- 1 - HC-KAR NC: 2025:KHC:18766 WP No. 11124 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 11124 OF 2025 (GM-CPC) BETWEEN: SRI. P. NAGARAJ, S/O LATE PAPANNA, AGED ABOUT 61 YEARS, R/A NO.22, 1ST CROSS, SRINIVAGILU VILLAGE, PAYAPPA BLOCK, VIVEKANAGAR POST, BENGALURU - 560 047. REPRESENTED BY HIS GPA HOLDER: SRI. N. RAJENDRA, S/O LATE Y. NAGARAJ, AGED ABOUT 46 YEARS, R/A NO.3, 20TH CROSS, NEAR BHAJANE MANE, EJIPURA, VIVEKANAGAR POST, BENGALURU - 560 047. …PETITIONER (BY SRI. T.K.RAJAGOPALA., ADVOCATE) AND: 1. MRS. RIZWANA BEGUM, W/O FAIROZEN KHAN, AGED ABOUT 71 YEARS, R/A NO.3, 14TH CROSS, Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:18766 WP No. 11124 of 2025 HOSAHALLI MAIN ROAD, PADRAYANAPURA, BENGALURU - 560 026. 2. SRI. FAIROZEN KHAN, S/O.HABEEB KHAN, AGED ABOUT 85 YEARS, R/A NO.3, 14TH CROSS, HOSAHALLI MAIN ROAD, PADRAYANAPURA, BENGALURU - 560 026. …RESPONDENTS THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING APPROPRIATE WRIT OR ORDER TO SET ASIDE THE ORDER DATED 07.03.2025 BY THE COURT OF V ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH NO.13) IN O.S. NO.3099/2014 PASSED ON IA NO.22 FILED BY THE PETITIONER HEREIN UNDER ORDER XXVI RULE 9 READ WITH SECTION 151 OF C.P.C AT ANNEXURE – A AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:18766 WP No. 11124 of 2025 CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER Heard Sri. T.K. Rajagopala, learned counsel appearing for the petitioner and have perused the material on record. 2. The petitioner-plaintiff is at the doors of this Court calling in question an order passed on I.A.No.22 filed by the plaintiff under Order XXVI Rule 9 read with Section 151 of C.P.C. for seeking appointment of Commissioner for identification of the property. 3. The petitioner is the plaintiff, the respondents are the defendants. The petitioner is a tenant in the suit schedule property having entered into a lease with the owner of the property. The suit schedule property and the property described in the document of lease between the petitioner and the owner of the property is not at variance, notwithstanding the same at the fag end of the proceedings. The petitioner- plaintiff filed an application under Order XXVI Rule 9 read with Section 151 of C.P.C. seeking appointment of Commissioner to measure the suit schedule property. - 4 - HC-KAR NC: 2025:KHC:18766 WP No. 11124 of 2025 4. It is not in dispute that the petitioner is a tenant who is residing in the said property and as observed hereinabove. 5. The concerned Court, by the impugned order dated 07.03.2025, rejects the application filed by the petitioner, by the following reasons: "8. Not in dispute the plaintiff is be the tenant of suit schedule property. The plaintiff disputed the defendants ownership in the suit schedule property. But the plaintiff admitted he is an tenant under the person who claimed the title of the property in against the defendants. It important to note the person who claimed the ownership of the in against the defendants not to be an party to this suit. Also important to note no suit in between the defendants and the person who claimed the title upon the suit schedule property with respect to title of the property. If the plaintiff once he will not claim any of the interest other than the possession the claim in the application by him surprise to the law of land. If suppose any such of the dispute exist with respect to identification, measurement and existence of the suit schedule property, the landlord of the plaintiff and the defendants have to take that recourse and not by the plaintiff. With that background the judgments which relied by the plaintiff not applicable to the case on hand. Hence with due respect upon the same judgments I decline to apply the ratio of the aforesaid judgments of the Hon'ble High Court of Karnataka to the facts of present suit. Suit of the plaintiff one for permanent injunction. On perusal of issues all issues are cast - 5 - HC-KAR NC: 2025:KHC:18766 WP No. 11124 of 2025 only on the plaintiff. The plaintiff required to prove, he is in the possession of suit schedule property as on the date of filing of the suit and alleged interference by the defendant. The plaintiff has claimed, he is in the possession and enjoyment of the suit schedule property as on the date of suit. Further the plaintiff have also claimed alleged interference of the defendants over the plaintiff's possession in the suit schedule property. The same such claim of the plaintiff ought to have been proved by the plaintiff only. Admittedly suit schedule 1 and 2 properties are the immovable properties having its total measurement area of 1451.25 square feet formed out in Sy.No. 33/5 and 32/7 bearing katha No.1 and 1220. square feet formed out in Sy.No. 33/5 and 32/7 bearing katha No.2. If the plaintiff have identified the suit schedule property by its description and its identification he ought to have been prove the case theory with respect to that such property. If the plaintiff once he would be called as an master of his suit and since he claimed the relief over the suit schedule property, the plaintiff has to prove his case by placed an cogent evidence. Further even on going through the case records and documents which relied by the plaintiff, the same also have not speak anything about the truth and contention which taken by the plaintiff at I.A. No.22. Further, on keen perusal of prayer which prayed at IA No.22, that such prayer herein evidence the plaintiff have attempt to sublet the burden which cast on him and kind of an attempt to prove his case based on commissioner report over the suit schedule properties. The same such act of the plaintiff herein established that the plaintiff tried to make the process of the court as abuse. Further on going through the case records along with application, no material it do warranted this court for local investigation and elucidating any matter in dispute. Accordingly, no prima facie that I found on the application of the plaintiff. Hence, I answer Point A - 6 - HC-KAR NC: 2025:KHC:18766 WP No. 11124 of 2025 and B in the negative and proceed to pass the following:- ORDER Interim application no.22 filed under Order 26 Rule 9 r/w Section 151 of CPC hereby rejected. In this peculiar circumstances no order as to cost." The concerned Court observes that the petitioner is a tenant in the property and to measure the suit schedule property, in which, he is a tenant, there need not be an appointment of Court Commissioner. 6. It is trite law that an application under Order XXVI Rule 9 read with Section 151 of C.P.C. should not be entertained to create evidence, it is only when the Court entertains certain obfuscation with regard to identification of the property, the applications are necessary to be considered. The concerned Court has by reasons that are cogent, rejected the application. There is no perversity in the order for this Court to entertain the petition under Article 227 of the Constitution of India. - 7 - HC-KAR NC: 2025:KHC:18766 WP No. 11124 of 2025 With the aforesaid observations, the writ petition is dismissed. Sd/- (M.NAGAPRASANNA) JUDGE SJK List No.: 1 Sl No.: 20