The main legal point established is that the appointment of a Court Commissioner under Order XXVI Rule 9 of the Civil Procedure Code is at the discretion of the Trial Court and can be exercised if the evidence available on record is not sufficient to ascertain the boundaries of disputed properties.

JUDGMENT

Nataraj Rangaswamy, J. - This Writ Petition is filed by the legal representatives of the plaintiff in O.S.No.269/2009 before the Principal Civil Judge and JMFC., at Nanjangud challenging the Order dated 02.07.2019 rejecting I.A.No.24 filed by the legal representative No.2 of the plaintiff for appointment of a Court Commissioner to measure the suit schedule property and to determine the actual possession of the plaintiff.

2. The amended plaint dated 19.01.2016 (Annexure-B) discloses that the suit in O.S.No.269/2009 was filed for a declaration that the plaintiff is the owner of the suit schedule properties and for perpetual injunction restraining the defendants from interfering with the possession of the plaintiff in the suit schedule properties.

3. The plaintiff claimed that he derived the suit properties along with other properties at a division between him and his brother. The plaintiff and his mother are stated to have sold 211/2 guntas of land in Sy. No.34/4 to the defendant No.2 in terms of a sale deed dated 21.01.1964. The brother of the plaintiff had sold his share in Sy.No.34 to the defendant No.1 in terms of a sale deed 17.11.1975. The plaintiff claimed that except the above transaction, there weren't any other transactions but yet when the entries in revenue records were entered, the name of the plaintiff was removed and substituted by the names of the defendants. The plaintiff thus sought for declaration of his title to the suit properties and consequential relief of injunction.

4. The defendants disputed the claim of the plaintiff to the suit properties.

5. After the conclusion of evidence, legal representative No.2 of the plaintiff filed an application under Order XXVI Rule 9 of the Code of Civil Procedure to appoint a commissioner to measure the suit land and to determine the possession of the plaintiff. The defendants opposed the application contending that the lands in Sy.Nos.34/1 and 34/3 were earlier surveyed and measured by the Survey Department and that the survey sketch was marked at exhibit P10 in the evidence of the plaintiff. The defendants claimed that the plaintiff had acknowledged the correctness of the said survey documents and further contended that the application was designed to protract the proceedings in the suit.

6. The Trial Court by a cryptic Order rejected the application on the ground that a party who approaches the Court for relief, must prove his case. The Trial court has also held that in a suit for declaration and permanent injunction, a Court Commissioner cannot be appointed to ascertain the possession of the suit properties.

7. This Writ Petition is filed challenging the correctness of aforesaid Order. Heard the learned counsel for petitioners and respondents and the Writ Petition is taken up for final disposal.

8. Order XXVI Rule 9 of the Civil Procedure Code is an enabling provision that enables the Court to order a local investigation and secure a report for the proper adjudication of the dispute. Appointment of a Commissioner is no doubt at the discretion of the Trial Court and such discretion can be exercised by the Court, if it felt, that the evidence available on record is not sufficient and or that, a grey area remains, which cannot but be ascertained by appointment of a Court Commissioner. In the present case, the Trial Court must have tested the application on this touch stone.

9. The suit is filed for declaration and injunction in respect of an extent of 0.36 guntas in vacant agricultural lands bearing Sy.Nos.34/3 and 34/4 of Madahalli Village, Biligere Hobli, Nanjangud Taluk. The dispute essentially relates to the extent of land purchased by the defendants in Sy.No.34. It is the first principle of law that, possession of vacant agricultural land always follows title. Thus in a suit for declaration and injunction, the question is not as to who is in possession but is as to how is in possession. Having regard to the plaint averment that the plaintiff and his mother s