Karnataka High Court
Sri Hanumappa vs Sri Kempaiah on 29 October, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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WP No. 14548 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 14548 OF 2019 (GM-CPC)
BETWEEN:
SRI HANUMAPPA
S/O LATE VENKATASHAMI
AGED ABOUT 62 YEARS
AGRICULTURIST, R/AT
THIMMANAYAKANAHALLI VILLAGE
KASABA HOBLI
MALUR TALUK - 563 130.
REPRESENTED BY GPA HOLDER
SRI SRIRAMAPPA
S/O HANUMAPPA
AGED ABOUT 35 YEARS
R/AT THIMMANAYAKANAHALLI
VILLAGE, KASABA HOBLI
MALUR TALUK - 563 130.
...PETITIONER
Digitally
signed by (BY SRI PRASHANTH P.N, ADV.)
NANDINI M S
Location: AND:
HIGH COURT
OF
KARNATAKA SRI KEMPAIAH
S/O MUNISHAMAPPA
AGED ABOUT 75 YEARS
R/AT THIMMANAYAKANAHLLI
VILLAGE, KASABA HOBLI
MALUR TALUK - 563 130.
...RESPONDENT
(BY SRI Y. NAGARAJ, ADV., FOR
SRI C. SHANKAR REDDY, ADV.,)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
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WP No. 14548 of 2019
HC-KAR
ORDER DTD23.1.2019 PASSED BY THE HON'BLE II ADDL CIVIL
JUDGE AND JMFC, MALUR IN IA IN EX.NO.52/2014 FILLED UNDER
ORDER XXVI RULE 9 REAS WITH SECTION 151 OF CIVIL PROCEDURE
CODE REJECTING THE PRAYER OF PETITIONER/DHR SEEKING FOR
AN APPOINTMENT OF COURT COMMISSIONER i.e. TALUK SURVEYOR,
MALUR TALUK, MALUR TO DEMARCATE WITH MESURMENTS OF SUIT
SCHEDULE PROPERTY AND TO PREPARE A SKETCH AS PER THE
DESCRIPTION OF THE PROPERTY AND ALSO NOTE DOWN THE
MEASUREMENT OF ENCROACHMENT IF ANY MADE BY THE JUDGMENT
DEBTOR AND TO SUBMIT A REPORT WITH TOPOGRAPHY OF THE
ENTIRE AREA WITH SKETCH BY ISSUING WRIT OF CERTIORARI AS
THE IMPUGNED ORDER BEING PERVERSE, CAPRICIOUS, ARBITRARY
AND BIASED FOR BEING PASSED WITHOUT PORPER JUDICIAL
REASONING VIDE ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B
GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. This writ petition under Article 227 of the Constitution of
India is filed by the decree holder with the prayer to set aside
the order dated 23.01.2019 passed on an application filed
under Order XXVI Rule 9 read with Section 151 of CPC in
Execution No.52/2014, passed by the Court of II Addl. Civil
Judge & JMFC, Malur.
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2. Heard the learned Counsel by the parties.
3. Petitioner herein had filed O.S.No.254/2009 before the
jurisdictional Civil Court seeking a decree of permanent
injunction in respect of property bearing Sy.No.25 measuring 1
acre 35 guntas situated at Kasaba Hobli, Gaddamsonnahalli
Village, Malur Taluk. The said suit was decreed on 06.10.2012.
Alleging violation of the decree of permanent injunction passed
in O.S.No.254/2009 decree holder has filed Execution
No.52/2014 before the Trial Court and in the said proceedings,
an application under Order XXVI Rule 9 read with Section 151
of CPC was filed to appoint the Taluk Surveyor as Court
Commissioner to measure and demarcate the suit schedule
property and to prepare a sketch. The said application was
opposed by the judgment-debtor, and the Trial Court vide the
order impugned, has rejected the application and being
aggrieved by the same, decree holder is before this Court.
4. Learned Counsel for the petitioner submits that the
judgment and decree passed in O.S.No.254/2009 has attained
finality. Towards the eastern side of the suit schedule property
in O.S.No.254/2009, the property belonging to the
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defendant/judgment-debtor in Sy.No.29 measuring 2 acres 6
guntas is situated. In respect of the said property, a separate
suit was filed in O.S.No.409/2009 by the defendant and even
the said suit has been decreed and a permanent injunction has
been granted in respect of the property bearing Sy.No.29 in
favour of the plaintiffs in O.S.No.409/2009. He submits that the
judgment debtor in O.S.No.254/2009 is plaintiff no.1 in
O.S.No.409/2009. He has encroached a portion of the property
in Sy.No.25 and it is under these circumstances, execution case
was filed. He submits that to find out the encroachment, the
appointment of Court Commissioner becomes necessary.
Accordingly, he prays to allow the petition.
5. Per contra, learned Counsel for the respondent has
argued in support of the order impugned. He submits that the
allegation made in the execution case has to be independently
proved by leading evidence and petitioner cannot be permitted
to collect evidence by way of Commissioner's report. He
accordingly prays to dismiss the petition.
6. Undisputed facts of the case are, petitioner herein has
filed O.S.No.254/2009 seeking permanent injunction against
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the respondent herein in respect of the property bearing
Sy.No.25 measuring 1 acre 35 guntas situated in
Gaddamsonnahalli Village and the said suit has been decreed
on 06.10.2012. Allegation against the judgment debtor in
O.S.No.254/2009 is that, after the decree was passed in
O.S.No.254/2009, in the year 2014, the judgment-debtor has
encroached a portion of the suit schedule property in
O.S.No.254/2009 and thereby has violated the decree of
permanent injunction in O.S.No.254/2009.
7. In normal circumstances, when there is an allegation of
encroachment and if such an allegation cannot be adjudicated
based on oral and documentary evidence, the Courts should
appoint a Court Commission for the purpose of inspection of
the property and survey and the report submitted by the Court
Commissioner would definitely assist the court to properly
adjudicate the dispute between the parties. In every case, an
application filed under Order XXVI Rule 9 read cannot be said
to be filed for the purpose of collecting evidence.
8. In the case on hand, undoubtedly there is a decree of
permanent injunction in favour of the petitioner herein and the
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said decree is passed on 06.10.2012. Therefore, the
presumption is that he was in possession of the suit schedule
property in O.S.No.254/2009 as on the date of passing the
decree in the said suit. Now the decree holder has made an
allegation that subsequent to the decree, the judgment- debtor
has encroached a portion of the suit schedule property in
O.S.No.254/2009, and thereby he has violated the decree
passed in O.S.No.254/2009.
9. The material on record would go to show that the
properties bearing Sy.Nos.25 & 29 are situated adjacent to
each other and the same is separated by a ridge. Therefore, it
becomes necessary that a Court Commissioner is required to be
appointed for the purpose of finding out the true and correct
facts, more so when an allegation is made about encroaching
the property in respect of which a decree is passed in favour of
a party. The Trial Court, therefore, was not justified in rejecting
the prayer made in the application. Accordingly the following
order:
10. The writ petition is allowed. The impugned order dated
23.01.2019 passed on an application filed under Order XXVI
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Rule 9 read with Section 151 of CPC in Execution No.52/2014
by the Court of II Addl. Civil Judge & JMFC, Malur, is set aside.
Consequenty, prayer made in the application stands allowed.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
KK
