Karnataka High Court
Sri. Mahadevappa S/O Malleshappa Gadag vs Late Basanagoud S/O Shankargouda ... on 14 November, 2025
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NC: 2025:KHC-D:15840
WP No. 100572 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 14TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO.100572 OF 2024 (GM-CPC)
BETWEEN:
1. SRI. MAHADEVAPPA S/O MALLESHAPPA GADAG,
AGE. 63 YEARS, OCC. AGRICULTURE WORK,
R/O. BARDUR, TQ. MUNDARAGI,
DIST. GADAG, PIN-582 113.
2. SRI. SURESH S/O MALLESHAPPA GADAG,
AGE. 49 YEARS, OCC. AGRICULTURE WORK,
R/O. BARDUR, TQ. MUNDARAGI,
DIST. GADAG, PIN-582 113.
... PETITIONERS
(BY SRI. SHARNAPPA S. KOLIWAD, ADVOCATE)
AND:
LATE BASANAGOUD
S/O SHANKARGOUDA HIREGOUDRA,
Digitally signed by
SINCE DIED HIS LR'S.,
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
1. SMT. SHIVAMMA
COURT OF
KARNATAKA
W/O BASANAGOUD HIREGOUDRA,
DHARWAD BENCH
Date: 2025.11.19
AGE. 78 YEARS, OCC. HOUSEHOLD WORK,
12:20:51 +0530 R/O. BARDUR, TQ. MUNDARAGI,
DIST. GADAG, PIN-582 113.
2. SRI. PRVATHGOUDA
S/O BASANAGOUD HIREGOUDRA,
AGE. 56 YEARS, OCC. MEDICAL PROFESSION,
R/O. VIVEKHAND NAGAR, MUNDARAGI,
TQ. MUNDARAGI, DIST. GADAG,
PIN-582 113.
3. SMT. AKKAMAHADEVI @ PUSHAPA
W/O BASAVARAJ DUNDAPPANAVAR,
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NC: 2025:KHC-D:15840
WP No. 100572 of 2024
HC-KAR
AGE. 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. KADADI VILLAGE, TQ. GADAG,
DIST. GADAG, PIN-582 113.
4. SRI. KENCHANAGOUDA
S/O BASANAGOUD HIREGOUDRA,
AGE. 53 YEARS, OCC. AGRICULTURE WORK,
R/O. BARDUR, TQ. MUNDARAGI,
DIST. GADAG, PIN-582 113.
5. SRI. SHANKARAGOUDA
S/O BASANAGOUD HIREGOUDRA,
AGE. 53 YEARS, OCC. AGRICULTURE WORK,
R/O. BARDUR, TQ. MUNDARAGI,
DIST. GADAG, PIN-582 113.
6. SRI. BARMAGOUDA
S/O GURUNAGOUDA HIREGOUDRA,
AGE. 43 YEARS, OCC. AGRICULTURE WORK,
R/O. BARDUR, TQ. MUNDARAGI,
DIST. GADAG, PIN-582 113.
7. SRI. SHANKARAGOUDA
S/O GURUNAGOUDA HIREGOUDRA,
AGE. 48 YEARS, OCC. AGRICULTURE WORK,
R/O. BARDUR, TQ. MUNDARAGI,
DIST. GADAG, PIN-582 113.
8. SRI. UMESHGOUDA
S/O BASANAGOUD HIREGOUDRA,
AGE. 48 YEARS, OCC. ADVOCATE,
R/O. BARDUR, TQ. MUNDARAGI,
DIST. GADAG, PIN-582 113.
9. SRI. ISHWARGOUDA
S/O BASANAGOUD HIREGOUDRA,
AGE. 38 YEARS, OCC. AGRICULTURE WORK,
R/O. BARDUR, TQ. MUNDARAGI,
DIST. GADAG, PIN-582 113.
... RESPONDENTS
(BY SRI. S.M. KALWAD, ADVOCATE FOR R1, R2, R4, R5, R8 AND R9;
V/O/DATED 12.03.2024, NOTICE TO R3 IS DISPENSED WITH;
NOTICE TO R6 AND R7 ARE SERVED)
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NC: 2025:KHC-D:15840
WP No. 100572 of 2024
HC-KAR
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI
TO QUASH THE IMPUGNED ORDER PASSED BY IN THE COURT OF
CIVIL JUDGE AND JMFC COURT MUNDARAGI, IN O.S. NO.45/2019 ON
I.A. NO.13 DATED 13-12-2023 VIDE ANNEXURE-K, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR BEING SPOKEN TO, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) This petition is filed under Article 227 of the Constitution of India by the petitioners assailing the order dated 13.12.2023 passed on I.A.No.XIII in O.S.No.45/2019 on the file of Civil Judge, Mundaragi1.
2. The Trial Court rejected the petitioners' application for appointment of a Commissioner to measure the property. The plaintiffs claim that the suit was filed to recover the portion of the property allegedly encroached upon by the defendants. The plaintiffs had filed an application for appointment of Court Commissioner before the recording of evidence, which was rejected with liberty to file a fresh application at a later stage. After completion of 1 Hereinafter referred to as the 'Trial Court' -4- NC: 2025:KHC-D:15840 WP No. 100572 of 2024 HC-KAR the evidence, plaintiffs filed one more application, which was again rejected. Being aggrieved by the said order, the petitioners are before this Court impugning the said order.
3. Learned counsel for the petitioners submits that the application was rejected on the premise that, in his evidence, the petitioners admitted that the property had been surveyed earlier in the year 2017, and no encroachment was noticed in the said survey. It is the contention of the learned counsel for the petitioners that the encroachment occurred subsequent to the 2017 survey. From the affidavit filed along with the application seeking appointment of Court Commissioner, it is noticed that the plaintiffs has stated on 12.03.2018, the fence and boundary stones were removed and defendants thereafter encroached upon the property.
4. Learned counsel for the respondents would submit that the survey report of the year 2017, does not indicate any encroachment, as such, there is no need to appoint a -5- NC: 2025:KHC-D:15840 WP No. 100572 of 2024 HC-KAR Court Commissioner to consider the plea relating to encroachment. It is his further submission that the plaintiffs have suppressed the survey report of the year 2017, as such, he is not entitled to any interim relief.
5. It is to be noticed that the Trial Court has also rejected the application for appointment of a Court Commissioner on the premise that the 2017 survey report, does not indicate any encroachment. It is to be noticed that in the application seeking appointment of Court Commissioner, the plaintiffs have alleged that in the year 2018, portion of their property is encroached. This contention is disputed by the defendants. Under these circumstances, the appointment of Court Commissioner would be appropriate.
6. Under these circumstances, this Court is of the view that appointment of a Survey Commissioner would throw light on the controversy. It appears that the judgment of this Court in Shadaksharappa S/o Veranna -6- NC: 2025:KHC-D:15840 WP No. 100572 of 2024 HC-KAR and Another Vs. Vijayalakshmi and Others2, was not brought to the notice of the Trial Court.
7. Hence, the following:
ORDER i. The writ petition is allowed. ii. The order dated 13.12.2023 passed on I.A.No.XIII in O.S.No.45/2019 on the file of Civil Judge, Mundaragi, is set aside.
iii. The Trial Court shall appoint a Court
Commissioner to measure the suit
property.
iv. The Court shall issue appropriate
guidelines and fix the dates as prescribed in the judgment of Shadaksharappa (supra).
2
W.P.No.201274/2022 decided on 24.01.2023 -7- NC: 2025:KHC-D:15840 WP No. 100572 of 2024 HC-KAR v. Both parties are at liberty to give memo of instructions to the Court Commissioner.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE PMP Para 4 & 5-AM CT:BCK LIST NO.: 1 SL NO.: 1