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 respondents-plaintiffs to prove their case by

producing materials on record. It is further submitted that

the materials produced by the parties would be sufficient

to decide the question involved in the suit. Therefore, he

prays for allowing the writ petition and to set aside the

impugned order appointing the Commissioner.

Having heard the learned counsel for the

petitioner and on perusal of the writ petition papers, I am

of the view that the petitioner has not made out any

ground to interfere with the impugned order and the trial

Court is justified in appointing the Court Commissioner to

find out the encroachment.

Order 26 Rule 9 of CPC, permits the Court to

appoint the Commissioner for local investigation for the

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purpose of elucidating any matter in dispute and to report

there on to the Court. A Co-ordinate Bench of this Court

in W.P.No.201274/2022 disposed of on 24.01.2023 while

considering appointment of Commissioner under Order 26

Rule 9 of CPC, at Paragraph Nos.12, 14 and 21 has held as

follows:

”12. Under the provisions applicable for local

inspection what is impermissible is the delegation

of adjudicating power. To cite an example, if both

parties claim to be in possession of the disputed

property, the local inspection by the Commissioner

cannot be ordered to ascertain the possession. The

question of possession is to be decided by the

court. However, if one party alleges encroachment

by

another

and

another

party

denies

such

allegation, the Commissioner can be appointed to

ascertain whether there is encroachment or not. In

such a situation the Commissioner is appointed to

find out the nature of possession. The report based

on local inspection will be a handy tool to decide

the case relating to encroachment. In the case on

hand, the petitioner to prove his assertion of

encroachment, instead of leading oral evidence of

witnesses has applied for local inspection, and the

same is not only permissible but also desirable.

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14.

The discretion, though lies with the

court, as to appoint the Commissioner before the

trial or after the trial, the decision must be taken

with due regard to the possibility of reducing or

eliminating the need to record the oral evidence of

witnesses to prove an issue which could be

effectively decided with the aid of the report. More

often than not, in disputes relating to the existence

of pathway, stream, pond, well, or disputes relating

to

the

boundary

between

adjoining

holders,

encroachment,

easement

of

air

and

light,

construction of building in violation of setback

rules, or relating to the authenticity of a document,

signature/thumb impression to name a few by way

of illustration, a report secured before the trial may

cut short the trial in as much as the party relying

upon the report may not exa