Appointment of a Court Commissioner under Order XXVI Rule 9 CPC is permissible and necessary in suits for permanent injunction when there is a serious dispute regarding the identity, extent, and boundaries of the property to ensure proper adjudication.

THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN O.S.NO.129/2020 ON THE FILE OF CIVIL JUDGE AND J.M.F.C. AT SORABA AND TO QUASH / SET ASIDE THE ORDER DATED 19.11.2025 MADE ON I.A.NO.3 IN O.S.NO.129/2020 PASSED BY THE CIVIL JUDGE AND J.M.F.C. AT SORABA AS THE SAME, BEING ARBITRARY, ERRONEOUS AND OPPOSED TO LAW, EQUITY AND JUSTICE (ANNEXURE-E) AND ETC.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL ORDER

This petition by defendant No.1 is directed against the impugned order dated 19.11.2025 passed in O.S.No.129/2020 by the Civil Judge & JMFC, Sorabla, whereby I.A.No.3 filed by the respondent-plaintiff under Order XXVI Rule 9 CPC was allowed by the Trial Court by holding as under:

“ORDER ON IA NO.11 UNDER ORDER XXVI RULE 9 of CPC

The present application filed by the plaintiffs for appointment of court commissioner i.e., Taluk Surveyor to make inspection/ investigation of the suit schedule property and prepared map and fix the boundaries as per the memo of the instruction and submit report in this court.

This application annexed with the affidavit sworn the plaintiff No.2 stated that the plaintiffs have filed the present suit for the relief of permanent injunction against the defendant. Further it is averred that, the suit schedule property is joint in possession of plaintiffs. The grandfather of defendant purchased 2 acres of land in Sy.No.8/5 towards northern side from the grandfather of the plaintiffs Gadigeppa S/ Shivalingappa and defendant claiming excess land and cultivating in the said land. There is a boundary between the plaintiffs and defendant property and excess land claimed by the defendant and it is necessary to appropriate identification the property with referred to the document produced by the party is very much necessary by local inspection/investigation of the property under the technical hand for proper adjudication of the matter. Under these circumstances the appointment of Talk Surveyor as court commissioner for identification of the property to fixing the boundaries is very essential. If the application is not allowed, the plaintiffs will be put to loss and hardship. On these grounds, the plaintiffs prayed for allow the application.

Per contra, the defendant has filed the separate detailed objections and it is contended that the present suit is bare injunction suit and plaintiff has prove his case on his own strength. He cannot take assistance from the technical to prove his case. Further it is contended that there was a partition on 22.02.1952 between the plaintiffs family and as per the said partition in Sy.No.8 divided amongst the parties and the said partition is registered one and in the said partition, the plaintiffs father allotted 3 acres 18 guntas of land in the suit schedule property. But they are claiming 4 acre 3 guntas of land. The plaintiffs have not produced any documents to show that they are in possession of entire 4 acre 3 guntas of land. Hence, with these contentions, the defendant prays to reject the application.

Upon hearing arguments and perusal the material placed on record.

Now the following points arise for my consideration:

POINTS

1) Whether the application filed by the plaintiffs are deserves to be allowed for appointment of court commissioner to decide the matter in controversy with the parties?

2) What Order?

My finding to the above points are as follows:

Point No. 1 : In the Affirmative.

Point No.2 : As per final order for the following:

REASONS

Point No.1:-

Before projecting on point No.1, it is just and necessary to narrate the gist of the case in order to proper consideration of point No.1.

The plaintiffs have filed the suit against the defendant for the relief of permanent injunction on the ground that the suit schedule property was allotted their father, under the partition on 17.05.1990. The plaintiff has cultivating in the suit schedule property a