- 1 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 12431 OF 2025 (GM-CPC) BETWEEN: SRI.H.S. SUBBARAYA SASTRY SINCE DEAD BY HIS LRS 1. SMT.H.S.JANAKI, D/O LATE H.S.SUBRAMANYA SASTRY, W/O SRI.CHANDRASHEKAR, AGED ABOUT 50 YEARS, R/AT DOOR NO.50, 4TH CROSS, CHAMARAJPET, NAGENDRA COLONY, 5TH MAIN ROAD, BANGALORE-560018. 2. SRI.CHANDRASEKHAR, S/O LATE RAMASUBBAMMA, AGED ABOUT 60 YEARS, R/AT DOOR NO.50, 4TH CROSS, CHAMARAJPET, NAGENDRA COLONY, 5TH MAIN ROAD, BANGALORE-560018. 3. SMT.MEENAKSHI, D/O LATE.H.N.SUBBARAYASASTRY, AGED ABOUT 30 YEARS, R/AT MP/242, 9TH MAIN, 2ND CROSS, MATHIKERE, BANGALORE. 4. SRI.H.S.KRISHNAMURTHY, S/O LATE H.S.SUBBARAYA SASTRY, AGED ABOUT 61YEARS, R/AT HUDUKULA VILLAGE, Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 KASABA HOBLI, BANGARPET TALUK, KOLAR DISTRICT. 5. SRI.H.S.SHANKAR, S/O LATE H.S.SUBBARAYA SASTRY, AGED ABOUT 57 YEARS, R/AT HUDUKULA VILLAGE, KASABA HOBLI, BANGARPET TALUK, KOLAR DISTRICT. 6. SRI.H.S.MURALI, S/O LATE H.S.SUBBARAYA SASTRY, AGED ABOUT 55 YEARS, R/AT, HUDUKULA VILLAGE, KASABA HOBLI, BANGARPET TALUK, KOLAR DISTRICT. …PETITIONERS (BY SRI. A MADHUSUDHANA RAO., ADVOCATE) AND: 1. SRI.H.S. ASWATHANARAYANA SASTRY, S/O LATE H.N. SUBRAMANYA SASTRY, AGED ABOUT 83 YEARS, R/AT NEAR BRIGHT FLOOR MILL, 1ST MAIN, 1ST CROSS, HEBBALA KEMPAPURA, BANGALORE. 2. SRI.H.A. VENKATESH, S/O LATE H.N.ASWATHANARAYA SASTRY, AGED ABOUT 64 YEARS, R/AT NEAR BRIGHT FLOOR MILL, 1ST MAIN, 1ST CROSS, HEBBALA KEMPAPURA, BANGALORE AND ALSO AT HUDUKULA VILLAGE, KASABA HOBLI, BANGARPET TALUK, KOLAR DISTRICT. - 3 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 3. SRI.H.A.NARAYANA SASTRY, S/O LATE.H.N.ASWATHANARAYA SASTRY, AGED ABOUT 62 YEARS, R/AT HUDUKULA VILLAGE, KASABA HOBLI, BANGARPET TALUK, KOLAR DISTRICT. …RESPONDENTS (BY SRI.GANESH, ADVOCATE FOR C/R2) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH IMPUGNED ORDER DT.12.03.2025 PASSED BY THE 1ST ADDL CIVIL JUDGE, BANGARPETE, ON I.A.NO.19 IN O.S.NO.194/2008 FOUND AT ANNEXURE-P, ALLOW THIS WRIT PETITION WITH COSTS AND GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioners are defendants in O.S.No.194/2008. They are at the doors of this Court calling in question an order passed by the concerned Court allowing an application filed under Order XXVI Rule 9 of the Code of Civil Procedure directing appointment of Court Commissioner to bring out the measurement and the exact location of the property. - 4 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 2. Heard Sri.A.Madhusudhana Rao, learned counsel appearing for the petitioners and Sri.Ganesh, learned counsel appearing for respondent No.2. 3. Facts in brief germane are as follows: (a) The respondents-plaintiffs institutes O.S.194/2008 on 06.08.2008 seeking a relief of declaration and permanent injunction against defendants. Due to erroneous valuation, it transpires that the plaintiffs deletes the prayer of declaration and retains the prayer of permanent injunction against the defendants and brings in an amended plaint, having filed it on 22.09.2017, after which the issues have been framed by the concerned Court and the trial is on. (b) What has driven the defendants-the petitioners to this Court is not the merit of the suit, but an application filed by the respondents in I.A.No.19 under Order XXVI Rule 9 of the Code of Civil Procedure, seeking appointment of a Commissioner to ward of obfuscation that is generated before the concerned Court. The defendants filed their objection to the aforesaid application. The concerned Court allows the - 5 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 application and directs appointment of a Commissioner to measure the property which forms the part of a particular release deed. (c) The learned counsel Sri.A.Madhusudhana Rao appearing for the petitioners would vehemently contend that the suit is of the year 2008 and at its fag end, the application is filed under Order XXVI Rule 9 of the Code of Civil Procedure and it has been allowed erroneously. According to the learned counsel, there is no confusion with regard to the property as there is admission by PW.1 that the subject property is not a part of the release deed, as is averred in the plant itself. He would take this Court through the evidence of PW.1, to buttress his submission with regard to the fact that the suit schedule property does not form part of the release deed. The learned counsel would thus submit that the order impugned allowing the application filed under Order XXVI Rule 9 of the Code of Civil Procedure, is erroneous and contrary to the evidence. (d) Per contra, the learned counsel Sri.Ganesh, appearing for the respondent No.2 would refute the submission again taking this Court through the evidence and the plaint - 6 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 averments to contend that there is serious dispute with regard to the location of the property as the release deed mentions a rice mill and to verify the boundaries, it was necessary for the Court to appoint a Court Commissioner. The learned counsel would further contend that it is for the Court to ward of the confusion that has generated in the evidence, Court Commissioner is appointed, and there is no prejudice that would be caused to the petitioners if the property would be identified and the suit is taken to its logical conclusion on such identification. 4. I have given my anxious consideration to the submissions made by learned counsel for the parties and have perused the material on record. 5. The afore narrated facts are a matter of record. They would not require any reiteration. What has driven the petitioners-defendants to this Court is the order allowing the application filed under Order XXVI Rule 9 of the Code of Civil Procedure. - 7 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 6. I deem it appropriate to notice the plaint and the Written Statement for the purpose of considering the submissions made by the learned counsel for the petitioners. The plaint averment and the schedule in the plaint is as follows: "3(a) The plaintiff humbly submit that earlier old survey was 152/4. After inam abolition proceedings, the said old survey number was resurveyed and was given survey number 292/3 extent 28 guntas. After alienation proceedings, the said survey number 292/3 was given hissa number as 3/A, extent 6 guntas, 3/B 6 guntas and 3/C extent 17 guntas as per settlement akarbandh which was later converted into sites. The 2nd plaintiff humbly submit that his father Aswathnarayanashastri got released from his father H.N.Subramanyashastri, by executing release deed dt 21.8.79. Since the said survey number 292/3 extent 28 guntas was already converted into vacant site, the said survey number was not mentioned in the said release deed. The 2" plaintiff humbly submit that v.p. katha no 231 to 235 of the suit vacant site is standing in his name with respect to the suit property and he is in possession of the same." "SCHEDULE Survey No.292/3 extent 28 guntas, assesses at Rs.1-05 paise, situated at Hudukula Village, Kasaba Hobli, Bangarpet Taluk which consists of vacant site bearing v.p.katha no 231 to 235 and also half portion of stone roofed and half portion of Mangalore tiled roofed house with Niligiri trees and other trees and the same is bounded on the East by House and vacant site of Subbaraya Shastry West by land of B.S.Murthy and land of Achamma, North by land of H.M. Venkatesh shastry and south by Kolar-Bangarpet Main Road." The Written Statement filed by the present petitioners- defendants is inter alia as follows: - 8 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 "The suit schedule survey number 292/3, 28 guntas is belongs to the defendants and the plaintiff has not properly given the boundaries and the survey number 292/3 bounded on East-road, and then defendants, house and vacant site and Primary Health Centre and School field, West- A.G. Shivashankar, K.R. Narasimha Shastry's property and Kolar-Bangarpet road, North Rajakaluve and Anjanappa's land and South-School field, in which there is only one stone roofed cattle shed, which measures 13 x 24 ½ ft and there is no tile roofed house and only walls which measures 12 ¾ x 24 ½ ft, but there is no any Mangalore tiled roofed house as stated in the plaint and only two Nilgiri trees on the bund of North and East. Hence suit is liable to be dismissed for want of proper identity." 7. The learned counsel for the petitioners would place heavy reliance upon the evidence of PW.1 who admits that the property in the release deed does not form a part of Sy.No.292/3. There can be no qualm about the said admission as it is a matter of fact. The plaintiffs then files an application under Order XXVI Rule 9 of CPC seeking appointment of the Commissioner. The concerned Court by its order allows the same. It is germane to notice the reason, so rendered by the concerned Court. "11. Point No.1:- This court is dealing with the plaintiff's application for the appointment of a court commissioner to ascertain the existence and identity of item No. 3, described as the "Rice Mill property," as detailed in a registered Release Deed dated August 21, 1979. The said application came to be filed when the case was posted for arguments on merits. - 9 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 12. Upon perusal of the pleadings on record it appears that, the central issue is the discrepancy between the property description in the Release Deed lacking survey/khata numbers but containing boundary details, which is contested by the defendants. 13. The plaintiff's case hinges on the interpretation of the Release Deed and the physical identification of the "Rice Mill property" within the boundaries specified therein. The defendants no doubt deny the release deed but their denial of the property's existence necessitates a factual determination of its (item No.3) physical presence and its correlation with the Release Deed. 14. While it is true that a Court Commissioner should not be appointed to collect evidence in a suit, but it is equally true that it is not the nature of suit which is the guiding factor for allowing the application seeking appointment of Court Commissioner rather it is the facts and circumstance of each case. The purpose of a commissioner in this case is not to create new evidence but to clarify existing factual disputes relating to the physical identification and boundary demarcation of the property more particularly item No.3 as described in the release deed. 15. Despite the defendants' objections, the Court finds that the appointment of a Court Commissioner is necessary to resolve the factual disputes and ensure a just decision. The commissioner's report will not only assist the court in determining the physical identity of Item No. 3 as described in the Release Deed but also in resolving the boundary disputes between the parties. 16. This Court acknowledges the admission by PW1 regarding survey number 292/3. However, this does not preclude the Court from investigating the physical existence and boundaries of the property as described in the Release Deed. As Order XXVI, Rule 9 of the Code of Civil Procedure, 1908, empowers the Court to issue a commission for local investigation where it deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute. The fact that evidence has been completed does not bar the court from appointing a commissioner if it deems it necessary for - 10 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 elucidating factual disputes. The commissioner's report will not create new evidence but will clarify existing factual discrepancies. 17. The commissioner’s role would be to ascertain the existence of the Rice Mill, verify the boundaries described in the Release Deed, check the conversion of the land to nonagricultural use, assess the subdivision of the land, ascertain if any certificate of existence, or any other official document pertaining to the operation of a rice mill existed at the location and verify the existence of the power supply connection. The commissioner shall thus investigate and report on the physical existence of the "Rice Mill property" at the location as per the boundaries in the Release Deed. It is pertinent to note that, the appointment of a Court Commissioner is not meant to gather evidence to further the plaintiff’s case but to assist the Court in resolving a critical issue of fact that neither party can independently resolve at this stage. In the light of discussion made herein above the application filed by the plaintiff deserves to be allowed. Hence, I answer Point No.1 in the Affirmative. 18. Point No.2:- In view of the discussion made above, I proceed to pass the following:- O R D E R The I.A. No.19 U/O XXVI Rule 9 of CPC filed by the plaintiff is allowed. The PDO is hereby appointed by the Court Commissioner. The PDO shall carry out the commissioner with the assistance of Taluka Surveyor. The Court Commissioner shall: 1. Measure the suit schedule property more particularly item No.3 property mentioned in the release deed i.e., Rice Mill. 2. Note down the existence and situation of aforesaid Rice Mill at the spot. - 11 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 3. Prepare a rough sketch of the properties and indicate the existing boundaries. 4. Conduct the commission work only after due notice of the same to the parties. 5. Draw a Mahazar in respect of execution of Commission work. The commissioner fee is tentatively fixed at Rs.2,000/- which shall be payable by the plaintiff. The parties are directed to file memo of instructions (2 copies) on next date of hearing, if any. For: Memo of instructions and Commissioner fee." 8. The submission of the counsel for the petitioners also bears consideration by the concerned Court while allowing the application seeking appointment of a Court Commissioner. The concerned Court notices that PW.1 has acknowledged qua Sy.No.292/3 that it does not form a part of the release deed. The concerned Court has rightly held that it does not preclude the Court from appointing a Court Commissioner to verify the property even in a suit for permanent injunction. If the Court entertains or comes across certain obfuscation with regard to the identification of the property which can be deciphered only by report from the hands of the Commissioner, it would be well within its power to allow such application and appoint a Commissioner. - 12 - HC-KAR NC: 2025:KHC:19247 WP No. 12431 of 2025 9. Learned counsel for the petitioners at this juncture would seek leave of this Court to permit them to place on record additional memo of instructions, if needed. The said submission would merit acceptance and the petitioners are permitted to file additional memo of instructions on the receipt of the report of the Commissioner, if needed. Finding no merit in the petition, the petition stands rejected. Since the suit is of the year 2008 and 17 years have passed by, I deem it appropriate to direct the concerned Court to dispose the suit on its merit within an outer limit of four months from the date of receipt of the copy of this order. Sd/- (M.NAGAPRASANNA) JUDGE CBC List No.: 1 Sl No.: 8