[Cites 4, Cited by 0]

Karnataka High Court

Sri.Basava Aradhya vs Sri.Channabasavadevaru on 12 March, 2026

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                                                          NC: 2026:KHC:15103
                                                      W.P. No.13063/2021


                   HC-KAR




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 12TH DAY OF MARCH, 2026
                                            BEFORE
                         THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                            WRIT PETITION NO.13063/2021 (GM-CPC)


                   BETWEEN:

                   1.    SRI. BASAVA ARADHYA
                         S/O LATE RAVEGOWDA
                         AGED ABOUT 62 YEARS.

                   2.    SRI. SHIVARDURA ARADHYA
Digitally signed         S/O LATE RAVEGOWDA
by ARSHIFA               AGED ABOUT 62 YEARS.
BAHAR KHANAM
Location: HIGH           BOTH ARE AGRICULTURIST
COURT OF
KARNATAKA                R/AT RAMSANDRA VILLAGE
                         NARASAPURA HOBLI
                         KOLAR TALUK.
                                                              ...PETITIONERS
                   (BY SRI. A. MADHUSUDHANA RAO, ADV.,)


                   AND:

                   SRI. CHANNABASAVADEVARU
                   S/O NANJUNDAPPA
                   AGED ABOUT 60 YEARS
                   R/AT RAMSANDRA VILLAGE
                   NARASAPURA HOBLI
                   KOLAR TALUK.

                                                              ...RESPONDENT
                   (BY SRI. UMESH B.N. ADV.,)
                               -2-
                                           NC: 2026:KHC:15103
                                          W.P. No.13063/2021


HC-KAR




     THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 18.03.2021 PASSED BY THE
LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, KOLAR ON
I.A.NO.VIII IN O.S.NO.478/2010 PRODUCED AT ANNEXURE-E
AND ALLOW THIS WRIT PETITION WITH COSTS & ETC.

      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

18.03.2021 passed on I.A.No.8 in O.S.No.478/2010 by the

Principal Civil Judge & JMFC, Kolar, (for short, 'the trial

Court')

2. Sri.A.Madhusudhana Rao, learned counsel for

the petitioners submits that petitioners-plaintiffs have filed

a suit in O.S.No.478/2010 for permanent injunction

against the respondent-defendant and after the trial, the

plaintiffs filed an application seeking for appointment of

Court Commissioner to measure the suit schedule

property, which came to be rejected by the trial Court

solely on the ground that the defendant in the written

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statement has taken a specific stand that there is no such

property that exists. It is submitted that if the property is

not in existence, then the Court Commissioner would give

appropriate report. It is further submitted that it is the

case of the plaintiffs before the trial Court that the total

extent in Sy.No.35 is 2 acre 17 guntas and the father of

the plaintiffs has purchased 10 guntas which is shown as

suit schedule property and it is the specific case of the

plaintiffs that in the same survey number, the defendant

owns 23 guntas of the land, which is towards the western

side of the suit schedule property. Hence, it is necessary

for the trial Court to appoint a Court Commissioner to

measure and find out the suit schedule property and the

report of the Court Commissioner would aid the trial Court

in granting or refusing to grant the relief sought in the

plaint. Hence, he seeks to allow the petition.

3. Per contra, Sri.Umesh B.N., learned counsel

appearing for the respondent-defendant supports the

impugned order of the trial Court and submits that the

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defendant has taken a specific stand in the written

statement that the father of the plaintiffs and the father of

the defendant got property divided way back in the year

1999 and in the said partition no share is allotted to the

father of the plaintiffs in Sy.No.35. Hence, claiming any

right over 10 guntas in the suit schedule property would

not arise. It is submitted that as per the partition, 23

guntas of the land has fallen to the share of the defendant

and remaining extent is already sold by the family prior to

the partition. Hence, there is no existence of the property

claimed in the suit. Therefore, question of appointing the

Court Commissioner to measure the property would not

arise. Hence, he seeks to dismiss the petition.

4. I have heard the arguments of the learned

counsel appearing on both the sides and perused the

material available on record.

5. It is to be noticed that the petitioners, who are

the plaintiffs, filed a suit against the defendant for

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permanent injunction making a specific assertion in the

plaint that the suit schedule property measuring 10 guntas

in Sy.No.35 was purchased by the father of the plaintiffs

under the registered sale deed dated 16.11.1961 and

based on such registered sale deed of the properties, the

name of the father of the plaintiffs was mutated as per MR

No.60/1961-62 and thereafter the father of the plaintiffs

was in possession and after the demise of their father,

they continued with the possession and the respondent-

defendant is interfering with the possession of the suit

schedule property. After adducing the evidence, the

plaintiff filed an application under Order XXVI Rule 9 and

10 read with Section 151 of CPC praying to appoint ADLR

or Taluk Surveyor as a Court Commissioner to measure

and fix the boundary and to prepare actual sketch. After

considering the arguments on both the sides, the trial

Court rejected the said application mainly on the ground

that the issue is with regard to the existence of the suit

schedule property in question and the appointment of the

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Court Commissioner for local inspection would not arise

unless the plaintiffs prove that the suit schedule property

exists. In my considered view the trial Court committed a

grave error.

6. The plaintiffs are seeking to appoint the Court

Commissioner to measure the property i.e., property

measuring 10 guntas in Sy.No.35. The plaint averment

and the suit schedule property indicate that the total

extent in the said survey number is 2 acres 17 guntas and

out of the said extent, the plaintiffs are claiming right over

10 guntas of the land. Though the defendant, in the

written statement, has categorically denied the existence

of the said property in the Survey No.35 by stating that

there was a partition amongst the plaintiffs and the father

of the defendant and in the said partition no share was

allotted to the plaintiffs in Sy.No.35. What is required to

be noticed in the present dispute is that if the property is

not existing as claimed by the defendant, definitely the

Court Commissioner would give a report to that effect

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before the trial Court. The attempt of the petitioners-

plaintiffs before the trial Court is to measure the property

measuring 10 guntas in Sy.No.35 out of 2 acres of 17

guntas cannot be denied only based on the averments in

the written statement.

7. It is always open for the defendant to place the

material before the Court Commissioner to substantiate

the fact that there is no allotment of share in favour of the

plaintiffs in the said survey number and the remaining

extent is sold by the family members to third parties and

that the Court Commissioner would give appropriate

report before the trial Court. In my considered view the

objection raised by the defendant cannot be the basis to

reject the application for appointment of the Court

Commissioner. The Court Commissioner is required to

measure the schedule property and if necessary can

measure total extent of the Sy.No.35 and submit the

report. The report should also contain whether such

property exists or not and such a finding of the Court

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Commissioner would aid the trial Court in deciding the

pending suit.

8. For the aforementioned reasons, I proceed to

pass the following:

ORDER

i. Petition is allowed.

ii. The impugned order dated 18.03.2021

passed on I.A.No.8 in O.S.No.478/2010 by

the Principal Civil Judge & JMFC, Kolar, is

hereby set aside.

iii. Consequently, I.A.No.8 filed by the

plaintiffs under Order XXVI Rule 9 and 10

read with Section 151 of CPC is allowed.

The trial Court is directed to appoint the

Court Commissioner as sought in the said

application.

iv. It is open for the plaintiffs as well as the

defendant to place necessary documents

before the Court Commissioner, which

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would enable the Court Commissioner to

submit appropriate report before the trial

Court.