Smt Gangamma vs Smt Lxmamma
2026 Latest Caselaw 1629 Kant

Karnataka High Court

Smt Gangamma vs Smt Lxmamma on 21 February, 2026

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                                                          NC: 2026:KHC:10862
                                                         WP No. 3909 of 2026


                HC-KAR


                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                      DATED THIS THE 21ST DAY OF FEBRUARY, 2026
                                          BEFORE
                         THE HON'BLE MR. JUSTICE JAYANT BANERJI
                         WRIT PETITION NO. 3909 OF 2026 (GM-CPC)
               BETWEEN:

               1.    SMT.GANGAMMA,
                     W/O LATE SRI SIDDALINGAIAH,
                     AGED ABOUT 65 YEARS,

               2.    MR.SIDDAIAH,
                     S/O LATE SRI SIDDALINGAIAH,
                     AGED ABOUT 45 YEARS,

                     BOTH ARE R/AT:
                     AMBEDKAR NAGARA,
                     SUBRAMANYA TEMPLE STREET,
                     M.C.HALLI, VILLAGE AND POST,
                     KASABA HOBLI, TARIKERE TALUK-577 228.
                                                                ...PETITIONERS
               (BY SRI B.N.JAYADEVA., ADVOCATE)
               AND:

               1.    SMT.LAXMAMMA,
Digitally            W/O SRI CHIKKA RAMAIAH,
signed by            AGED ABOUT 76 YEARS,
KAVYA G
Location:      2.    SRI.RAVISHANKAR,
High Court           S/O SRI CHIKKA RAMAIAH,
of Karnataka         AGED ABOUT 56 YEARS,

                     BOTH ARE R/AT:
                     KHB 88/A, GOLDEN JUBILEE COLONY,
                     UPPER HUTTA, BHADRAVATHI-577 301.
                                                              ...RESPONDENTS
                    THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
               CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER AT
               ANNEXURE-G DATED 09.09.2025, PASSED IN O.S. NO.107 OF 2018
               ON THE FILE OF THE SENIOR CIVIL, JUDGE AND PRINCIPAL JMFC AT
               TARIKERE REJECTING THE APPLICATION FILED UNDER ORDER XXVI
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                                                    NC: 2026:KHC:10862
                                                WP No. 3909 of 2026


HC-KAR


RULE 9 READ WITH SECTION 151 OF CODE OF CIVIL PROCEDURE AT
ANNEXURE E.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI

                              ORAL ORDER

Heard learned Counsel for the petitioners.

2. This petition has been filed under Article 227 of the

Constitution of India seeking the following reliefs:

(a) Issue a writ of certiorari or any other appropriate writ, order or direction setting aside the order at Annexure-G dated 09.09.2025 passed in O.S.No.107 of 2018 on the file of the Hon'ble Senior Civil Judge and JMFC at Tarikere rejecting the application filed under Order 26 Rule 9 read with section 151 of Code of Civil Procedure at Annexure-E, and allow the said application at Annexure-E.

(b) and grant such other reliefs as deemed just in the circumstances including cost in the ends of justice and equity."

3. The order under challenge is dated 09.09.2025

passed in O.S.No.107/2018 on the file of the Senior Civil Judge

and Principal JMFC at Tarikere rejecting the application filed by

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the defendants/petitioners under Order XXVI Rule 9 read with

Section 151 of CPC.

4. The suit is one for declaration and possession.

Further relief of mesne profits and permanent injunction is also

sought. I.A.No.11 was moved by the petitioners under Order

XXVI Rule 9 read with Section 151 of CPC for appointing a

Court Commissioner to measure/demarcate the suit schedule

property and also the property of the defendants and to report

encroachment if any over the suit schedule property.

5. The point that was formulated for consideration by

the trial Court is as follows:

"1. Whether the defendants have made out reasonable grounds to appoint the court Commissioner for local inspection?

2. What order?"

6. Point No.1 was answered in the negative. The trial

Court observed that the plaintiff has approached the Court with

a specific allegation that the defendants/petitioners are in

illegal possession of the property belonging to the plaintiff

described in Schedule 'B' of the plaint. The burden is on the

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plaintiff to establish his case. It is his duty to discharge the

burden. The trial Court observed that since the burden is on the

plaintiff, question of appointing the Court Commissioner at the

instance of the defendants does not arise at all.

7. The settled law was that decision of material issue

cannot be left to a Commissioner. A judgment of this Court in

Puttappa v. Ramappa [AIR 1996 KAR 257] was also relied

upon by the trial Court. Accordingly the IA filed by the

defendants was rejected.

8. Though the learned Counsel for the petitioners has

vehemently argued that it is necessary to determine the area of

the alleged encroachment made by the defendants if any and

that IA deserves to be allowed as the demarcation would have

given the details/boundaries of the property in dispute which

would have well identified the property, however, the order of

the learned Senior Civil Judge is based on the established

principle of law that the onus is on the plaintiff to prove his

case.

9. The appointment of a Commissioner is not to be

sought by a party for the purpose of collecting evidence. In

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view of the above, this Court finds no error of jurisdiction or

perversity in the order impugned that would merit interference.

This petition is therefore dismissed.

10. The Registry is directed to communicate this order

to the concerned trial Court within fifteen days from today so

that it is kept on the record.

Sd/-

(JAYANT BANERJI) JUDGE

KSR List No.: 1 Sl No.: 5