ORDER

1. Aggrieved by the order dated 19.06.2024 passed by II Additional Civil Judge and JMFC, Mangaluru, on I.A.No.4 filed under Order 26 Rule 9 read with Section 151 of CPC for appointment of a Commissioner in O.S.No.560/2024, the defendants therein have preferred this writ petition.

2. Respondent herein is the plaintiff in O.S.No.560/2024.

It has filed the original suit with the following prayers:

"V. Therefore, the plaintiff prays for judgement and decree in their favour and against the defendants for the following reliefs:

a) For a mandatory injunction directing the defendants jointly and severally to reconstruct compound wall on the western side of the plaint schedule property to its original condition leaving 2 sluices of sufficient width and height for free flow of water as it was before it was demolished by them within the time to be fixed by the Honourable Court and on their failure to do the same through the process of court at the cost of the defendants.

b) For a permanent prohibitory injunction restraining the Defendants their men, servants, agents or any person claiming through or under them from preventing free flow of rain water of the properties of the Plaintiff through the western side of the plaint schedule property into the adjacent property now belonging to the Defendants.

c) Directing the defendants to pay jointly and severally a sum of `3,00,000/- towards the damages to the plaintiff.

d) For a permanent prohibitory injunction restraining the Defendants, their men, servants, agents or any person claiming through or under them from committing any acts of waste and damage to the plaint schedule property or trespassing plaint schedule property or encroaching any of the portion of the plaint schedule property or in any way interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff.

e) Cost of the suit.

f) Such other and further relief's as the court deems fit to grant."

3. In the original suit, it is contended by the respondent that the property of the petitioners is on the western side of the respondent's property and it has a lower gradient and the water flows naturally from the respondent's property to the petitioners' property and the petitioners by their actions have blocked natural flow of the water by destroying the existing boundary wall and putting up other restrictions and consequently, there is a water logging in the property of the respondent.

4. The petitioners have filed their written statement before the trial court and have contended that their property is on the eastern side and the property of the respondent is on the western side and in fact to their eastern side there is a road and there is no private property. The other averments made by the respondent are also denied. The petitioners have also produced a copy of the sale deed which also contains a sketch which is a registered instrument, which also reveals that on the eastern side of the property purchased by the petitioners there is a road and on the western side there is a private property.

5. Along with the plaint, the respondent has filed an application under Order 26 Rule 9 of CPC with the following prayers:

"For the reasons stated in the accompanying affidavit, the applicant herein prays that this Honourable Court may be pleased to appoint advocate Commissioner to note and report the points mentioned hereinbelow with the assistant of the surveyor and grant such other and further reliefs in the interest of justice.

POINTS TO BE NOTED BY THE COMMISSIONER:

1. To note and report the topography of the Plaint schedule property mentioned in the plaint and defendants property situated adjacent to the western boundary of the plaint schedule property.

2. To note and report that the plaint schedule property is sloping in east to west direction and natural flow of rain water from plaint schedule property to Defendant's property.

3. To note and report the existence of the old compound wall along the western boundary of the