- 1 - NC: 2025:KHC:4527 WP No. 13820 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 13820 OF 2020 (GM-CPC) BETWEEN: SRI.SRINIVASA AGED ABOUT 55 YEARS, S/O SRI BOREGOWDA, R/AT NO.133, HOSA BEEDI KUMBARA KOPPAL MYSURU - 570 016 …PETITIONER (BY SRI.Y.N.PRAKASH, ADVOCATE FOR SRI.Y.K.NARAYANA SHARMA, ADVOCATE) AND: 1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, M.S.BUILDING, DR. AMBEDKAR VEEDHI BANGALORE - 560 001. 2. THE DEPUTY COMMISSIONER MYSORE DISTRICT MYSORE - 570 001. 3. THE TAHSILDAR MYSORE TALUK MYSURU - 570 001. …RESPONDENTS (BY SRI.BASAVARAJ GODACHI, ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED: 13.11.2020 PASSED ON IA NO.25 IN O.S.NO.325/2011 BY THE COURT OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC MYSURU AS PER ANNEXURE-F AND ALLOW THE SAID APPLICATION SEEKING APPOINTMENT OF COMMISSIONER. Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:4527 WP No. 13820 of 2020 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed in I.A.No.25 in O.S.No.325/2011 dated 13.11.2020 by the IV Additional I Civil Judge and JMFC, Mysuru, the petitioner/plaintiff is before this Court. 2. The plaintiff had filed the suit seeking declaration that the Impugned Communication dated 24.01.2011 is illegal, null and void and not enforceable and to further declare that the plaint schedule property is situated within Survey No.152 of Hebbal Village, Mysore Taluk and also sought for consequential relief of permanent injunction against the defendants. It is the case of the plaintiff that he has been in occupation of the property based on an unregistered sale deed dated 25.08.1984 and ever since he has been in possession of the property. One Siddegowda sold the revenue site in favour of one Gowramma through an unregistered sale deed dated 25.08.1984 and put her in possession of the property. Then Gowramma sold the property in favour of the plaintiff through an unregistered sale - 3 - NC: 2025:KHC:4527 WP No. 13820 of 2020 deed dated 10.01.1995 and put the plaintiff in possession of the property and ever since, the plaintiff is in peaceful possession and enjoyment of the property. The officials of Mysore City Corporation, Mysore issued a notice to the plaintiff on 09.03.2010 stating that the property in Survey No.152 is Government property and the plaintiff is making illegal construction. At the time when the notice came to be issued, the construction of the building was already completed and the plaintiff was in occupation of the schedule property. The plaintiff was asked to stop the construction. It is also the case of the plaintiff that except the plaintiff, no action was taken against any other occupants in Survey No.152. The petitioner/plaintiff had issued suitable reply and there was no communication in writing from the Mysore City Corporation. Then he has filed the suit for declaration i.e., O.S.No.719/2010 and the same is pending. Thereafter, the present suit came to be filed questioning the order passed by the respondent stating that the plaint schedule property is outside Survey No.152 of Hebbal Village. As such, the plaintiff has come up with the present suit. - 4 - NC: 2025:KHC:4527 WP No. 13820 of 2020 3. At the stage of arguments, the present I.A.No.25 is filed under Order 26 Rule 9 read with Section 151 of CPC seeking appointment of Court Commissioner to identify with the help of boundary stones in the entire property bearing Sy.No.152 of Hebbala Village, Kasaba Hobli, Mysuru Taluk, measuring 1 acre 25 guntas and draw mahazar report regarding the present status of the property. It is the case of the plaintiff that the entire property is situated within Sy.No.152 of Hebbal Village and according to the defendants, it is outside Sy.No.152. As per the plaintiff, if a proper survey is conducted, true facts will come to light. 4. The trial Court by order impugned had rejected the application. While rejecting the application, the trial Court had observed that scope of Order 26 Rule 9 of CPC is very limited. The Court in any suit in which a local investigation is required or proper for the purpose of elucidation any matter of dispute may appoint a Commissioner. It is settled law that the parties are required to prove their own case by way of evidence. Therefore, it is the duty of the plaintiff/defendant to first give evidence in support of their case. After the evidence of parties, if the Courts deems it proper that any issue requires - 5 - NC: 2025:KHC:4527 WP No. 13820 of 2020 clarification then the Court may appoint Court Commissioner. It is also settled that the details so required by the Court ought to be such that in their absence, determination of issues in dispute cannot be effectively adjudicated upon necessity of the appointment of Commissioner on its own or at the instance of either of the parties. Where the Court is of the opinion that the matter in dispute would be effectively adjudicated on record, the Court at its discretion can refuse to direct appointment of the commissioner. The Court observed that in this case, the parties have adduced oral and documentary evidence before the Court and the case is set down for arguments on merits. The trial Court has opined that the documents available on record are sufficient to dispose of the suit effectively and no doubt if there is any dispute regarding identification of property, the Court can assist the Court Commissioner. The trial Court observed that there is no dispute regarding the identification of the property. The plaintiff assets his right, title and possession on the basis of the unregistered sale deed and the plaintiff is required to prove his own case by way of evidence. Both the parties have produced the Revenue sketch and Village Map pertaining to the property in dispute and those - 6 - NC: 2025:KHC:4527 WP No. 13820 of 2020 documents are sufficient to dispose the case effectively. When the suit is filed seeking declaration and injunction, the burden lies on the plaintiff to prove the title, possession and interference and on these reasoning, the trial Court had rejected the application. 5. Learned counsel appearing for the petitioner/plaintiff submits that when the whole dispute is about the encroachment and that the petitioner's property is situated within Sy.No.152 and it is a government land and it is the case of the plaintiff that his property is a private property. Unless and until the surveyor is appointed and the land is surveyed, the Court will not be in a position to adjudicate the dispute between the parties. It is submitted that the appointment of commissioner is very much essential. He submits that the trial Court ought to have appointed the commissioner. He relied on para No.21 of the judgement of this Court in case of Shadaksharappa Veranna V.Kumar Vs. Vijayalaxmi1 and submits that the appointment of surveyor is very much necessary in the facts and circumstances of the case and the trial Court ought to have allowed the application. 1 2023 (2) AKR 305 - 7 - NC: 2025:KHC:4527 WP No. 13820 of 2020 6. Learned counsel appearing for the respondents submits that the trial Court had rightly considered the application and the fact that all the material is before this Court and the matter is set down for arguments and the Court held that the appointment of commissioner is not necessary. The trial Court had rightly dismissed the applications and no grounds are made out seeking interference of the said order. 7. Having heard the learned counsels on either side, perused the entire material on record. No doubt the whole dispute is with regard to the survey numbers. According to the petitioner, it is his property and according to the government, the plaintiff had encroached the property belonging to the government and made the construction. It is a suit for declaration and injunction. Both the parties have let in their oral and documentary evidence. Initially, the party who comes to the Court has to prove their case by adducing evidence and when it is necessary for adjudicating the dispute between the parties, appointment of a Commissioner is required, the Court suo moto or at the instance of the parties can appoint the commissioner. A perusal of the order shows that the Court is conscious of the procedure where an advocate Commissioner - 8 - NC: 2025:KHC:4527 WP No. 13820 of 2020 has to be appointed and the Court had elaborately discussed the facts and circumstances of the case and has come to the conclusion that the case can be decided basing on the merits and at this stage, appointment of advocate commissioner is not required. In the considered opinion of this Court, the observations of the trial Court are well founded and no interference is called for. Hence, this Court is passing the following order: ORDER i. Accordingly, the writ petition is dismissed. ii. All I.As. in this writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 12