Court was pleased to observe that, in order to ascertain the ground situation, it was expedient to appoint a Local Commissioner. Accordingly, the Hon’ble Court appointed Mr. Yatharth Chugh, Advocate, as the Local Commissioner to inspect the Suit Property and ascertain the factual position existing at the site.
The Hon’ble Court further directed the Local Commissioner to conduct an inspection of the Suit Property, take photographs and submit a detailed report specifically recording the actual possession of the parties over the Suit Property. The Local Commissioner was directed to visit the Suit Property on 26.09.2026 at a time convenient to the parties, after providing advance notice to the learned Counsels appearing on behalf of both sides. The Court also directed that the report along with the photographs be placed before the Court on the next date of hearing. The Hon’ble Court further directed that the fee of the Local Commissioner be fixed at ₹1,50,000/-, to be shared equally by the Plaintiffs and the Defendants. The matter was thereafter listed for 29.09.2026, with the earlier date fixed in the Suit being cancelled.
The order therefore secured an immediate and objective mechanism for recording the existing ground situation of the Suit Property, including the actual possession of the respective parties, through an independent Local Commissioner. The inspection, photographs and detailed report directed by the Hon’ble Court will place the existing factual position on the judicial record and assist the Court in effectively considering the disputes concerning the Suit Property during the pendency of the proceedings.
Conclusion
In view of the circumstances brought before the Hon’ble Court, the application filed by the Defendants under Order XXVI Rule 9 read with Section 151 CPC was allowed, resulting in the appointment of an independent Local Commissioner to inspect the Suit Property and ascertain the existing ground situation. The Hon’ble Court specifically directed the Local Commissioner to inspect the property, take photographs and submit a detailed report recording the actual possession of the respective parties.
The order provides an objective and contemporaneous record of the physical condition and possession of the Suit Property at a crucial stage of the proceedings, particularly in view of the apprehension regarding alteration of the property and creation of third-party rights. The directions of the Hon’ble Court ensure that the existing factual position is documented and preserved on the judicial record, thereby assisting the Court in effectively adjudicating the pending dispute. The order thus secured important interim relief for the Defendants by ensuring independent inspection and documentation of the Suit Property, without prejudicing the substantive rights or claims of either party, which remain to be adjudicated in the pending proceedings.
Author: Mr. Himanshu Sachdeva (Sr Associate) and Mr. Sachin Sharma (Associate)
