Sri Bette Gowda vs Smt. M.V. Vijayalakshmi on 24 March, 2026

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                                                      W.P. No.21322/2021


                   HC-KAR




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 24TH DAY OF MARCH, 2026
                                           BEFORE
                      THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                            WRIT PETITION NO.21322/2021 (GM-CPC)


                   BETWEEN:

                   SRI. BETTE GOWDA
                   S/O LATE NARASHIME GOWDA
                   AGED ABOUT 78 YEARS
                   R/AT NO.194, NEAR WATER TANK
                   KUMBAR KOPPAL, MYSURU-570004
Digitally signed   REPRESENTED BY GPA HOLDER
by RUPA V          K.B. VIJAY KUMAR.
Location: HIGH                                               ...PETITIONER
COURT OF
KARNATAKA          (BY SRI. CHIDANANDA P, ADV.,)


                   AND:

                   SMT. M.V. VIJAYALAKSHMI
                   W/O KRISHNE GOWDA
                   AGED ABOUT 56 YEARS
                   R/AT NO.38, IST CROSS
                   ADI PAMPA ROAD
                   V V MOHALLA, MYSURU-570002.

                                                            ...RESPONDENT
                   (BY SRI. K.B. CHANDRA SHEKARA SWAMY, ADV.,)


                        THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
                   CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
                   NATURE OF CERTIORARI SETTING ASIDE OR QUASHING THE
                   ORDER DTD.7.9.2021 PASSED ON IA NO.13 BY THE HON'BLE
                   PRL. FIRST CIVIL JUDGE AND JMFC AT MYSORE IN
                   O.S.NO.255/2012 AT ANNEXURE-F & ETC.
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     THIS PETITION HAVING BEEN HEARD AND RESERVED ON
18.03.2026, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY, THE COURT MADE THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

                             CAV ORDER

        This writ petition is filed challenging the order dated

07.09.2021 passed on I.A.No.13 in O.S.No.255/2012, by

the III Additional Civil Judge and JMFC, Mysuru.


        2.     The learned counsel for the petitioner submits

that the petitioner-plaintiff has filed a suit for perpetual

injunction against the defendant.          In the said suit, the

defendant disputed the description of the suit schedule

property and to find out the factual matrix, the plaintiff

filed     an   application   for    appointment   of   the   Court

Commissioner to survey and measure the suit schedule

property as well as site No.228 claimed by the defendant.

However, the Trial Court, under the impugned order,

rejected the application solely on the ground that the

application is filed belatedly and since the suit is for

injunction, the plaintiff is required to prove his lawful
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possession. It is submitted that when the defendant has

disputed the description of the property in question, the

appointment of the Court Commissioner is a must. Hence,

he seeks to allow the writ petition.


     3.      Per    contra,    the      learned    counsel    for   the

respondent-defendant supports the impugned order of the

Trial Court and submits that the plaintiff is required to

prove his lawful possession over the suit schedule property

by adducing the material evidence and therefore, filing of

the application for appointment of the Court Commissioner

would not arise.         Hence, he seeks to dismiss the writ

petition.


     4.      I have heard the arguments of the learned

counsel     for    the   petitioner,    learned     counsel   for   the

respondent and perused the material available on record.


     5.      The material on record indicates that the

plaintiff has filed a suit in O.S.No.255/2012 against the

defendant for the relief of injunction by contending that
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the defendant and his agents, servants are interfering with

the suit schedule property and are trying to put up a

structure in a portion of the suit schedule property. The

suit schedule property is shown as a residential house with

asbestos sheet roofing at site No.227, carved out of

Sy.Nos.228, 229/1, 229/2, 229/3, 231/2, 232 and 273/2

totally measuring 14 acres 5 guntas, out of which a site

measuring East to West: 40+45/2 feet and North to

South: 42 feet carved out in Sy.No.229/2 of Hebbal

Village, Kasaba Hobli, Mysuru Taluk. The chakbandi to the

schedule is also shown more particularly towards the

western side as the property of Vanivilas House Building

Co-operative Society.    The defendant filed a detailed

written statement denying the assertions of the plaint. It

is averred that the description of the suit schedule

property and the measurement is not correct. The same

was disputed by the defendant and without seeking the

relief of declaration, the suit is not maintainable.   It is

further averred that the defendant has purchased site
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No.228 carved out of the lands bearing Sy.Nos.228,

229/1, 229/3, 231/2, 232 and 273/2 of Hebbal Village,

Kasaba Hobli, Mysuru Taluk.       It is also averred that the

properties were acquired from Vanivilas Mohalla Gruha

Nirmana Sahakari Sangha Ltd. under the registered sale

deed dated 24.02.2007 and the defendant is in the actual

physical possession of the property.


     6.   The plaintiff filed an application under Order

XXVI Rule 9 of the Code of Civil Procedure, 1908, seeking

for appointment of the Court Commissioner i.e. Taluk

Surveyor to ascertain in which survey number, the suit

schedule property as well as site No.228 claimed by the

defendant are situated.   The affidavit accompanying the

application filed by the plaintiff indicates that the sketch

annexed to the sale deed of the defendant goes to show

that site No.228 alleged to have been purchased by the

defendant is situated in Sy.No.273/2 and the suit schedule

property i.e. the site in question is carved out of

Sy.No.229/2.   In view of the aforesaid assertions in the
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affidavit   accompanying     the   application,   the   plaint

averments, the averments in the written statement and

the objections to the application, it is evident that there is

a dispute with regard to the identification of the property

claimed by the plaintiff as well as the defendant.        The

burden is on the plaintiff to establish his lawful possession

over the suit schedule property by adducing the oral and

documentary evidence before the Trial Court in order to

grant the relief sought in the plaint. The Trial Court ought

to have allowed the application by directing the Surveyor

to conduct the survey to find out in which survey number

the site in question claimed by the plaintiff as well as the

defendant's site, were carved out. In my considered view,

unless the existence and the actual measurement of the

disputed sites are found out by appointing the Court

Commissioner, it would be difficult for the Trial Court to

grant the relief sought in the plaint. Hence, I am of the

opinion that the appointment of the Court Commissioner

would aid the Trial Court in adjudicating the dispute
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between      the    parties   more        so   when   the   defendant

specifically     disputes     the      extent,   measurement     and

description of the suit schedule property and no prejudice

would be caused to the defendant if the property is

measured. The Trial Court has failed to consider the fact

that the defendant would have all the opportunities to

question the Court Commissioner's report in accordance

with law.       In case the Court Commissioner's report is

contrary to the factual matrix or is against the defendant,

it is open for the defendant to challenge the same.


      7.       For the aforementioned reasons, I proceed to

pass the following:

                               ORDER

(i) The writ petition is allowed.

(ii) The impugned order dated 07.09.2021 passed

on I.A.No.13 in O.S.No.255/2012, by the III

Additional Civil Judge and JMFC, Mysuru, is set

aside. Consequently, I.A.No.13 filed by the

plaintiff is allowed.

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(iii) The Trial Court shall appoint the Court

Commissioner as sought by the plaintiff.

No order as to costs.

Sd/-