- 1 - NC: 2025:KHC:11326 WP No. 41098 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 41098 OF 2018 (GM-CPC) BETWEEN: MALLIKARJUNA S/O LATE SRIMANTHAPPA, AGED ABOUT 42 YEARS, R/AT TAMATAKAL VILLAGE, CHITRADURGA TQ & DISTRICT -577 501. …PETITIONER (BY SRI. DARSHAN R.S., ADVOCATE FOR SMT. SPOORTHY HEGDE N.,ADVOCATES) AND: H. MANJUNATHA S/O LATE HONNAPPA, AGED ABOUT 56 YEARS HORTICULTURE-ASSITANT, R/AT TAMATAKAL VILLAGE, CHITRADURGA TQ & DIST-577 501 …RESPONDENT (BY SRI. NANDEESHA K.R.,ADVOCATE FOR SRI. B.M. SIDDAPPA., ADVOCATES) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN O.S.NO.376/2014 ON THE FILE OF THE LEARNED II ADDL. CIVIL JUDGE, CHITRADURGA;QUASH THE IMPUGNED ORDER DATED 10.8.2018 ON I.A.NO.4 AS PER ANNEXURE-J IN O.S.NO.376/2014 ON THE FILE OF THE LEARNED II ADDL. CIVIL JUDGE, CHITRADURGA BY DECLARING THE SAME IS ILLEGAL BESIDES ERRONEOUS AND ETC. Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11326 WP No. 41098 of 2018 THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER 1. Petitioner, a defendant in O.S. No. 376/2014 is before this Court being aggrieved by the order dated 10.08.2018 rejecting his application filed under Order XXVI Rule 9 of CPC. 2. The above suit is filed by the respondent for the relief of declaration of ownership over the suit schedule property. In the written statement defendant has made a counterclaim alleging that the plaintiff has encroached upon portion of the property belonging to the defendant. Issues have been framed. 3. Petitioner/defendant filed the above application seeking appointment of Court Commissioner, namely, Engineer, Taluk Panchayat Office, Chitradurga to ascertain the counterclaim written statement property of defendant Nos. 1 and 4. The trial Court rejected the application solely on the ground that the application filed by the petitioner - 3 - NC: 2025:KHC:11326 WP No. 41098 of 2018 would amount to collection of evidence which is impermissible and accordingly dismissed the application. 4. Counsel for the petitioner reiterating the grounds urged in the memorandum of writ petition submits that the appointment of Commissioner was sought only to measure the properties being claimed by the parties and conduct of survey and taking measurement would not amount to collecting of evidence. He submits that measurement of the property is essential for the purpose of determination of the lis between the parties. 5. Per contra, learned counsel for the respondent submits that the trial Court is justified in dismissing the application in as much as the same is sought to collect the evidence which is impermissible. He submits that the defendant is required to prove the case based on the documents and hence seeks for rejection of the petition. 6. Heard. perused the records. 7. Case of the plaintiff is that he has acquired the property by virtue of a Will dated 31.12.1959 stated to have been executed by his grandmother. There appears to be no - 4 - NC: 2025:KHC:11326 WP No. 41098 of 2018 mention in the will regarding the measurement of the property. However, an averment is made in the plaint that after the death of the mother of the plaintiff, an extent of land measuring East to West 23 feet and North to South 55 feet towards eastern portion of land situated at Tamatkal Village, Chitradurga District, was changed in the name of the plaintiff and that on 09.07.2014, due to rainfall, some portion of the house collapsed and when the plaintiff attempted to carry out the repair work, defendant interfered with the possession. 8. Case of the petitioner/defendant on the other hand is that their father one Channappa had purchased the property measuring East to West 34 yards and North to South 24 yards as described in the written statement in terms of deed of sale dated 19.12.1956, ever since then they have been in possession and enjoyment of the same. It is his further allegation that suit schedule property is situated towards western side of property belonging to one Narasimha and the property of the petitioner/defendant is situated towards the eastern side of property of said - 5 - NC: 2025:KHC:11326 WP No. 41098 of 2018 Narasimha. That the plaintiff had encroached the entire property of Narasimha and thereafter had even encroached the property of the defendant to an extent of east to west 7 and 1/2 feet and north to south 24 yards by putting up the construction. 9. Clearly, there appears to be issue with regard to the measurement of the property between the parties. In the light of averment made with regard to the Will dated 31.12.1959, not having any details about the measurements, and the defendants claiming their property based on the sale deeds which is stated to have contained the measurements, and since the burden is casted on both the plaintiffs as well as the defendants to prove their respective claims, ascertaining the measurement of the properties as claimed by the parties may be relevant. Which would only aid in effective appreciation of the evidence of the parties. Though it may be the application filed by the petitioner to ascertain the counterclaim written statement property, it may have to be read only to the extent of measuring the property belonging to petitioner/defendant. - 6 - NC: 2025:KHC:11326 WP No. 41098 of 2018 10. In that view of the matter, following: ORDER (i). Petition is allowed. (ii). Impugned order dated 10.08.2018 is set-aside. (iii). The Trial Court shall reconsider the application to the extent of ascertaining the measurement of the properties being claimed by the parties, if found necessary for proper appreciation of the evidence and pass appropriate order thereafter. Sd/- (M.G.S. KAMAL) JUDGE LRS/RL List No.: 1 Sl No.: 26