Karnataka High Court
Sri. Mahadevappa S/O Malleshappa Gadag vs Late Basanagoud S/O Shankargouda ... on 14 November, 2025
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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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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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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
Hereinafter referred to as the 'Trial Court'
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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
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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
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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).
W.P.No.201274/2022 decided on 24.01.2023
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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
