[Cites 2, Cited by 0]
Karnataka High Court
Sri. Veerappa vs Sri. Shaamu on 9 April, 2026
-1-
NC: 2026:KHC:19828
W.P. No.17608/2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.17608/2021 (GM-CPC)
BETWEEN:
SRI. VEERAPPA
SINCE DECEASED BY LRS.
1. SMT. DAKSHAYANI
AGED 64 YEARS
Digitally signed W/O LATE SRI. VEERAPPA.
by ARSHIFA
BAHAR KHANAM 2. SRI. MANJUNATH @ MANU
Location: HIGH AGED 46 YEARS
COURT OF S/O LATE SRI. VEERAPPA.
KARNATAKA
BOTH ARE R/AT ¼
OPP GOVERNMENT HOSPITAL
K N PURA EXTENSION
KYATHAMARANAHALLI
NAZARBAD MOHALLA
MYSORE - 570 019.
...PETITIONERS
(BY SRI. SUBHASH SRINIVASA RANGACHAR, ADV.,)
AND:
SRI. SHAAMU
AGED 73 YEARS
S/O LATE SRI PANDIT KERPANNA
R/AT 1/6, OPP GOVERNMENT HOSPITAL
KYATHAMARNAHALLI
K N PURA EXTENSION
-2-
NC: 2026:KHC:19828
W.P. No.17608/2021
HC-KAR
NAZARBAD MOHALLA
MYSORE - 570 019.
...RESPONDENT
(BY SRI. Y.V. PRAKASH, ADV., FOR
SRI. Y.K. NARAYANA SHARMA, ADV.,)
---
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
ORDERS DTD 16.08.2021 PASSED ON I.A.NO.6 APPOINTING A
COURT COMMISSIONER IN O.S.NO.374/2014 ON THE FILE OF
V ADDL. CIVIL JUDGE AND JMFC AT MYSORE, VIDE ANNX-F,
CONSEQUENTLY DISMISS I.A.NO.6 & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
08.04.2026, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV JUDGMENT
This petition is filed challenging the order dated
16.08.2021 passed on I.A.No.VI in O.S.No.374/2014 by
the V Additional Civil Judge and JMFC, Mysuru (hereinafter
referred to as 'the Trial Court').
2. Sri.Subhash Srinivasa Rangachar, learned
counsel for the petitioners submits that the Trial Court has
allowed the application of the plaintiff for appointment of
the Court Commissioner without appreciating the dispute
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HC-KAR
between the parties in its proper perspective. It is
submitted that the respondent-plaintiff has asserted that
the petitioners-defendants have encroached and put up
the construction in Schedule 'B' property which has been
denied by the defendants in their written statement by
specifically stating that the Schedule 'B' property was
purchased by the defendants vide registered sale deed
dated 14.10.1992 and in the year 1992-93, the
construction was put up by leaving set back. However,
the Trial Court proceeded to allow the application for
appointment of the Court Commissioner to find out
whether the defendants have put up the construction in
the Schedule 'B' property by encroachment. It is further
submitted that the plaintiff himself has admitted in his
cross-examination that there is a sajja on the western side
of the Schedule 'B' property of the defendants and further
admitted the construction of house on Schedule 'A'
property about 21 feet. The said finding of the Trial Court
clearly demonstrates that the defendants have put up the
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construction within Schedule 'B' property which is owned
by them and there is no encroachment. It is also
submitted that the plaintiff purchased the suit schedule
property in the year 1996 and the suit is filed in the year
2014 alleging that the window is erected on the western
side of the Schedule 'B' property and seeking permanent
injunction against the defendants to not put up any further
construction in the Schedule 'B' property without leaving
set back of 1 meter and such a suit is not maintainable
without seeking the relief of declaration. Hence, he seeks
to allow the writ petition by setting aside the impugned
order.
3. Per contra, Sri.Y.V.Prakash, learned counsel
appearing for Sri.Y.V.Narayana Sharma, learned counsel
for the respondent supports the impugned order of the
Trial Court and submits that it is the case of the plaintiff
that the defendants, without leaving set back have put up
construction in the Schedule 'B' property creating right
over the Schedule 'A' property by way of easement and to
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ascertain whether there is set back or not, the
appointment of the Court Commissioner is necessary.
Hence, he seeks to dismiss the writ petition.
4. I have heard the learned counsel for the
petitioners, learned counsel for the respondent and
meticulously perused the material on record. I have given
my anxious consideration to the submissions advanced on
both the sides.
5. The respondent herein filed O.S.No.374/2014
for the relief of mandatory injunction against the
defendants to remove the illegally erected windows and
ventilators put up on the western side of the Schedule 'B'
property, opening out to the Schedule 'A' property and the
relief of permanent injunction against the defendants from
making any further construction in 1 meter width towards
the Schedule 'B' property, by leaving the same as the set
back area. The defendants filed a detailed written
statement denying the assertions made in the plaint. The
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written statement indicates that the defendants purchased
the Schedule 'B' property in the year 1992 and they put up
construction of a RCC house in the ground floor by leaving
set back towards the western side of the property and the
plaintiff has put up illegal construction 3 years back
without leaving any set back to his property. With these
pleadings, the evidence was recorded by the Trial Court.
6. The plaintiff filed an application in I.A.No.VI
under Order XVI Rule 9 of the Code of Civil Procedure,
1908, seeking to appointment of the Court Commissioner
for inspection of the plaint schedule properties and report
regarding the construction made by the defendants in the
Schedule 'B' property. The said application was allowed
under the impugned order.
7. It is the specific case of the plaintiff that
Schedule 'A' property is owned by the plaintiff and
Schedule 'B' property by the defendants and the
defendants, without leaving set back towards the western
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wall of the Schedule 'B' property, have put up the
construction and the western wall itself is a dividing line
between Schedule 'A' and 'B' properties. It is further case
of the plaintiff that the defendants have no right of
whatsoever nature over the vacant space forming part of
Schedule 'A' property and the defendants put up the
construction of the building on the ground floor and now in
the first floor and erecting windows and ventilators on the
western side of the wall of the Schedule 'B' property. The
assertion of the plaintiff is that the defendants have not
left the set back and put up illegal construction in the
Schedule 'B' property and tried to create a right of
easement by illegally erecting the window on the western
wall of the Schedule 'B' property. Whether the aforesaid
assertion of the plaintiff is correct or not, is required to be
ascertained by the Court Commissioner by physically
inspecting the suit schedule properties by ascertaining
whether the defendants have left the set back or not and
whether they have erected windows and ventilators on the
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western side of the wall of the Schedule 'B' property as
asserted by the plaintiff.
8. The contention of the plaintiff with regard to the
ownership of the Schedule 'B' property by the defendants
is not disputed by the plaintiff. The dispute is only with
regard to leaving set back by the defendants in Schedule
'B' property and erecting the window and ventilator in the
western wall of the Schedule 'B' property and the said
factual aspect is required to be ascertained by the Court
Commissioner only on physical inspection and
measurement of the properties. The Trial Court,
considering the rival contentions and taking note of the
relief sought in the plaint, has rightly allowed the
application for appointment of the Court Commissioner.
The same would not cause any prejudice to the defendants
as the defendants have every right to object the Court
Commissioner's report once it is placed before the Court.
I am of the considered view that the report of the Court
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Commissioner would aid the Trial Court in considering the
lis between the parties.
9. For the aforementioned reasons, I do not find
any merit in the contentions advanced by the petitioner
calling for interference with the impugned order of the
Trial Court.
10. The writ petition is devoid of merits and is
accordingly dismissed.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
List No.: 2 Sl No.: 1
