The petitioner, plaintiff in O.S.No.204/2012 on the

file of the Additional Civil Judge and JMFC, Holalkere, is

before this Court aggrieved by order dated 15.09.2023,

rejecting I.A.No.14 filed under Order 26 Rule 9 of the Code

of Civil Procedure, 1908 (for short 'CPC') requesting to

appoint

the

Court

Commissioner

to

find

out

the

encroachment.

Heard

Sri.

T.C.Shivakumarappa,

learned

counsel for the petitioner and Sri. Bopanna Belliappa,

learned Additional Government Advocate for respondent

Nos.1 to 8. Perused the writ petition papers.

Learned counsel for the petitioner would submit

that the suit of the petitioner-plaintiff is for mandatory

injunction to remove the huge quantum of soil dumped by

defendant Nos.7 and 8 in the suit schedule property and

also to remove the compound wall constructed by the

defendants. Learned counsel would further invite attention

of this Court to the plaint averments, wherein the plaintiff

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has specifically alleged that the defendants have dumped

the soil by encroaching the property of the plaintiff.

Learned counsel further submits that after completion of

the evidence, the petitioner-plaintiff filed I.A.No.14 under

Order 26 Rule 9 of CPC with a prayer to appoint the

competent, proper and fit person/taluk surveyor as a

Court Commissioner to measure the suit schedule

property, to measure and identify the encroached area.

It is further submitted by the learned counsel for the

petitioner that the trial Court committed an error in

rejecting the said application and refusing to appoint the

Commissioner to find out encroachment. Learned counsel

places reliance on the order passed by the Co-ordinate

Bench of this Court in W.P.No.201274/2022 dated

24.01.2023 and submits that whenever there is allegation

of encroachment, it would be appropriate for the Court to

appoint the Court Commissioner to find out encroachment

and also extent of encroachment. Thus, he prays for

allowing the writ petition.

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Learned AGA on the other hand would support

the order passed by the trial Court and would submit that

the petitioner-plaintiff had filed similar application and by

withdrawing

the

said

application,

filed

one

more

application for appointment of Commissioner. Further, he

submits that it is for the petitioner-plaintiff to establish

encroachment and appointing Commissioner to find out

encroachment would amount to collection of evidence.

Thus, he prays for dismissal of the writ petition.

Having heard the learned counsels for the

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

the view that the trial Court committed an error in

rejecting I.A.No.14 filed under Order 26 Rule 9 of CPC,

requesting to appoint Court Commissioner or Taluk

Surveyor

as

Court

Commissioner

to

find

out

encroachment.

Order 26 Rule 9 of CPC, permits the Court to

appoint the Commissioner for local investigation for the

purpose of elucidating any matter in dispute and to report

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there on to the Court. In the instant case, it is specific

allegation of the petitioner-plaintiff that the defendants

encroached plaint suit schedule property and dumping soil.

To find out the same, the petitioner-plaintiff has rightly

filed application under Order 26 Rule 9 of CPC for

appointment

of

the

Commissioner

to

find

out

encroachment and extent of encroachment. Any amount

of oral or documentary evidence would not be sufficient to

find out encroachment. Therefore, it would be appropriate

for the trial Courts to appoint Commissioner to find out

encroachment.

A

Co-ordinate

Bench

of

this

Court

in

W.P.No.201274/2022

dated

24.01.2023

had

an

opportunity to examine the circumstances under which the

Commissioner be appointed under Order 26 Rule 9 of CPC.

In the above referred decision, Co-ordinate Bench at

Paragraph Nos.12, 13 and 14 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

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parties claim to be i