The main legal point established in the judgment is the discretionary power of appointing a commissioner under Order XXVI Rule 9 of CPC and the necessity to appoint a commissioner to ascertain the truth in property disputes.

S. Sujatha, J.

1. This is the second round of litigation as regards appointment of Commissioner, the dismissal order passed on the application filed by the 2nd defendant in O.S. No. 540/2008 on the file of Addl. Civil Judge & JMFC, Channarayapatna is challenged herein.

2. The facts in brief are that:

"- one Nanjegowda sold property bearing No. 26/2A9 (old No. 26/2) measuring 3 guntas in favour of brother of plaintiff Sri C S Suresh Kumar on 3.10.1994. Subsequently, in the family partition that had taken place between the family members, the suit schedule property is said to have fallen to the share of the plaintiff. The 2nd respondent executed a sale deed in favour of the husband of the petitioner K S Thimmegowda bearing property No. 26/A1 on 06.10.2007. Respondent No. 1 has filed O.S. 540/2008 for declaration and permanent injunction against the defendants in respect of property bearing No. 26/2A9 measuring 3 guntas. The petitioner/2nd defendant after appearance filed written statement denying the plaint averments and categorically stated that the 2nd respondent has executed a sale deed in favour of the husband of the petitioner K.S. Thimmegowda bearing property in Sy. No. 26/A1 measuring 3354 sq. feet on 6.10.2007. In the said suit proceedings, defendant No. 2 filed an application under Order XXVI Rule 9 of CPC praying for appointment of Taluka Surveyor as Commissioner to survey the land and submit a report on 28.06.2011. The plaintiff/1st respondent filed objections to the said application. However, learned trial Judge rejected I.A. 2 holding that allowing the said application is as good as collection of evidence, it is for the plaintiff to discharge his burden proving his title over the suit schedule property and the defendant making an application for appointment of commissioner at the initial stage would not be permitted. Challenging the said order passed on I.A. 2, petitioner filed Writ Petition No. 38347/2012 before this Court and the said writ petition came to be dismissed by order dated 16.10.2012, however, providing liberty to the petitioner to make an application at the appropriate stage, since the suit being for declaration and permanent injunction and as trial having not yet commenced, it was premature to allow the application."

3. After completion of the evidence of the parties, petitioner filed I.A. 7 under Order XXVI Rule 9 of CPC on 25.2.2013 for appointment of Commissioner. Plaintiff resisted the said application by filing objections and prayed for dismissal of the application. The trial Judge after considering the arguments advanced by both the parties, dismissed the application placing reliance on the Judgment of this Court reported in Puttappa v. Ramappa, ILR 1996 Kar. 1443. Being aggrieved by the said order passed on I.A. 7 filed by the petitioner under Order XXVI Rule 9 of CPC praying for appointment of Commissioner, the petitioner is before this Court.

4. Learned counsel appearing for the petitioner contended that the appointment of Taluka Surveyor as Commissioner would have assisted the Court to arrive at proper conclusion in the suit. Respondent No. 2 being the wife of K S Thimmegowda in whose favour 1st defendant had executed the sale deed on 6.10.2007 in Sy. No. 26/2A1 measuring 3354 Sq.Ft. is enjoying the said property. The plaintiff making false allegations against the defendants, has filed a frivolous suit. The Court below failed to appreciate the necessity of appointment of the Commissioner to local inspection preferably, the location of the suit schedule property and for demarcation of the boundaries of the land in question, especially when the defendants have denied the allegations made by the plaintiff and it is contended that defendants in no way have interfered with the peaceful possession of the plaintiffs enjoying the suit schedule property, if there is any encroachment in the suit properties, it is for the reason that some portion of the suit schedule property is being encroached by o