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The petitioner being defendant No.9 has filed suit in O.S.No.389/2013 on the file of the learned I Additional Senior Civil Judge, Hubballi, impugning the order dated 01.08.2019 produced as per Annexure-M.

2. Heard learned counsel Sri.Prashant S. Hosamani, appearing for petitioner and learned counsel Sri.S.S.Niranjan, appearing for respondent Nos.1 and 2.

3. Learned counsel for the petitioner submits that the plaintiff filed the suit O.S.No.389/2013 for declaration and for permanent injunction. During the pendency of the suit, Petitioner/defendant No.9 filed application under Order 26 Rule 9 read with Section 151 of the Civil Procedure Code (for short, 'the CPC'), seeking appointment of the Court Commissioner for the purpose of measuring the property and to submit the report. The said application came to be rejected and impugning the same, petitioner had approached this Court by filing NC: 2024:KHC-D:5882 WP.No.108645/2018. This Court vide order dated 05.03.2019 allowed the petition with the consent of the learned counsel for the respondents and appointed the Assistant Director Of Land Records, Hubballi, (for short, 'the ADLR') as Commissioner to conduct spot inspection of the property in question and to submit the report. When the Commission Warrant was issued and the ADLR visited the spot for execution of the Commission Warrant, objections were raised by respondent Nos.1 and 2 for measuring the property. Therefore, the petitioner has filed an application seeking clarification and to issue direction to the Commissioner ADLR to measure the property and to submit report. The impugned order came to be passed by rejecting the said application and directing the petitioner to approach this Court. Therefore, petitioner is before this Court.

4. Learned counsel submitted that the averments made in the application filed under Order 26 Rule 9 of the CPC, discloses that the petitioner has requested for NC: 2024:KHC-D:5882 appointment of the Court Commissioner preferably a Surveyor attached to the office of ADLR, to measure the property and to submit the report in respect of the suit property and 15 guntas of land alleged to be belonging to defendant Nos.1 and 2. When W.P.No.108645/2018 was filed, the learned counsel for the petitioner and learned counsel for the respondents have arrived at consensus, as a result of which petition was allowed and ADLR, was appointed as Commissioner. Even though the Court has directed the Court Commissioner to hold local inspection and to submit the report, it is obviously after measuring the land. Otherwise appointment of ADLR was not at all necessary. Hence, he prays for allowing the petition, issuing specific direction to Court Commissioner to measure the suit property including 15 guntas of land which is claimed by the respondent Nos.1 and 2.

6. Perused the materials on record.

7. Admittedly, the petitioner-defendant No.9 had filed application under Order 26 Rule 9 of the CPC praying to the trial Court to appoint Court Commissioner, preferably a Surveyor to attack to the office of ADLR for making local inspection. In the affidavit accompanying the application, defendant No.9 has stated that they have taken a specific defence in the written statement that the defendant Nos.1 and 2 are not in actual possession and enjoyment of the alleged 15 guntas of land. Under such NC: 2024:KHC-D:5882 circumstances, it is necessary to appoint the Court Commissioner, preferably a Surveyor attached to the office of ADLR, to make local inspection of the suit property and the said 15 guntas of land alleged to be belonging to the defendant Nos.1 and 2. It is also stated that the report from the Court Commissioner in this regard is necessary to completely and effectively adjudicate the lis between the parties. The said application was rejected by the trial Court as the same was opposed by respondent Nos.1 and 2 by filing objections.

10. Now, the short point that is be considered by this Court as to whether the Court Commissioner i.e. ADLR was appointed only to visit the property and to submit the report or to measure the property and thereafter submit the report.

NC: 2024:KHC-D:5882

11. I have already noted that the application filed by the petitioner before the trial Court specifically states that the suit property and 15 guntas of the land alleged to be belonging to the defendant Nos.1 and 2 are to be measure and report is to be submitted. Therefore, the application was filed for appointment of Court Commissioner, preferably a surveyor. When the order was passed by this Court in W.P.No.108645/2018, the ADLR, was appointed as the Court Commissioner, with a direction to conduct inspection of the property in question and to submit the report. It is true that this Court has not directed the Court Commissioner to measure the property and submit the report. But the fact remains that the ADLR, is appointed as Court Commissioner and therefore, it is obvious that the Court Commissioner is required to measure the property and to submit his report. If there was no need for measuring the property and if it was the intention of this Court that the Commissioner only visits property and submits the report without measurement, there was no necessity for this Court to appoint the ADLR NC: 2024:KHC-D:5882 as Court Commissioner. By interpreting the order of this Court, ignoring the purpose for which the application was filed by the petitioner seeking appointment of the Court Commissioner, will render the order appointing the Commissioner meaningless. No prejudice will be caused to respondent Nos.1 and 2, if the Court Commissioners measures the property and submits his report.