- 1 - HC-KAR NC: 2025:KHC:21782 W.P. No.26863/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.26863/2019 (GM-CPC) BETWEEN: 1. SRI. BARAKULLA HUSSAINI S/O LATE SYED MAHABOOB HAVI AGED ABOUT 53 YEARS RESIDING AT MARGAL VILLAGE CHIKKA ANKANDAHALLI POST BANGARPET TALUK KOLAR DISTRICT-563 114. 2. SMT. SHEEDA BEGUM D/O LATE SYED MAHABOOB HAVI AGED ABOUT 48 YEARS RESIDING AT BEHIND GULPET POLICE STATION C.B. PUR ROAD, KOLAR CITY-563101. 3. SRI. SHABBIR HUSSAIN S/O LATE SYED MAHABOOB HAVI AGED ABOUT 45 YEARS RESIDING AT MARGAL VILLAGE CHIKKA ANKANDAHALLI POST BANGARPET TALUK KOLAR DISTRICT-563 114. 4. SMT. FAREEDA BEGUM D/O LATE SYED MAHABOOB HAVI AGED ABOUT 42 YEARS RESIDING AT BEHIND REDDY CHOULTRY MALUR TOWN, KOLAR DISTRICT. 5. SRI. MANZOOR HUSSAIN S/O LATE SYED MAHABOOB HAVI AGED ABOUT 39 YEARS RESIDING AT MARGAL VILLAGE CHIKKA ANKANDAHALLI POST Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:21782 W.P. No.26863/2019 BANGARPET TALUK KOLAR DISTRICT-563 114. …PETITIONERS (BY SRI. S. VISWESWARAIAH, ADV.,) AND: 1. SMT. G. SUDHA W/O T.S. GURURAJ RAO AGED ABOUT 52 YEARS. 2. SMT. G. SUMA D/O T.S. GURURAJA RAO AGED ABOUT 32 YEARS. 3. SMT. G. MALATHI D/O T.S. GURURAJA RAO AGED ABOUT 29 YEARS DECEASED REP. BY LR'S. 3(a) SRI. M.B. RAJENDRA S/O H.V. BHEEMASENACHAR AGED ABOUT 52 YEARS. 3(b) KUM. M.R. VAISHNAVI D/O M.B. RAJENDRA AGED ABOUT 19 YEARS. 3(c) KUM. M.R. HARSHINI D/O M.B. RAJENDRA AGED ABOUT 17 YEARS SINCE MINOR REP. BY HER NATURAL GUARDIAN/ FATHER SRI. M.B. RAJENDRA. [AMENDED AS PER THE ORDER OF THE HON'BLE COURT DTD:27.03.2024]. 4. SMT. G. BHARATHI D/O T.S. GURURAJA RAO AGED ABOUT 23 YEARS. 5. SMT. G. SAVITHA D/O T.S. GURURAJA RAO - 3 - HC-KAR NC: 2025:KHC:21782 W.P. No.26863/2019 AGED ABOUT 20 YEARS. ALL ARE R/AT. EBBELLA VILLAGE KASABA HOBLI MYSORE TALUK & DIST-570004. 6. THE TAHSILDAR BANGARPET TALUK BANGARPET KOLAR DISTRICT-563 114. …RESPONDENTS (BY SRI. C. SHANKAR REDDY, ADV., FOR R1, R2, R4 & R5 & ALSO FOR R3 (a - c)) - - - THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI/ANY OTHER WRIT/DIRECTION FOR QUASHING/SETTING ASIDE THE IMPUGNED ORDER PASED BY PRL. CIVIL JUDGE AND J.M.F.C., BANGARPET, IN O.S.NO.151/2006 PASSED ON I.A.NO.18 DATED 13.06.2019 PRODUCED AT ANNEXURE-A BY ALLOWING THE WRIT PETITION & 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 seeking for the following relief: "Issue a writ of certiorari/any other writ/direction for quashing/setting aside the impugned order passed by Prl. Civil Judge and JMFC, Bangarpet, in O.S.No.151/2006 passed on I.A.No.18 dated 13.06.2019 produced at Annexure-A by allowing the writ petition." - 4 - HC-KAR NC: 2025:KHC:21782 W.P. No.26863/2019 2. Heard. 3. Sri.S.Visweswaraiah, learned counsel for the petitioners submits that the petitioners have filed O.S.No.151/2006 seeking the relief of specific performance and consequential prayer for permanent injunction against the respondents herein. It is submitted that the husband of the respondent No.1 and the father of the respondent Nos.2 to 5 executed the agreement of sale dated 17.11.1974 and pursuant to the said agreement, the petitioners are in possession of the suit schedule property. It is further submitted that after conclusion of the trial, the petitioners have filed an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, seeking to appoint the Taluk Surveyor or an Advocate as the Court Commissioner to inspect the suit schedule property to find out the actual state of affairs with regard to suit schedule property and also with regard to the possession. He takes the Court to the averments made in paragraphs 2 and 3 of the affidavit supporting the application. It is also submitted that the Trial Court, without appreciating the same, proceeded to reject the application only on the - 5 - HC-KAR NC: 2025:KHC:21782 W.P. No.26863/2019 ground that sufficient evidence is available to decide the suit. He seeks to allow the petition. 4. Per contra, learned counsel for the respondent Nos.1 to 5 supports the impugned judgment and submits that the suit is filed in the year 2006 seeking to enforce the agreement of sale dated 17.11.1974. It has been clearly denied by the contesting respondents that there is no agreement of sale executed by Sri.T.S.Gururaj Rao and they have disputed the signature including the handing over of possession. It is submitted that the petitioners are required to prove the execution of agreement of sale and if they are able to prove the same, automatically the consequences of possession which is found in the alleged agreement would follow. Hence, seeking appointment of the Court Commissioner to find out the actual state of affairs and possession would not arise. It is further submitted that the petitioners want to create alternative prayer in the suit for adverse possession by collecting evidence by appointing the Court Commissioner which is impermissible in law. Hence, he seeks to dismiss the petition. - 6 - HC-KAR NC: 2025:KHC:21782 W.P. No.26863/2019 5. I have heard the learned counsel for the petitioners, learned counsel for the respondents and perused the material available on record. I have given my anxious consideration to the submissions made on both sides. 6. An application under Order XXVI Rule 9 read with Section 151 of the CPC came to be filed by the petitioners. The said application was accompanied by an affidavit of the petitioners-plaintiffs. In the said affidavit, an averment is made that Sri.T.S.Gururaj Rao executed the agreement of sale dated 17.11.1974 in favour of the petitioners and he has delivered the possession of the suit schedule property to them. It is also averred that the petitioners are the owners of adjacent land measuring 5 acres and both the suit schedule property and their land are adjacent to each other and they are in possession of both the lands and have improved the said lands. In other words, they intend to say that they have improved the suit schedule property as well as 5 acres of land owned by them and they have put up stone slab pillars around the suit schedule property and the entire 10 acres of land is one plot and are co-jointly cultivated by the petitioners. They - 7 - HC-KAR NC: 2025:KHC:21782 W.P. No.26863/2019 are seeking the Court to find out the present state of affairs with regard to the said plot which includes the suit schedule property and also 5 acres of land owned by the petitioners. In my considered view, the attempt of the petitioners is to establish possession over the suit schedule property by way of seeking appointment of the Court Commissioner. Ultimately, the petitioners are required to first prove the agreement of sale dated 17.11.1974 and if the agreement is proved, automatically the recital under the agreement which speaks with regard to the possession also follows. Hence, I am of the considered view that the attempt of the petitioners by way of seeking appointment of the Court Commissioner is nothing but to prove their possession over the suit schedule property by collecting evidence, which may not be the object of Order XXVI Rule 9 of the CPC. In view of the specific assertion of the respondents that the petitioners are not in possession of the suit schedule property and the execution of the agreement of sale dated 17.11.1974 is forged and created one, it is impermissible for the petitioners to seek appointment of the Court Commissioner to prove their possession. The Trial Court, at paragraph 8 has recorded a clear finding that there is - 8 - HC-KAR NC: 2025:KHC:21782 W.P. No.26863/2019 sufficient evidence on record to proceed with the matter and to answer the issues involved in the case. I am of the considered view that when the Trial Court has come to the conclusion that sufficient evidence is available on record to answer the issues involved in the case, it would not be appropriate for the petitioners to seek appointment of the Court Commissioner in the nature of the case on hand and material on record. Hence, I am of the considered view that the Trial Court was fully justified in rejecting the application seeking appointment of the Court Commissioner. I do not find any error in the order passed by the Trial Court calling for interference in this petition. 7. For the aforementioned reasons, I proceed to pass the following: ORDER The petition is devoid of merits and the same is accordingly dismissed. It is made clear that the observations made in this petition shall not come in the way of the Trial Court deciding the suit on its merits. - 9 - HC-KAR NC: 2025:KHC:21782 W.P. No.26863/2019 The Trial court shall make note of the fact that the suit is of the year 2006 and shall make an effort to dispose of the same as early as possible. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 44