ORDER

1. This petition is directed against the impugned order dated 13.01.2023 passed on I.A.No.3 in O.S.No.385/2015 on the file of the Principal Civil Judge and JMFC, Devanahalli (for short “the Trial Court”), whereby the said application, I.A.No.3 filed by the petitioner-defendant under Order 26 Rule 9 CPC for appointment of a Court Commissioner to conduct local inspection of the suit schedule property was allowed by the Trial Court.

2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

3. The material on record discloses that the respondent-

plaintiff instituted the aforesaid suit for declaration, mandatory injunction, permanent injunction and other reliefs in relation to the suit ‘A’ and ‘B’ schedule immovable properties. In addition to other contentions, respondent-plaintiff contended that the petitioner- defendant had encroached upon the suit ‘A’ schedule property and the same was described as the suit ‘B’ schedule property by the plaintiff. The said suit is being contested by the petitioner- defendant, who not only disputed and denied the various allegations and claim made by the plaintiff, but also disputed and denied the allegation and claim of the plaintiff that the petitioner-

defendant had encroached upon the suit schedule properties. 4. During the pendency of the suit, the respondent-plaintiff has filed an application, I.A.No.3, under 26 Rule 9 CPC seeking appointment of Court Commissioner to conduct local inspection the suit schedule properties and to submit a report. The said application having been opposed by the petitioner-defendant, the Trial Court proceeded to pass the impugned order allowing I.A.No.3, aggrieved by which, the petitioner is before this Court by way of the present petition.

5. A perusal of the material on record including the impugned order will indicate that the impugned order passed by the Trial Court allowing I.A.No.3 for appointment of Court Commissioner will clearly indicate that there is a dispute regarding location, identity, measurements, boundaries, alleged encroachment, etc., in relation to the properties claimed by both sides, which would make it just and expedient to appoint a Court Commissioner to conduct local inspection for the purpose of enabling the Trial Court to elucidate the issues in controversy between the parties. The impugned order passed by the Trial Court is also in conformity with the well settled principles of law governing appointment of Court Commissioner to conduct local inspection as enunciated by this Court in the case of SHADAKSHARAPPA Vs. KUMARI VIJAYALAXMI - W.P.No.201274/2023 DATED 24.01.2023, as can be seen from the impugned order which reads as under:

ORDER ON I.A. NO. III “The plaintiff has filed I.A. Under Order 26 Rule 9 of C.P.C., seeking for appointment of Court commissioner for inspect and measuring and submitted report with respect to suit property.

2. In support of the application, plaintiff has affixed an affidavit with application and she stated that, plaintiffs have filed this suit against defendant seeking relief of declaration and consequential relief of possession, the defendant has denied that he has tress passed in her land, this tussle could b remove by measuring the land of both of them, any amount of oral evidence will not solve the dispute, hence present application is filed, there is a boundary dispute among the parties and sin such circumstance surveyor is to be appointed is the law laid down by the Hon'ble High court f karnataka, hence that the court commissioner spot verification and report of court, court commissioner is very much necessary and required to above suit. Hence, prays to allow the application.

3. On other hand, defendant has resit application filed by plaintiff and contended that, the application filed by the plaintiff is not not maintainable either under law or on facts, plaintiff has filed the above suit for the relief of declaration to declare that she is th