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3. In the said suit, the petitioner had filed an application under Order 26 Rule 9 of the Code of Civil Procedure seeking for appointment of the Assistant Director of Land Record (ADLR) to carry out measurement of the land in Sy.No.158/1 to ascertain the extent of land used for the formation of the road as also the road laid by the respondents in the aforesaid land. The said application has been opposed by the respondents, the trial Court vide its order dated 21.7.2023 dismissed the said application, holding that the allowing of the said application would amount to collection of evidence and insofar as any violation of the injunction order already granted is concerned, the same could be agitated in the Civil Misc.No.9/2021, registered for violation of the NC: 2024:KHC-K:7361 injunction order under Order 39 Rule 2(a) of the Code of Civil Procedure, it is challenging the same, that the petitioner is before this Court seeking for the aforesaid reliefs.

8. In that view of the matter, I am of the considered opinion that the trial Court erred in coming to a conclusion that appointment of ADLR would amount to collection of evidence, when in fact it would have been to ascertain the truth of the matter and the actual status of the land. The order of the trial Court suffering from the aforesaid infirmity is required to be set aside and is therefore set aside and I pass the following;

ORDER i. The writ petition is allowed.

NC: 2024:KHC-K:7361 ii. A certiorari is issued, the order dated 21.7.2023 passed on IA No.VII by the III Additional Civil Judge at Kalaburagi in OS No.480 of 2016 is set aside.

iii. Consequently, IA No.VII is allowed, the jurisdictional ADLR is appointed as a Commissioner to carry out a survey of the land in Sy.No.158/ Kamalapur village, Kalaburagi taluk and district demarcate the boundaries of the said survey number as also the boundaries and extent of the road formed in the said survey number, superimpose the same with that indicated in the village map and determine, if the road formed in the land of the petitioner is in accordance with the village map or in excess thereof, if in excess how much in excess.

iv. Since the order is passed in the presence of both the counsels, the jurisdiction ADLR is directed to carry out a survey without requirement of any notice to the parties as NC: 2024:KHC-K:7361 indicated above, commencing from 10:30 a.m. on 7.10.2024 and submit a report by the 21.10.2024 in OS No.480 of 2016, which shall be so considered by said Court.