M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS is an appeal by the defendants against the concurrent findings of the courts below : ( 2 ) PLAINTIFF filed O. S. No. 309 of 1974 in the Court of the Addl Munsiff, k. G. F. , for declaration of his title to the suit property which consists of a site measuring 35 x 45 feet, situated in Gopasandra village in Malur Taluk. The injunction sought for against the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property by plaintiff was granted to him on the strength of the order of the tahsildar, Malur Taluk, dated 11-6-1974 under which the plaintiff had purchased the piece of land involved herein, which was marked in the trial Court as per ex. P-1. ( 3 ) DEFENDANTS resisted the suit on the ground that the suit schedule property was their ancestral property and that they had in fact built a hut on the suit schedule site which collapsed and which was being used for tathering their cattle within the standing walls without roof. There is also an averment to the effect that foundation has been laid on three sides for a fresh construction. ( 4 ) BOTH the plaintiff and defendants led oral and documentary evidence in support of their rival contentions. The trial Court, apart from accepting Ex. P-1 as prima facie evidence of title, held plaintiff to be in possession relying upon the oral evidence of DW-1, who was none other than the patel of the village and who had handed over Ex. P-l to the plaintiff. That witness had stated that the suit schedule property was Government land and that it was granted to the plaintiff. It, however, rejected the plea of the defendants on the sole ground that they had failed to prove that it was their ancestral property or that the hut existed. The appellate Court has concurred with the findings of the trial Court. Therefore the present second appeal. ( 5 ) SRI R. Nagaraj, learned counsel appearing for the appellants, has strenuously urged before me two questions of law, which according to him, if answered in his favour should lead this Court to the conclusion of setting aside the judgments and decrees of the lower Courts. Therefore the present second appeal. ( 5 ) SRI R. Nagaraj, learned counsel appearing for the appellants, has strenuously urged before me two questions of law, which according to him, if answered in his favour should lead this Court to the conclusion of setting aside the judgments and decrees of the lower Courts. ( 6 ) THE first question is that in spite of the oral evidence to the effect that a hut was built on the suit schedule site by the defendants and their ancestors, the courts below could not have come to the conclusion that there was no hut at all. It is seen from the evidence of defendants themselves that the hut had collapsed and that it was being used as a cow-shed and later some foundation was laid. Theses facts do not constitute proof of title to the property. If title is not proved in such situation, it leads to the inevitable inference that they trespassed into the suit schedule site which admittedly belonged to the Government as stated by DW-1 and had put up the construction It was never their plea that they had perfected their title against the Government with regard to the suit schedule site by adverse possession. That being the position, the Courts below were justified in ignoring that part of the oral evidence of the defendants which spoke of the. existence of a hut which was really a matter which do not go to the root of the title of either the defendants or the plaintiff. Therefore, the Courts below were correct in upholding the case of the plain tiff which was based on Ex. P-1 and the evidence of DW-1 himself ( 7 ) THE second question urged was that the application under Order 26, rule 9 of the Code of Civil Procedure, made by the defendants, was summarily rejected by the Court below which seriously prejudiced the case of the defendants in as mach as the application was for appointment of a Commissioner to examine whether the foundation was there or not on the suit schedule property as alleged by the defendants. The reason given by the Court below for rejecting the said application is that it was made after the case on both the sides had been closed and the case had been reserved for pronouncement of judgment. The reason given by the Court below for rejecting the said application is that it was made after the case on both the sides had been closed and the case had been reserved for pronouncement of judgment. No doubt, the Courts below have placed reliande on the decision of the Supreme Court reported in the case of Arjun Singh v. Mahindra kumar, AIR 1964 SC 993 (1 ). In that case the Supreme court was dealing with the case of an order, under Order IX, rule 7 of the Code of Civil Procedure, passed by the Court placing the defendants ex-parte. The supreme Court therein came to the conclusion tnat the Court had no other way thereafter except to proceed to judgment. Though the analogy may not be an apposite one, nevertheless the fact remains that order XXVI, rule 9 of the Code provides for the appointment of a commissioner on the application of the party to do certain things enumerated therein through a commissioner appointed by it The power of appointing the Commissioner is a discretionary power depending upon the fact's of each case. In the instant case, apart from the reason given that the application was belated, with regard to the first question of law urged for the defendants, I have held that existence or non-existence of a hut was not the dispute in issue before the trial Court. What was urged before the Courts, as 1 have already pointed out, was the title of the plaintiff or the defendants as asserted by them. If the existence or non- existence of the demolished hut or the foundation did not go to the root of either party's case, the failure to appoint a commissioner has not done any substantial injury to the defendants. ( 8 ) FOR the reasons given, this second appeal is rejected. --- *** --- .