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3. Heard Sri. Mahadev S. Patil, learned counsel for the appellant and Sri. S.B. Hangarki, learned counsel for the caveator/respondent.

4. On hearing, this Court has framed the following substantial question of law:

NC: 2023:KHC-K:7936 "Whether I.A.No.1/2023 filed under Order 26 Rule 9 of CPC for appointment of an ADLR, Shahapur as Surveyor needs to be allowed and the impugned judgment and decree of the Courts below require interference?"

5. Learned counsel for the appellant has filed I.A.No.1/2023 under Order 26 Rule 9 of CPC for appointment of an ADLR, Shahapur as surveyor to measure the disputed land and to ascertain as to the situation of bore-well. The facts of the case in brief are that, the plaintiff filed suit for the relief of perpetual injunction restraining the defendant from interfering with the use of bore-well situated in his own land in Sy. No.80/Aa. It is contended by the plaintiff that the suit property is the ancestral property of the plaintiff and the plaintiff drilled a bore-well in his suit land in the month of February, 2011 and is having every right to use the same. The plaintiff contended that the defendant without having any right, he is using the bore-well situated in the plaintiff's suit property.

13. It is also relevant to note that against the order passed on I.A.No.7, wherein the Commissioner was appointed by the Trial Court, the writ petition was preferred before this Court and this Court reserved liberty NC: 2023:KHC-K:7936 to the appellant to seek modification or review of the order on I.A.No.7 filed for appointing an advocate as Court Commissioner. Pursuant to the order passed by this Court, the appellant had filed application for appointment of a Surveyor as Court Commissioner, however, it appears that the Trial Court dismissed the said application and posted the matter for arguments. In such circumstances, the present application-I.A.No.1/2023 has been filed by the appellant to appoint an ADLR, Shahapur as a surveyor to measure the disputed land and situation of the bore- well by conducting local inspection in respect of the disputed suit bore-well by demarcating the area in which the bore-well exists.

14. The respondent/defendant filed objections to the application inter alia contending that the Trial Court after hearing the parties, appointed an advocate as Court Commissioner and memo of instructions was submitted and the Trial Court recorded evidence of the Court Commissioner. It is also contended that I.A.No.8 filed by NC: 2023:KHC-K:7936 the plaintiff to appoint an ADLR as a surveyor was rejected by the Trial Court and in the said circumstances, I.A.No.1/2023 operates as res judicata. It is also relevant to note here that the advocate, who was appointed as a Court Commissioner has expressed his inability to survey the said land in the absence of an ADLR as surveyor. An ADLR surveyor is necessary to survey and mark the boundaries between the two survey numbers and the surveyor can make demarcation and state regarding the situation of bore-well as the dispute warrants in such circumstances. Both the parties have produced documentary evidence and photographs to show the actual spot of the situation of the bore-well.