[Cites 2, Cited by 0]
Karnataka High Court
Sri Nagappa N G vs Secretary on 18 March, 2026
-1-
NC: 2026:KHC:15878
WP No. 13148 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO. 13148 OF 2021 (GM-CPC)
BETWEEN:
1. SRI NAGAPPA N. G.
S/O N G BASAVANYAPPA GONDI
AGED ABOUT 78 YEARS
RESIDING AT KOTIPURA VILLAGE
ANAVATTI HOBLI, SORABA TALUK
SHIMOGA - 577 413
REPRESENTED BY HIS GPA HOLDER
SRI BASAVARAJ N.G.
SON OF N.G .BASAVANYAPPA GONDI
AGED ABOUT 40 YEARS
RESIDING AT KOTIPURA VILLAGE
ANAVATTI HOBLI, SORABA TALUK
SHIMOGA - 577 413
Digitally signed
by
...PETITIONER
SHARADAVANI B (BY SRI. THILAK VIGNESH A., ADVOCATE FOR
Location: High
Court of SRI. MANJUNATH V., ADVOCATE)
Karnataka
AND:
1. SECRETARY
GRAM PANCHAYATH
KUBATURU, ANAVATTI HOBLI
SORABA TALUK
SHIMOGA - 577 413
2. EXECUTIVE OFFICER
-2-
NC: 2026:KHC:15878
WP No. 13148 of 2021
HC-KAR
TALUK PANCHAYATH
SORABA TALUK
SHIMOGA - 577 413
3. CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYAT
SHIMOGA - 577 201.
...RESPONDENTS
(R1 TO R3 ARE SERVED BUT UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 07.07.2021 VIDE ANENXURE-A
PASSED BY THE LEARNED COURT OF THE CIVIL JUDGE JUNIOR
DIVISION AND JUDICIAL MAGISTRATE FIRST CLASS, SORABA
AT SHIMOGA IN O.S.NO.160/2013, AND CONSEQUENTLY
DISMISS THE APPLICATION FILED BY THE RESPONDENTS.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This writ petition is filed challenging the order dated
07.07.2021 passed in O.S.No.160/2013 by the Civil Judge,
Junior Division and JMFC, Soraba (for short, 'Trial Court') on an
application filed by the defendants for an appointment of a
Court Commissioner.
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HC-KAR
2. Sri. Thilak Vignesh, learned counsel for the
petitioner submits that the petitioner has filed a suit for an
injunction against the respondents/defendants as the
defendants/Gram Panchayath illegally intend to form a road in
the property owned by the petitioner/plaintiff. It is submitted
that the plaintiff has adduced the evidence in the suit at that
stage the defendant No.1 has filed an application for
appointment of a Court Commissioner to conduct a survey and
look at the boundary of the suit schedule property. The said
application was opposed by the petitioner. However, the trial
Court erroneously allowed the application. It is submitted that
the suit filed by the petitioner is for the relief of injunction. The
petitioner is required to prove his lawful possession and filing of
such application by respondent No.1 and entertaining the same
would not arise. Hence, he prays to allow the petition and to
set aside the impugned order.
3. Notice of this petition is served on the respondents,
they remained absent.
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4. I have heard the arguments of the learned counsel
for the petitioner and meticulously perused the material on
record.
5. The records indicate that if the petitioner has filed a
suit in O.S.No.160/2013 for relief of a permanent injunction
against the respondents, in the said suit, the contesting
respondents have filed a written statement denying the
averments made in the plaint. Respondent No.1 has specifically
raised the defence that the plaintiff has encroached 25 feet of
the land belonging to the gram panchayat and has put up the
fence. After the commencement of the trial, respondent No.1
filed an application under Order XXVI Rule 9 of the Code of Civil
Procedure, 1908 seeking appointment of the Court
Commissioner. The application filed by respondent No.1 is
accompanied by an affidavit and the said affidavit indicates that
the plaintiff, with a malafide intention to encroach on the
property by showing wrong boundaries and wrongly showing
the extent of the property, made an attempt to encroach upon
the aforesaid property and it is necessary to find out the actual
extent of the suit schedule property with regard to the
boundaries and it is required to be found out whether the
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plaintiff has encroached on the Gram Panchayat property to the
extent of 20 feet of vacant land, which was earmarked as a
road for the general public. The trial Court considering the
same and the stand of the gram panchayat, allowed the
application.
6. It is noticed that the petitioner who has filed a suit
for injunction is required to prove his lawful possession based
on the registered sale deed. However, it cannot be ignored that
respondent No.1 has taken specific plea before the Trial Court
that the plaintiff has shown the boundaries incorrectly and is
squatting over the property of the Gram Panchayat.
7. In my considered view, for the complete
adjudication of the dispute, the trial Court is required to find
out the actual boundaries of the suit schedule property and the
alleged possession of the plaintiff, as the defendants are
seriously disputing the same. Hence, the appointment of the
Court Commissioner is necessary for complete adjudication of
dispute and to grant or not to grant the relief to the plaintiff.
The Co-ordinate Bench of this Court in the case of Sri.
Shadaksharappa Vs. Kum. Vijayalaxmi reported in
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W.P.No.201274/2022, has laid down the guidelines with
regard to the appointment of Court Commissioner and further
held that the appointment of the Court Commissioner would aid
the Trial Court in deciding the dispute correctly. Keeping in
mind the decision of this Court, I am of the view that the Trial
Court is justified in allowing the application.
8. Accordingly, the writ petition is devoid of merits and
the same is rejected.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
GJM
List No.: 1 Sl No.: 3
