Karnataka High Court
Sri. Barakulla Hussaini vs Smt. G Sudha on 23 June, 2025
-1-
NC: 2025:KHC:21782
W.P. No.26863/2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.26863/2019 (GM-CPC)
BETWEEN:
1. SRI. BARAKULLA HUSSAINI
S/O LATE SYED MAHABOOB HAVI
AGED ABOUT 53 YEARS
RESIDING AT MARGAL VILLAGE
CHIKKA ANKANDAHALLI POST
BANGARPET TALUK
Digitally signed KOLAR DISTRICT-563 114.
by RUPA V
2. SMT. SHEEDA BEGUM
Location: High D/O LATE SYED MAHABOOB HAVI
Court of AGED ABOUT 48 YEARS
karnataka RESIDING AT BEHIND
GULPET POLICE STATION
C.B. PUR ROAD, KOLAR CITY-563101.
3. SRI. SHABBIR HUSSAIN
S/O LATE SYED MAHABOOB HAVI
AGED ABOUT 45 YEARS
RESIDING AT MARGAL VILLAGE
CHIKKA ANKANDAHALLI POST
BANGARPET TALUK
KOLAR DISTRICT-563 114.
4. SMT. FAREEDA BEGUM
D/O LATE SYED MAHABOOB HAVI
AGED ABOUT 42 YEARS
RESIDING AT BEHIND REDDY CHOULTRY
MALUR TOWN, KOLAR DISTRICT.
5. SRI. MANZOOR HUSSAIN
S/O LATE SYED MAHABOOB HAVI
AGED ABOUT 39 YEARS
RESIDING AT MARGAL VILLAGE
CHIKKA ANKANDAHALLI POST
-2-
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W.P. No.26863/2019
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BANGARPET TALUK
KOLAR DISTRICT-563 114.
...PETITIONERS
(BY SRI. S. VISWESWARAIAH, ADV.,)
AND:
1. SMT. G. SUDHA
W/O T.S. GURURAJ RAO
AGED ABOUT 52 YEARS.
2. SMT. G. SUMA
D/O T.S. GURURAJA RAO
AGED ABOUT 32 YEARS.
3. SMT. G. MALATHI
D/O T.S. GURURAJA RAO
AGED ABOUT 29 YEARS
DECEASED REP. BY LR'S.
3(a) SRI. M.B. RAJENDRA
S/O H.V. BHEEMASENACHAR
AGED ABOUT 52 YEARS.
3(b) KUM. M.R. VAISHNAVI
D/O M.B. RAJENDRA
AGED ABOUT 19 YEARS.
3(c) KUM. M.R. HARSHINI
D/O M.B. RAJENDRA
AGED ABOUT 17 YEARS
SINCE MINOR
REP. BY HER NATURAL GUARDIAN/
FATHER SRI. M.B. RAJENDRA.
[AMENDED AS PER THE ORDER OF
THE HON'BLE COURT DTD:27.03.2024].
4. SMT. G. BHARATHI
D/O T.S. GURURAJA RAO
AGED ABOUT 23 YEARS.
5. SMT. G. SAVITHA
D/O T.S. GURURAJA RAO
-3-
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W.P. No.26863/2019
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AGED ABOUT 20 YEARS.
ALL ARE R/AT. EBBELLA VILLAGE
KASABA HOBLI
MYSORE TALUK & DIST-570004.
6. THE TAHSILDAR
BANGARPET TALUK
BANGARPET
KOLAR DISTRICT-563 114.
...RESPONDENTS
(BY SRI. C. SHANKAR REDDY, ADV., FOR R1, R2, R4 & R5 & ALSO
FOR R3 (a - c))
---
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI/ANY OTHER WRIT/DIRECTION FOR QUASHING/SETTING
ASIDE THE IMPUGNED ORDER PASED BY PRL. CIVIL JUDGE AND
J.M.F.C., BANGARPET, IN O.S.NO.151/2006 PASSED ON I.A.NO.18
DATED 13.06.2019 PRODUCED AT ANNEXURE-A BY ALLOWING THE
WRIT PETITION & ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed seeking for the following relief:
"Issue a writ of certiorari/any other writ/direction for
quashing/setting aside the impugned order passed by
Prl. Civil Judge and JMFC, Bangarpet, in
O.S.No.151/2006 passed on I.A.No.18 dated
13.06.2019 produced at Annexure-A by allowing the
writ petition."
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2. Heard.
3. Sri.S.Visweswaraiah, learned counsel for the
petitioners submits that the petitioners have filed
O.S.No.151/2006 seeking the relief of specific performance and
consequential prayer for permanent injunction against the
respondents herein. It is submitted that the husband of the
respondent No.1 and the father of the respondent Nos.2 to 5
executed the agreement of sale dated 17.11.1974 and pursuant
to the said agreement, the petitioners are in possession of the
suit schedule property. It is further submitted that after
conclusion of the trial, the petitioners have filed an application
under Order XXVI Rule 9 read with Section 151 of the Code of
Civil Procedure, 1908, seeking to appoint the Taluk Surveyor or
an Advocate as the Court Commissioner to inspect the suit
schedule property to find out the actual state of affairs with
regard to suit schedule property and also with regard to the
possession. He takes the Court to the averments made in
paragraphs 2 and 3 of the affidavit supporting the application.
It is also submitted that the Trial Court, without appreciating
the same, proceeded to reject the application only on the
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ground that sufficient evidence is available to decide the suit.
He seeks to allow the petition.
4. Per contra, learned counsel for the respondent
Nos.1 to 5 supports the impugned judgment and submits that
the suit is filed in the year 2006 seeking to enforce the
agreement of sale dated 17.11.1974. It has been clearly
denied by the contesting respondents that there is no
agreement of sale executed by Sri.T.S.Gururaj Rao and they
have disputed the signature including the handing over of
possession. It is submitted that the petitioners are required to
prove the execution of agreement of sale and if they are able to
prove the same, automatically the consequences of possession
which is found in the alleged agreement would follow. Hence,
seeking appointment of the Court Commissioner to find out the
actual state of affairs and possession would not arise. It is
further submitted that the petitioners want to create alternative
prayer in the suit for adverse possession by collecting evidence
by appointing the Court Commissioner which is impermissible in
law. Hence, he seeks to dismiss the petition.
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5. I have heard the learned counsel for the petitioners,
learned counsel for the respondents and perused the material
available on record. I have given my anxious consideration to
the submissions made on both sides.
6. An application under Order XXVI Rule 9 read with
Section 151 of the CPC came to be filed by the petitioners. The
said application was accompanied by an affidavit of the
petitioners-plaintiffs. In the said affidavit, an averment is
made that Sri.T.S.Gururaj Rao executed the agreement of sale
dated 17.11.1974 in favour of the petitioners and he has
delivered the possession of the suit schedule property to them.
It is also averred that the petitioners are the owners of
adjacent land measuring 5 acres and both the suit schedule
property and their land are adjacent to each other and they are
in possession of both the lands and have improved the said
lands. In other words, they intend to say that they have
improved the suit schedule property as well as 5 acres of land
owned by them and they have put up stone slab pillars around
the suit schedule property and the entire 10 acres of land is
one plot and are co-jointly cultivated by the petitioners. They
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are seeking the Court to find out the present state of affairs
with regard to the said plot which includes the suit schedule
property and also 5 acres of land owned by the petitioners. In
my considered view, the attempt of the petitioners is to
establish possession over the suit schedule property by way of
seeking appointment of the Court Commissioner. Ultimately,
the petitioners are required to first prove the agreement of sale
dated 17.11.1974 and if the agreement is proved,
automatically the recital under the agreement which speaks
with regard to the possession also follows. Hence, I am of the
considered view that the attempt of the petitioners by way of
seeking appointment of the Court Commissioner is nothing but
to prove their possession over the suit schedule property by
collecting evidence, which may not be the object of Order XXVI
Rule 9 of the CPC. In view of the specific assertion of the
respondents that the petitioners are not in possession of the
suit schedule property and the execution of the agreement of
sale dated 17.11.1974 is forged and created one, it is
impermissible for the petitioners to seek appointment of the
Court Commissioner to prove their possession. The Trial Court,
at paragraph 8 has recorded a clear finding that there is
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sufficient evidence on record to proceed with the matter and to
answer the issues involved in the case. I am of the considered
view that when the Trial Court has come to the conclusion that
sufficient evidence is available on record to answer the issues
involved in the case, it would not be appropriate for the
petitioners to seek appointment of the Court Commissioner in
the nature of the case on hand and material on record. Hence,
I am of the considered view that the Trial Court was fully
justified in rejecting the application seeking appointment of the
Court Commissioner. I do not find any error in the order passed
by the Trial Court calling for interference in this petition.
7. For the aforementioned reasons, I proceed to pass
the following:
ORDER
The petition is devoid of merits and the same is
accordingly dismissed.
It is made clear that the observations made in this
petition shall not come in the way of the Trial Court deciding
the suit on its merits.
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The Trial court shall make note of the fact that the suit is
of the year 2006 and shall make an effort to dispose of the
same as early as possible.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
