[Cites 5, Cited by 0]
Karnataka High Court
Smt Kempamma vs Sri. Swamy Alias Doreswamy on 8 April, 2026
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NC: 2026:KHC:19434
W.P. No.14655/2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.14655/2021 (GM-CPC)
BETWEEN:
SMT. KEMPAMMA
W/O LATE VEERAIAH @ ERAIAH
AGE 62 YEARS
R/O. DEVIRAMMANAHALLI VILLAGE
KASABA HOBLI, NANJANAGUD TALUK
Digitally signed by MYSORE DIST.
ARSHIFA BAHAR
KHANAM ...PETITIONER
Location: HIGH (BY SRI. CHINMAY KURANDWAD, ADV., FOR
COURT OF
KARNATAKA SRI. R.C. NAGARAJ, ADV.,)
AND:
SRI. SWAMY ALIAS DORESWAMY
S/O KULLAPPA
AGED 67 YEARS
R/O DEVIRAMANAHALLI VILLAGE
KASABA HOBLI, NANJANAGUD TALUK
MYSORE DISTRICT.
...RESPONDENT
(V.C.O. DTD:04.10.2021, SERVICE OF NOTICE TO
RESPONDENT IS H/S AND PLACED EXPARTE)
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 22.07.2021 PASSED BY THE 1ST
ADDITIONAL CIVIL JUDGE AND JMFC, NANJANGUD ON
I.A.NO.4 IN O.S.NO.710/2014 PRODUCED AT ANNEXURE-A AS
ILLEGAL & ETC.
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NC: 2026:KHC:19434
W.P. No.14655/2021
HC-KAR
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 challenging the order dated
22.07.2021 passed on IA.No.4 in OS.No.710/2014 by the I
Additional Civil Judge and JMFC, Nanjangud (for short 'the
trial Court').
2. Heard Sri.Chinmay Kurandwad, learned counsel
for Sri.Nagaraj R.C., learned counsel appearing for the
petitioner and meticulously perused the material available on
record.
3. Despite service of notice, the respondent
remained absent.
4. The petitioner/plaintiff filed OS.No.710/2014
seeking a declaration that she is the absolute owner of the
schedule 'B' property, along with the consequential relief of
possession. In the said suit, during the course of trial, the
NC: 2026:KHC:19434
HC-KAR
GPA holder one Smt.Mahadevamma filed an application
under Order XXVI Rule 9 read with Section 151 of the Code
of Civil Procedure, 1908 (for short 'CPC') seeking the
appointment of a Civil Engineer as Court Commissioner to
measure the suit schedule property and to trace out the
encroached portion of the schedule 'B' property by the
defendant. The said application was dismissed by the trial
Court mainly on the ground that the description of the
schedule 'B' property in the plaint was specific with regard to
its measurement and boundaries (check bandi), and that the
defendant had objected that the 'B' schedule property is
owned by them. The trial Court also recorded a finding that
until the plaintiff proves her ownership, the application could
not be entertained. It is to be noticed that the
petitioner/plaintiff has approached before the trial Court with
a specific prayer seeking declaration of ownership over the
schedule 'B' property as well as possession, alleging that the
defendant has encroached upon the said property, which
forms the part of schedule 'A' property.
NC: 2026:KHC:19434
HC-KAR
5. The factum of encroachment is required to be
ascertained by physical inspection by a Court Commissioner.
Hence, in my considered view, the trial Court has committed
a grave error in rejecting the application on the ground that
the measurement and description of the 'B' schedule
property is clear and that the plaintiff must first prove her
ownership. While it is not in dispute that the burden is on the
plaintiff to prove the ownership of the 'B' schedule property
during the course of trial. However, that same cannot be a
ground to reject the application for appointment of a Court
Commissioner particularly when the plaintiff is asserting that
the defendant has encroached the 'B' schedule property. The
said encroachment is required to be established by the
plaintiff by way of pleading, by adducing oral and
documentary evidence and in addition she is also entitled to
seek the appointment of Court Commissioner to find out the
encroachment. However, it is also to be noticed that the
application for appointment of a Court Commissioner was
filed at an initial stage of the trial.
NC: 2026:KHC:19434
HC-KAR
6. In the circumstances, it would be appropriate to
permit the petitioner to press the application in IA.No.4 after
the conclusion of the trial and the trial Court shall consider
the said application, if need arises, based on the evidence
available on record. Accordingly, the writ petition is allowed.
With the above liberty and observations, the impugned order
dated 22.07.2021 passed on IA.No.4 in OS.No.710/2014 by
the I Additional Civil Judge and JMFC, Nanjangud is hereby
set aside and consequently, IA.No.4 stands restored. The
trial Court shall consider IA.No.4 after the conclusion of the
trial, keeping in mind law laid down by this Court in the case
of Shadaksharappa v. Kumari Vijayalaxmi and Others1
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
ABK
List No.: 1 Sl No.: 19
WP.No.201274/2022 dated 24.01.2023
