Petitioners are before this Court under Article 227 of the Constitution of India challenging the order dated 07-03-2018 on I.A.No.8 in O.S.No.163/2014 passed by the Principal Civil Judge, Mangaluru, D.K.

2. Petitioners are the defendants and respondent is the plaintiff in O.S.No.163/2014 which is filed for a judgment and decree for possession directing the defendants to deliver vacant possession of the plaint ‘C’ schedule property to the plaintiff and for a decree of permanent injunction restraining the defendants and their men from tresspassing the entire plaint ‘C’ schedule property or any portion thereof and for mesne profits.

3. It is the case of the plaintiff that the defendants had encroached a portion of plaint ‘A’ schedule property and the same is shown in the plaint as ‘C’ schedule property. ‘B’ schedule property is the property of defendants whereas ‘A’ schedule property is the property of plaintiff. The defendants appeared before the Court and filed their written statement denying the encroachment and contended that they purchased ‘B’ schedule property as it is and there existed a compound wall bifurcating the ‘A’ and ‘B’ schedule properties prior to the filing of the suit and even before the defendants purchased the ‘B’ schedule property. When the matter was at the stage of defendants’ evidence, the plaintiff filed an application I.A.No.8 under Order XXVI Rule 9 of CPC for appointment of an advocate as Court Commissioner with the Surveyor’s assistance for the purpose of measuring the portion of ‘A’ schedule property which has been encroached by the defendants. The said application was opposed by the defendants stating that the Commissioner cannot be appointed to collect the evidence and the plaintiff cannot be permitted to fill the lacuna in the evidence let in by her. The trial Court on consideration of the application, by its order dated 07-03-2018 allowed the application and appointed the Commissioner. The said order is under challenge before this Court in this writ petition.

4. Heard the learned Senior counsel for the petitioners and learned counsel for the caveator/respondent. Perused the writ papers.

5. Learned Senior Counsel appearing for the petitioners submits that the trial Court committed a grave error in allowing the application filed under Order XXVI Rule 9 of CPC which amounts to collection of evidence. The matter is set down for defendants’ evidence and at this stage, the application filed by the plaintiff is not maintainable. According to the learned Senior Counsel, the defendants had purchased the said property as it is and there was already a compound wall bifurcating the ‘A’ and ‘B’ schedule properties. The learned Senior Counsel further submits that there is no encroachment and the plaintiff nowhere in the plaint has demonstrated as to how the encroachment is made by the defendants and when the encroachment has taken place. It is his further submission that in the year 2011 itself, there was a survey conducted with regard to encroachment and second survey was also conducted in the year 2012. In the survey conducted in the year 2011, the Deputy Commissioner has clearly stated that there is no encroachment on the part of the defendants. It is further submitted that when the plaintiff has not stated about the encroachment as to when encroachment has taken place, the Court could not have appointed the Commissioner to get the details. It is further submitted that the portion which the plaintiff claims is the only access to the defendants and only with malafide intention, the present application is filed.

6. Per contra, learned counsel appearing for the Caveator/respondent submits that the entire case of the plaintiff is that the defendants have encroached ‘C’ schedule property which is to the Southern side of ‘A’ schedule property. It is further submitted that there was a survey conducted in the year 2012 by the Revenue Authorities, in which report it has come on record that the defendants have enc