ORDER

This petition is directed against the impugned order dated

17.04.2023 passed in O.S.No.92/2023 by the Principal Civil Judge and JMFC, Puttur, Dakshina Kannada (for short “the Trial Court”), whereby the application, I.A.No.3 filed by the respondents- defendants under Order 26 Rule 9 CPC for appointment of a Court Commissioner to conduct local inspection was allowed by the Trial Court.

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

3. The material on record discloses that the petitioner-

plaintiff instituted the aforesaid suit against the respondents- defendants for permanent injunction and other reliefs in relation to the suit schedule immovable property. In the said suit, the respondents-defendants in addition to contesting the claim of the plaintiffs have also sought for a counter claim in relation to the written statement schedule property. Prior to commencement of trial, the respondents-plaintiffs filed the said application, I.A.No.3 for appointment of Court Commissioner and the same having been opposed by the petitioner-plaintiff, the Trial Court proceeded to pass the impugned order allowing the said application by holding as under:

“ORDER ON I.A.NO. III filed u/o 26 Rule

9 R/W U/Sec. 151 of CPC.

Learned counsel for defendant has filed application to appoint to senior Advocate of Puttur Bar Association as Court Commissioner for holding local investigation of disputed land to note existence of Written Statement R schedule Road and its topography features/damage caused to the road, fresh agalu in between Sy.No. 311/2 and Sy.No. 273/1B and Sy No. 311/3 Government land.

2. Along with the I.A. defendant No.1 has filled affidavit stating that, plaintiff has filed a suit with an intention of blocking old approach road existing in the family land which leads to farm house and other lands of the defendant by encroaching into government land S.No. 311/3 of Nettanige Mundoor village i.e., is in possession and enjoyment of the defendant.

3. It is the case of the defendant that the entire property was belonging the join family of Sri. K.R.Bhandary that includes the property purchased by the plaintiff. It is the case of the defendant that the family property has a common boundary within which varga land, Devasthana, Naga bandhana and government land exists. It is the defendants case that there exists an ancient mud road, leading to the family house which is about 10 meters wide starting from surulimoole-koppala Grama Panchayath Road and enters family property where iron gate is placed with literate stones pillars.

4. It is the case of the defendant that plaintiff and her husband contending that, said road, passes in property purchased by them intends to block the same. It is the defendant case that, said road is in existence for over 150 years and is the only road to reach farm land and farm house, Devasthana. The road is described as R schedule property.

5. It is the case of the defendant that plaintiff on the guize of the injunction order dug road across point C and D shown in the eye sketch and formed agalu in between S.No. 311/2 and S.No. 273/1B and continued with the same in S.No. 311/3 Government land. It is their contention that, S.No. 311/3 in the possession of the defendant No.1 It is the contention of the defendant that the plaintiff has blocked the road and defendant cannot access the farm house and the Devasthanas. It is contended that, the defendant No.1 cannot irrigate areca garden which consists of more than 2,500 trees. It is the contention of the defendant No.1 that farm land and farm house is completely disconnected from the outer word as such it is necessary to appoint commissioner to note the real state of the land. Accordingly, prays to allow the application.

6. Learned counsel for defendant No.2 and 3 have filed memo stating that they have no objections in appointing of commissioner as prayed in I.A.No. III filed by Defendant No.1.

7. Learned Counsel f