ORDER :

1. The petitioner has challenged the order dated 12.10.2018 passed on I.A.Nos.3 and 7 in O.S.No.226/2014 on the file of the Principal Civil Judge and JMFC, Mangalor e, Da kshina Kannada.

2. The petitioner has filed a suit for permanent prohibitory injunction against the respondents alleging encroachment upon his property and constructing the compound wall. In the said proceedings, the respondents herein have filed I.A.Nos.3 and 7 seeking the appointment of the Court Commissioner to fix the boundaries of the property in dispute. The petitioner objected to the same.

3. On analyzing the material facts, the Trial Court allowed the said applications appointing an advocate of the Bar Association, Mangaluru as the Court Commissioner. Hence these writ petitions.

4. The learned counsel for the petitioner, Sri Nitin A.M., vehemently argued that the Trial Court failed to consider the vital aspect of the matter that the said applications were filed by the respondents after closing of the evidence of both the parties. The advocate of the Bar Association of Mangaluru has no expertise to demarcate the boundaries of the property in dispute. The survey authorities have conducted the measurement under the provisions of the Karnataka Land Reforms Act, 1961, which has become final. In such circumstances, appointing a Court Commissioner would be a futile exercise, which would be of no assistance for the effective adjudication of the dispute. The Court below has failed to observe that no pleadings were made by either of the parties regarding the encroachment alleged.

5. The learned counsel for the petitioner placed reliance on the following judgments in support of his contentions:

(i) LAWS (MAD) 2011 8 212 – Raja v. Narashimamurthy.

(ii) LAWS (MAD) 2003 7 238 – Benz Automobiles Private Limited v. C. Mohanasundaram.

(iii) LAWS (MAD) 2007 11 536 – K.M.A. Wahab v. Eswaran.

6. I have carefully considered the arguments advanced by the learned counsel for the petitioner and perused the material placed on record.

7. The petition averments disclose that the petitioner has filed the suit seeking for permanent injunction against the respondents alleging encroachment. The applications filed by the respondents also indicate that the plaintiff filed the suit against them alleging that the respondents are attempting to trespass into ‘A’ schedule property by constructing a compound wall; there is no boundary wall in between plaint ‘A’ schedule property as well as the written statement schedule property, the same is required to be built up to avoid future dispute. Plaint also discloses that the cause of action for the suit arose on 25.2.2014 when the defendants tried to dismantle the fence existing towards the northern side of the ‘A’ schedule property and trespass into ‘A’ schedule property and construct a compound wall encroaching upon ‘A’ schedule property situated within the jurisdiction of the Court. The said pleadings indicate the nature of the dispute between the parties which is the boundary dispute and the allegation of the petitioner that the respondents are trespassing into ‘A’ schedule property to construct a compound wall encroaching into ‘A’ schedule property. If that be so, the arguments of the learned counsel for the petitioner that the Trial Court traversed beyond the pleadings, cannot be accepted.

8. The survey sketch prepared by the revenue authorities or any other documents relating to the schedule property on which the petitioner is relying upon to establish his title, right or interest over the suit schedule property, would not be relevant to decide the factum of encroachment alleged by the petitioner. In catena of judgments, the Hon’ble Supreme Court and this Court has held that appointing a Court Commissioner to decide the dispute of encroachment raised by the parties, cannot be held unjustifiable.

9. The judgments relied upon by the learned counsel for the petitioner was held in a different context where dispute of encroachment or the boundar