- 1 - NC: 2025:KHC-K:734 WP No. 202820 of 2022 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 1ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R.NATARAJ WRIT PETITION NO.202820 OF 2022 (GM-CPC) BETWEEN: NEELAPPA S/O GULAPPA KURI, AGE: 54 YEARS, OCC: AGRICULTURE, R/O KAKHANDAKI, TQ. BABLESHWAR, DIST. VIJAYAPUR. …PETITIONER (BY SRI. DEEPAK V. BARAD, ADVOCATE) AND: MALLAPPA S/O BHIMAPPA HERAKAL, AGE: 69 YEARS, OCC: AGRICULTURE, R/O KAKHANDAKI, TQ. BABLESHWAR, DIST. VIJAYAPURA-586113. …RESPONDENT (BY SRI. D. P. AMBEKAR, ADVOCATE) THIS WRIT PETIITON IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI THEREBY QUASHING THE IMPUGNED ORDER DATED 20-09-2022 PASSED IN O.S.NO.739/2013 BY THE I ADDL. CIVIL JUDGE AND JMFC, VIJAYAPURA AS AT ANNEXURE-H TO THIS WRIT PETITION. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by SACHIN Location: High Court Of Karnataka - 2 - NC: 2025:KHC-K:734 WP No. 202820 of 2022 CORAM: HON'BLE MR JUSTICE R.NATARAJ ORAL ORDER The plaintiff in O.S.No.739/2013 pending on the file of the I Additional Civil Judge and JMFC, Vijayapura (henceforth referred to as ‘Trial Court’) is before this Court challenging the correctness of an order dated 20.09.2022 by which, an application (I.A.No.VII) filed by the defendant under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (henceforth referred to as ‘CPC’) was allowed. 2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the plaintiff, while the respondent was the defendant before the Trial Court. 3. A suit in O.S.No.739/2013 was filed for perpetual injunction in respect of a land bearing Sy.No.762/4 situate at Kakhandaki viallage, Bableshwar Hobli, Bijapur Taluk, measuring 4 acres 6 guntas. The suit was based on title and corresponding revenue entries in the name of the plaintiff. - 3 - NC: 2025:KHC-K:734 WP No. 202820 of 2022 4. The defendant contested the suit inter alia contending that the owner of the suit property was related to him and that out of natural love and affection, the owner had relinquished the suit property in his favour and that his name was entered in the revenue records in the year 1981-82. He claimed that he was in possession of the suit property for more than 20 years and was paying land revenue. 5. Based on these contentions, issues were framed and the suit was set down for trial. After the evidence was adduced, the defendant filed an application (I.A.No.VII) under Order XXVI Rule 9 of CPC to “appoint a Court Commissioner (ADLR/Taluka Surveyor) to inspect the suit property bearing entire land in Sy.No.762/1, 762/2, 762/3, 762/4, 762/5 locality and who are in actual possession and its boundaries and to file his report.” 6. The said application was opposed by the plaintiff, who contended that he was only concerned with the land bearing Sy.No.762/4 and that he was in possession of the suit property and therefore, the Commissioner cannot be appointed - 4 - NC: 2025:KHC-K:734 WP No. 202820 of 2022 to fish out evidence to ascertain whether the plaintiff is in possession of the land bearing Sy.No.762/4 or not. 7. The Trial Court in terms of the impugned order allowed the application and appointed a Commissioner to know the exact extent of portions of Sy.No.762 on the basis of documents and to determine their boundaries. It also held that no loss or injury or prejudice would be caused to the plaintiff, if the Commissioner is appointed. 8. Being aggrieved by the said order, the plaintiff is before this Court. 9. The learned counsel for the plaintiff contended that the plaintiff was claiming title to the suit property under Smt. Gangawwa, while the defendant claimed that the suit property was relinquished in his favour by Smt. Gangawwa. He submitted that in the entire written statement, there is no mention that there is wrong demarcation of Sy.No.762 and that the plaintiff is cultivating the land belonging to the defendant. He submits that for the first time, the defendant came up with an application stating that there is a mistake in the division of Sy.No.762 and that the owners of corresponding survey - 5 - NC: 2025:KHC-K:734 WP No. 202820 of 2022 numbers are not in possession of their respective properties as per PT sheet. He contended that in his chief examination also, the defendant claimed that his possession in sy.No.762/2 was never disturbed but the plaintiff was trying to engulf his property. He therefore, contends that appointing a Commissioner at this stage of the proceedings would amount to collection of evidence and therefore, the Trial Court committed a mistake in allowing the application. He further contends that if the defendant has any claim over the property in possession of the plaintiff, he has to work out his remedy and he cannot compel his claim to be adjudicated upon in the suit filed by the plaintiff for perpetual injunction. 10. Per contra, the learned counsel for the defendant contended that the defendant had stated in his chief examination that though the plaintiff was the owner of Sy.No.762/4 but by oversight he is cultivating the land bearing Sy.No.762/2 and that the plaintiff was not willing for a survey of hissa of Sy.No.762. He therefore, contends that the dispute in the question relates to the question whether the plaintiff is in possession of Sy.No.762/4 or Sy.No.762/2 and hence, it is necessary to identify the boundaries of the property. - 6 - NC: 2025:KHC-K:734 WP No. 202820 of 2022 11. I have considered the submissions made by the learned counsel for the plaintiff and the learned counsel for the defendant. 12. If the plaintiff was in possession of Sy.No.762/2 and not Sy.No.762/4, the defendant must have mentioned it in his written statement and must have sought for counter claim. The defendant was bound to establish the same during the course of trial. It is not known whether the defendant has taken any steps in that regard. It is only in the course of his chief examination that such a contention was taken. Assuming for the sake of argument that the defendant had taken steps and if it is established that the plaintiff is in possession of Sy.No.762/2 and not Sy.No.762/4, then the Trial Court would not hesitate to pass appropriate orders denying the reliefs to the plaintiff. If the defendant contends that the plaintiff is in possession of Sy.No.762/2 and not Sy.No.762/4, he has to work out his remedy to claim back his land in Sy.No.762/2 and certainly, he cannot compel the Court to appoint a Commissioner to answer that question in the suit filed by the plaintiff for perpetual injunction. The Trial Court has lost sight of the matter and has not considered the fact that allowing the - 7 - NC: 2025:KHC-K:734 WP No. 202820 of 2022 application would open up entire case and thereby prejudice the plaintiff. The Trial Court was also oblivious of the fact that allowing the application amounted to collection of evidence that too, in a suit for perpetual injunction. In that view of the matter, the impugned order passed by the Trial Court warrants interference. 13. Hence, the following ORDER i) The writ petition is allowed. ii) The impugned order dated 20.09.2022 passed by the I Additional Civil Judge and JMFC, Vijayapura in O.S.No.739/2013 on I.A.No.VII filed by the defendant under Order XXVI Rule 9 of CPC is set aside. iii) The application (I.A.No.VII) filed by the defendant under Order XXVI Rule 9 of CPC in O.S.No.739/2013 is rejected. Sd/- (R.NATARAJ) JUDGE PMR List No.: 1 Sl No.: 51