The

petitioners

being

the

defendants

in

O.S.No.574/2011 on the file of I Addl. Civil Judge and

JMFC, Malur (henceforth referred to as 'Trial Court' for

short), have filed this writ petition challenging the

correctness of an order dated 26.10.2021, by which the

Trial Court rejected an application filed by them under

Order XXVI Rule 9 of the Code of Civil Procedure, 1908

(henceforth referred to as 'CPC' for short).

2.

The parties shall henceforth be referred to as

they were arrayed before the Trial Court.

3.

The suit in O.S.No.574/2011 was filed for

perpetual injunction in respect of a land bearing old

Sy.No.59 and new Sy.No.59/P6 of Nallandahalli, Masthi

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Hobli, Malur Taluk. The plaintiff claimed that the suit

property was granted in his favour by the Tahsildar, which

was evidenced by a grant certificate dated 19.08.1998. He

claim that he was in possession of the suit property from

the date of grant, consequent to which, the revenue

proceedings were initiated in MR No.6/1999-2000 to enter

his name. He claimed that his name was entered in the

RTC from year 1999-2000 till date. He claimed that the

defendant No.1 was his brother, while defendant Nos.2 to

4 were the sons of defendant No.1, who were in

possession of the land bearing Sy.Nos.77 and 59. The

plaintiff claimed that the defendants though having no

manner of right, title or interest in the suit property, were

attempting to interfere with his possession and therefore,

the suit was filed for perpetual injunction.

4.

The defendants contested the suit and claimed

that the plaintiff and defendant No.1 were granted 35

guntas each in Sy.No.59. They alleged that the plaintiff

was trying to take advantage of the wrong description of

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the properties in the grant certificate of the plaintiff and

the defendant No.1. They claimed that Sy.No.77 was the

ancestral property of plaintiff and defendants and Nagappa

as well as Ramakrishnappa. They contended that the

boundaries mentioned in the suit schedule were not

correct. They claimed that the correct boundaries of the

property granted to the plaintiff were different from what

was found in the grant certificate.

5.

Based on these contentions, the Trial Court

framed issues and set down the case for trial. After the

conclusion of evidence, the defendants filed an application

under Order XXVI Rule 9 of CPC for appointment of

Commissioner to identify the boundaries of the property in

possession of the plaintiff as well as the defendants. The

Trial Court in terms of the impugned order, rejected the

application on the ground that there was no justifiable

reason

for

appointment

of

a

Commissioner.

Being

aggrieved by the said order, the present writ petition is

filed.

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6.

The

learned

counsel

for

the

petitioners/defendants submitted that the plaintiff himself

had

filed

an

application

before

the

Tahsildar

for

rectification of the boundaries mentioned in the grant

certificate and therefore, the request of the defendant

Nos.1 to 4 for appointment of the Court Commissioner was

justified.

7.

Per

contra,

the

learned

counsel

for

plaintiff/respondent submitted that the application filed by

the defendants is only to protract the proceedings in the

suit. He contended that the Trial Court has held that if the

Court considers it appropriate to appoint the Court

Commissioner, it can do so and therefore, there is no need

for appointment of a Court Commissioner and the

discretion should be left to the Court itself.

8.

I have considered the submissions made by

the learned counsel for the parties.

9.

It is well settled that a Commissioner for local

inspection need not be appointed for the mere asking by

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any of the parties to the suit. The appointment of a Court

Commissioner is to be left to the absolute discretion of the

Trial Court. If the Trial Court considers it necessary and if

the evidence on record is not sufficient to render a finding

on fact, it could appoint a Commissioner for local

inspection.

10.

In the present case, the parties have already

add