Karnataka High Court
Sri. Uday Kumar vs Sri. Vijay Kumar on 6 June, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2025:KHC:19125
WP No. 15426 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 15426 OF 2025 (GM-CPC)
BETWEEN:
1. SRI. UDAY KUMAR
S/O DUGGEGOWDA.
AGED ABOUT 51 YEARS.
R/AT: NEEKANAHALLI DAKALLE
DEVALADAKERE VILLAGE AND POST,
HANUBALU HOBLI,
SAKALESHPURA TALUK,
HASSAN DISTRICT - 577001.
...PETITIONER
(BY SRI. G.V. NARASIMHA MURTHY, ADVOCATE)
AND:
Digitally signed
by NAGAVENI
Location: High 1. SRI. VIJAY KUMAR
Court of S/O LATE BUKKEGOWDA,
Karnataka
AGED ABOUT 62 YEARS,
NEEKANALLI DAKALLE
DEVALADAKERE VILLAGE AND POST,
HANUBALU HOBLI,
SAKALESHPURA TALUK.
HASSAN DISTRICT-577001.
...RESPONDENT
-2-
NC: 2025:KHC:19125
WP No. 15426 of 2025
HC-KAR
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO A. TO SET ASIDE THE
ORDER DATED.17/04/2025 ON I.A.NO.VIII IN O.S.NO.35/2021
PENDING ON FILE OF THE HONBLE SENIOR CIVIL AND JMFC AT
SAKALESHPURA, HASSAN DISTRICT AT ANNEXURE-D AND
PLEASED TO ALLOW THE I.A.NO.VIII AS PRAYED AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner-plaintiff is before this Court calling in
question an order dated 17.04.2025, by which, the concerned
Court in O.S.No.35/2021, rejects an application filed by the
petitioner-plaintiff under Order XXVI Rule 9 read with
Section 151 of the C.P.C., seeking appointment of a
Court Commissioner to identify the suit schedule property.
2. Heard Sri. G.V. Narasimha Murthy, learned counsel
appearing for the petitioners and have perused the material on
record.
3. Facts adumbrated are as follows:-
The petitioner is the plaintiff, who claims to be the
absolute owner of the suit schedule property and has perfected
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his title by way of adverse possession since he has been in
possession from 11.07.1977. A suit comes to be filed
as aforesaid against the defendant, seeking the following relief:
"A. The plaintiff prays for judgment and decree against
the defendants & in his favor, declared as the
owner in possession over the schedule property by
way of adverse possession as he is in actual
possession against the true owner and his title, has
been perfected by way of adverse possession over
the schedule property.
B. Injunction restraining the defendant, or his men, or
their subordinate or, his contractors, or any other
persons not to dismantle the house or not to
indulge with suit property in any manner or
whatsoever alienate the suit property."
4. In the proceedings, the petitioner-plaintiff files an
application seeking appointment of a Court commissioner by an
application filed under Order XXVI Rule 9 read with
Section 151 of the CPC. The concerned Court, in terms of
its order as aforesaid, rejects the application of the plaintiff on
two grounds; one that the suit is at the stage of arguments and
there is no confusion with regard to the identification of the
property. The concerned Court also notices that the earlier suit
with regard to the land in O.S.No.93/1982 was disposed on the
basis of a report of a Commissioner that was the suit of third
party and that cannot be relied on in the subject suit again
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to demand that Survey No.136/2, which measures about
4 acres in 14.8 guntas would again become the subject matter
of a report by the Commissioner. The concerned Court answers
the same as follows:
"10. The suit is at the stage of arguments. At this
stage the present application is filed by the plaintiff to
appoint ADLR as a Court Commissioner for local
inspection of the suit schedule property and to submit the
report. The said application is objected by the defendant
on the ground that the plaintiff has constructed house and
shed in the suit schedule property with his permission. It
is to be seen that the plaintiff has filed the suit for
declaration to declare that he is the absolute owner of the
suit schedule property by way of adverse possession. It is
not in dispute that the land in Sy.No. 136/2 is totally
measuring 4 acres 14.8 gutnas. As per the plaint schedule
the plaintiff said to have constructed house, firewood
shed, godown, well and drying yard in the suit schedule
property is said to be situated in a land measuring 3½
guntas of land in Sy.No.136/2. According to the plaintiff
he has perfected his title over the suit schedule property
by way of adverse possession. According to the defendant
the said land belongs to him and he is an absolute owner
as the same is constructed with his permission. Whether
the plaintiff has perfected his title over the suit schedule
property by way of adverse possession or not as
contended by the plaintiff and whether it is the exclusive
property of the defendant is a matter to be adjudicated
after trial. As contended by the defendant when he is not
denying the construction of house and shed as mentioned
in the suit schedule property, the question of appointing
the ADLR, Sakaleshpura as a Court Commissioner to
inspect and know the actual facts of the structure of the
suit schedule property does not arise. Hence for the
above said reasons this court held that the plaintiff has
not made out any reasonable grounds for appointing
ADLR as a Court Commissioner and to submit the report.
Hence for the above said reasons this court answered
point No.1 in the Negative.
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POINT No.2:
11. In view of the above reasons, this court
proceed to pass the following:
ORDER
I.A.No.VII filed by the plaintiff U/O XXVI Rule
9 R/W Section 151 of CPC is hereby dismissed."
5. In the light of the Court not entertaining any doubt
about the existence of the property in Survey No.136/2 with
regard to 3 1/2 of guntas of land, where the plaintiff is said to
have constructed a shed and that being not denied by the
defendant, there was no warrant for the concerned Court
to appoint a Commissioner, as sought for, by the petitioner.
6. The order does not suffer from any such perversity,
which would entail entertainment of the petition
under Article 227 of the Constitution of India. In that light,
the petition stands rejected.
Sd/-
(M.NAGAPRASANNA)
JUDGE
SJK
