The petitioner-plaintiff in O.S.No.6194/2003 on the

file of the V Additional City Civil and Sessions Judge,

Bengaluru, is before this Court, aggrieved by rejection of

I.A.No.18 filed under Order 26 Rule 9 of the Code of Civil

Procedure, 1908 (for short 'CPC') for appointment of the

Commissioner to measure the suit schedule property as

well as to measure the property of defendant No.2.

Heard Sri. R.Chandra Kumar, learned counsel

for the petitioner and Sri. N.R.Harish, learned counsel for

respondent No.1 as well as Sri. Arjun.R.Khot, learned

counsel for caveator/respondent Nos.2, 3 and 4. Perused

the writ petition papers.

Learned counsel for the petitioner would submit

that the suit of the petitioner/plaintiff is one for permanent

injunction restraining the defendants/respondents from

interfering/putting up the fencing stones into peaceful

possession and enjoyment of the suit schedule property

and to declare that the plaintiff is the absolute owner, in

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possession and enjoyment of the suit schedule property.

Learned counsel for the petitioner would submit that at the

stage of arguments, the petitioner-plaintiff filed I.A.No.18

under Order 26 Rule 9 of CPC, praying to appoint

Commissioner to measure the suit schedule property as

well as property of defendant No.2. Learned counsel

further submits that the petitioner is claiming property to

an extent of East to West 48 feet and North to South

36 feet. Whereas, the defendants denied the measurement

stated by the plaintiff in the suit stating that no

measurements are mentioned in the sale deeds, through

which the petitioner-plaintiff claims his title and right over

the property. It is submitted that the trial Court committed

an error in rejecting the application observing that the

plaintiff shall have the right only for the area of property

as it comprised in the sale deed. Learned counsel would

further submit that the petitioner would be entitled to the

area within the boundary mentioned in the suit schedule

property and further he submits that the boundary would

prevail when extent is in dispute. Thus, he prays for

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allowing the writ petition by setting aside the impugned

order and to appoint the Court Commissioner to measure

the property, which would assist the Court in proper

adjudication of dispute between the parties.

Learned counsel for caveator/respondent Nos.2,

3 and 4 oppose the prayer of the petitioner and he support

the order passed by the trial Court. Learned counsel would

submit that the petitioner acquired the property under the

sale deed dated 28.08.1939 (impugned order indicates

sale deed dated as 28.08.1989) and the said sale deed

would not indicate the measurement of the property.

Therefore, he submits that it is for the petitioner to

establish the measurement of the property over which he

has right and title.

5.

Learned counsel Sri. N.R.Harish for respondent

No.1 would support the plaintiff and submits that the

appointment of Commissioner would facilitate the Court in

arriving at proper conclusion of the dispute between the

parties. Thus, he prays for allowing the writ petition.

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6.

Having heard the learned counsel for the parties

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 passed by the trial

Court. The impugned order is neither perverse nor suffers

from any material irregularity.

7.

The suit schedule would indicate the petitioner-

plaintiff claims property measuring East to West 48 feet

and North to South 36 feet. The plaintiff claim his right,

title over the suit schedule property on the basis of sale

deed dated 28.08.1939 registered on 30.08.1939. The

impugned order makes it clear that the plaintiff would be

entitled for the property in terms of the sale deed and not

more than that. It is for the petitioner-plaintiff to establish

from the material on record that he would be entitled for

the measurement of the property, w