- 1 - HC-KAR NC: 2025:KHC:19125 WP No. 15426 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. 15426 OF 2025 (GM-CPC) BETWEEN: 1. SRI. UDAY KUMAR S/O DUGGEGOWDA. AGED ABOUT 51 YEARS. R/AT: NEEKANAHALLI DAKALLE DEVALADAKERE VILLAGE AND POST, HANUBALU HOBLI, SAKALESHPURA TALUK, HASSAN DISTRICT - 577001. …PETITIONER (BY SRI. G.V. NARASIMHA MURTHY, ADVOCATE) AND: 1. SRI. VIJAY KUMAR S/O LATE BUKKEGOWDA, AGED ABOUT 62 YEARS, NEEKANALLI DAKALLE DEVALADAKERE VILLAGE AND POST, HANUBALU HOBLI, SAKALESHPURA TALUK. HASSAN DISTRICT-577001. …RESPONDENT Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:19125 WP No. 15426 of 2025 THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO A. TO SET ASIDE THE ORDER DATED.17/04/2025 ON I.A.NO.VIII IN O.S.NO.35/2021 PENDING ON FILE OF THE HONBLE SENIOR CIVIL AND JMFC AT SAKALESHPURA, HASSAN DISTRICT AT ANNEXURE-D AND PLEASED TO ALLOW THE I.A.NO.VIII AS PRAYED AND ETC. 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 petitioner-plaintiff is before this Court calling in question an order dated 17.04.2025, by which, the concerned Court in O.S.No.35/2021, rejects an application filed by the petitioner-plaintiff under Order XXVI Rule 9 read with Section 151 of the C.P.C., seeking appointment of a Court Commissioner to identify the suit schedule property. 2. Heard Sri. G.V. Narasimha Murthy, learned counsel appearing for the petitioners and have perused the material on record. 3. Facts adumbrated are as follows:- The petitioner is the plaintiff, who claims to be the absolute owner of the suit schedule property and has perfected - 3 - HC-KAR NC: 2025:KHC:19125 WP No. 15426 of 2025 his title by way of adverse possession since he has been in possession from 11.07.1977. A suit comes to be filed as aforesaid against the defendant, seeking the following relief: "A. The plaintiff prays for judgment and decree against the defendants & in his favor, declared as the owner in possession over the schedule property by way of adverse possession as he is in actual possession against the true owner and his title, has been perfected by way of adverse possession over the schedule property. B. Injunction restraining the defendant, or his men, or their subordinate or, his contractors, or any other persons not to dismantle the house or not to indulge with suit property in any manner or whatsoever alienate the suit property." 4. In the proceedings, the petitioner-plaintiff files an application seeking appointment of a Court commissioner by an application filed under Order XXVI Rule 9 read with Section 151 of the CPC. The concerned Court, in terms of its order as aforesaid, rejects the application of the plaintiff on two grounds; one that the suit is at the stage of arguments and there is no confusion with regard to the identification of the property. The concerned Court also notices that the earlier suit with regard to the land in O.S.No.93/1982 was disposed on the basis of a report of a Commissioner that was the suit of third party and that cannot be relied on in the subject suit again - 4 - HC-KAR NC: 2025:KHC:19125 WP No. 15426 of 2025 to demand that Survey No.136/2, which measures about 4 acres in 14.8 guntas would again become the subject matter of a report by the Commissioner. The concerned Court answers the same as follows: "10. The suit is at the stage of arguments. At this stage the present application is filed by the plaintiff to appoint ADLR as a Court Commissioner for local inspection of the suit schedule property and to submit the report. The said application is objected by the defendant on the ground that the plaintiff has constructed house and shed in the suit schedule property with his permission. It is to be seen that the plaintiff has filed the suit for declaration to declare that he is the absolute owner of the suit schedule property by way of adverse possession. It is not in dispute that the land in Sy.No. 136/2 is totally measuring 4 acres 14.8 gutnas. As per the plaint schedule the plaintiff said to have constructed house, firewood shed, godown, well and drying yard in the suit schedule property is said to be situated in a land measuring 3½ guntas of land in Sy.No.136/2. According to the plaintiff he has perfected his title over the suit schedule property by way of adverse possession. According to the defendant the said land belongs to him and he is an absolute owner as the same is constructed with his permission. Whether the plaintiff has perfected his title over the suit schedule property by way of adverse possession or not as contended by the plaintiff and whether it is the exclusive property of the defendant is a matter to be adjudicated after trial. As contended by the defendant when he is not denying the construction of house and shed as mentioned in the suit schedule property, the question of appointing the ADLR, Sakaleshpura as a Court Commissioner to inspect and know the actual facts of the structure of the suit schedule property does not arise. Hence for the above said reasons this court held that the plaintiff has not made out any reasonable grounds for appointing ADLR as a Court Commissioner and to submit the report. Hence for the above said reasons this court answered point No.1 in the Negative. - 5 - HC-KAR NC: 2025:KHC:19125 WP No. 15426 of 2025 POINT No.2: 11. In view of the above reasons, this court proceed to pass the following: ORDER I.A.No.VII filed by the plaintiff U/O XXVI Rule 9 R/W Section 151 of CPC is hereby dismissed." 5. In the light of the Court not entertaining any doubt about the existence of the property in Survey No.136/2 with regard to 3 1/2 of guntas of land, where the plaintiff is said to have constructed a shed and that being not denied by the defendant, there was no warrant for the concerned Court to appoint a Commissioner, as sought for, by the petitioner. 6. The order does not suffer from any such perversity, which would entail entertainment of the petition under Article 227 of the Constitution of India. In that light, the petition stands rejected. Sd/- (M.NAGAPRASANNA) JUDGE SJK List No.: 1 Sl No.: 15