The petitioner-defendant in O.S.No.105/2019 on the

file of Senior Civil Judge and JMFC, Somwarpete, is before

this Court aggrieved by order dated 24.07.2023, allowing

application

filed

by

the

plaintiff

under

Order

26

Rule 9 read with Section 75 of the Code of Civil Procedure,

1908 (for short ‘CPC’) to appoint Court Commissioner to

inspect the spot and report about the encroachment of the

suit ‘G’ schedule property.

Heard Sri. Harsha.G, learned counsel for the

petitioner and perused the writ petition papers.

Learned counsel for the petitioner would submit

that the suit of the respondents-plaintiffs is for declaration

of title and to declare that sale deeds as illegal and for

cancellation of the same and also to declare that the

defendant has encroached suit ‘G’ schedule property and is

in illegal and unauthorized occupation of the same.

Learned

counsel

would

further

submit

that

no

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Commissioner could be appointed to identify the suit

schedule property and gather or collect the evidence. The

trial Court committed an error in allowing plaintiffs'

application for appointment of Commissioner to find out

the encroachment. Learned counsel further submits that it

is for the res