A. V. SRINIVASA REDDY, J.

( 1 ) THE petitioner in this petition under Section 115 of the CPC seeks to challenge the order dated 7-11-2001 passed by the Principal Civil Judge, kundapura on I. A. No. IX in O. S. No. 808 of 1987.

( 2 ) THE petitioner-plaintiff filed application I. A. No. IX under Order 26, Rule 9 of the CPC read with Section 151 of the CPC for appointment of Commissioner to visit the suit schedule property, note the details of work done and to submit a report. The suit as originally filed by the plaintiff was one for declaration and permanent injunction. Later on the suit came to be amended by alleging encroachment of plaintiffs property and the claim for possession of the encroached property was also added to the original prayer of declaration and permanent injunction. By LA. No. IX the petitioner-plaintiff sought for the appointment of the Commissioner to ascertain the exact extent of encroachment by the defendant. The Court below declined to grant the prayer in I. A. No. DC Hence, the present revision petition.

( 3 ) I have heard the learned Counsel for the petitioner. Respondent, though served, is unrepresented.

( 4 ) LEARNED Counsel for the petitioner cited a number of decisions in support of her contention that in a suit for injunction wherein encroachment of property is alleged, it is just and necessary that a Commissioner should be appointed to conduct survey and report on the correct extent and boundaries of the property. In Payani Achuthan v Chamballikundu harijan Fisheries Development Co-operative Society, a learned Single judge of the Kerala High Court held that the Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. In the case on hand the petitioner had put forth a definite case before the Court below that the respondent-defendant had encroached upon 1 cent of land belonging to the petitionerplaintiff which was denied by the respondent-defendant. When the petitioner-plaintiff himself had stated in no uncertain terms the extent of land that had actually been encroached upon by the respondent-tenant the need to have a Commissioner appointed for measurement, demarcation and filing a report in that regard does not arise.

( 5 ) SIMILARLY, in Anil Kamalakar Shirodkar v Dudhappa Santu Patil , the prayer for appointment of a Commissioner was allowed because there was some ambiguity about the extent of the area under encroachment. In Ponnusamy v Salem Vaiyapamalat Hangamar Sangam, a controversy arose as to whether the foundations and constructions put up by the defendant were within his own land or whether they had encroached into the lands of the plaintiff, a local investigation would be the best way to find out the position and the defendant coveting to place the evidence before the Court through local investigation by the Commissioner under order 26, Rule 9 of the CPC cannot be shut out of that right. In the case on hand the Court below is more than certain that the controversy could be very well determined by evidence that is already available on record. Similarly in Chintapatla Arvind Babu v Smt. K. Balakistamma alias bhargavi, the Court justified the appointment of the Commissioner as in that case the Court felt that the matter in dispute could be best resolved by appointment of a Commissioner. It is not so in this case. The court below is confident, in the facts of the present case, of effectively resolving the matter without reference to localisation of the site in dispute.

( 6 ) IN Mahendranath v Purnanda, the Court held,"where the Court considers a local investigation to be requisite and proper, ordinarily it should not decline to exercise jurisdiction. When the controversy is as to identification, location or measurement of the land or premises or object, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared". In the case on hand there i

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