- 1 - HC-KAR NC: 2025:KHC:23903 W.P. No.31023/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.31023/2019 (GM-CPC) BETWEEN: 1. SRI. ASHOK V. AMBERKER S/O VIRUPANNA P. AMBERKER AGED ABOUT 56 YEARS CLOTH MERCHANT R/O NO.1715/1 AND 2, 21ST MAIN, 5TH CROSS, M.C.C BLOCK, B-BLOCK DAVANAGERE-577 004. 2. SRI. PRAJWAL A. AMBERKER S/O ASHOK V. AMBERKER AGED ABOUT 31 YEARS CLOTH MERCHANT R/O NO.1715/1 AND 2, 21ST MAIN, 5TH CROSS, M.C.C. BLOCK B-BLOCK DAVANAGERE-577 004. 3. SRI. PRATEEK A. AMBERKER S/O ASHOK V. AMBERKER AGED ABOUT 26 YEARS CLOTH MERCHANT R/O NO.1715/1 AND 2, 21ST MAIN, 5TH CROSS, M.C.C. BLOCK, B-BLOCK DAVANAGERE-577 004. …PETITIONERS (BY SRI. R. GOPAL, ADV.,) AND: SRI. V.K. AMARNATH S/O K.S. VITTAL LANDLORD Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:23903 W.P. No.31023/2019 R/O NO.72/1, SRI RANGA 2ND MAIN, P.J. EXTENSION DAVANAGERE-577 004. …RESPONDENT (BY SMT. HEENA S.A. ADV., FOR SRI. SANTHOSH S. GOGI, ADV.,) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE ORDER DTD:1.7.2019 PASSED ON I.A.NO.8 IN O.S.NO.190/2016 VIDE ANNEXURE-A PASSED BY THE COURT OF II ADDL. SENIOR CIVIL JUDGE AND JMFC AT DAVANAGERE AND CONSEQUENTLY ALLOW AND GRANT THE RELIEFS PRAYED FOR IN I.A. NO.8 VIDE ANNEXURE-D & 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 the following relief: "Quashing the order dated 01.07.2019 passed on I.A.No.8 in O.S.No.190/2016, vide Annexure-A passed by the court of II Addl. Senior Civil Judge and JMFC at Davanagere and consequently allow and grant the reliefs prayed for in I.A.No.8 vide Annexure-D." 2. Sri.R.Gopal, learned counsel for the petitioners submits that the petitioners have filed the suit for declaration of title, possession and mandatory injunction against the respondent-defendant contending that the respondent has encroached the suit schedule 'B' property, which is shown in - 3 - HC-KAR NC: 2025:KHC:23903 W.P. No.31023/2019 the sketch annexed to the plaint. It is submitted that the respondent, in the written statement, has denied the encroachment and claimed that the suit schedule properties and the respondent's property are distinct, thus, the question of encroachment would not arise. The same stand has come in the evidence of the respondent-defendant. 3. It is further submitted that the petitioners have filed an application for appointment of City Surveyor as Court Commissioner for local inspection to measure the suit schedule property and the adjacent property to find out the encroachment. The trial Court rejected the said application on the ground that there is sufficient material on record to decide the dispute between the parties and also in the earlier suit filed by the petitioners, an application for appointment of Court Commissioner was allowed and the Court Commissioner's report indicates that there is no encroachment. It is submitted that the suit filed by the petitioners on earlier occasion is different and the cause of action in both the suits are distinct, hence, rejection of the application is incorrect. In support of his contention, he has placed reliance on the following decisions: - 4 - HC-KAR NC: 2025:KHC:23903 W.P. No.31023/2019 i. N.Swamygowda vs. Ramegowda and others1 ii. Sri.Shadaksharappa vs. Kumari Vijayalakshmi and others2 4. Per contra, Smt.Heena S.A., learned counsel for the respondent supports the impugned order of the trial Court and submits that the trial Court considering the material on record has rightly recorded the finding that there is sufficient evidence on record to decide the issue between the parties and also that the earlier Court Commissioner has given the report that there is no encroachment. It is submitted that the petitioners have acquired the right over the suit schedule properties in the year 1982. Later in the year 2002, the suit came to be filed against the City Municipality, Davanagere, alleging that they have encroached the same property, which came to be dismissed and the said order has attained finality and in the said suit, the report of the Commissioner indicates that there is no encroachment and in the case on hand also, the property is one and the same. Hence, the question of appointment of Court 1 ILR 2010 KAR 897 2 ILR 2023 KAR 3983 - 5 - HC-KAR NC: 2025:KHC:23903 W.P. No.31023/2019 Commissioner would not arise. Hence, she seeks to dismiss the petition. 5. I have heard the learned counsel petitioners, learned counsel for the respondent and perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 6. The petitioners have filed O.S.No.190/2016 seeking the relief of declaration of ownership over the suit schedule property, mandatory injunction against the respondent seeking to remove the foundation and other super structures, if any, constructed in the suit 'B' schedule property and further for permanent injunction restraining the respondent from interfering with the suit 'B' schedule property. 7. The respondent has filed a detailed written statement denying the averments made in the plaint. The respondent, at paragraph Nos.24 & 25 of the written statement, has specifically denied that they have not encroached the schedule 'B' property as claimed by the petitioners. It is the contention of the respondent that the - 6 - HC-KAR NC: 2025:KHC:23903 W.P. No.31023/2019 topography of schedule 'B' property and the property of the respondent shown in his schedule along with the written statement are different and distinct. The parties of the proceedings adduced evidence and when the matter was posted for arguments, the petitioners have filed an application under Order XXVI Rule 9 read with Section 151 of CPC seeking to appoint the City Surveyor as Court Commissioner for local inspection to measure the suit schedule property and adjacent properties to identify the encroached area by the respondent. 8. The said application was opposed by the respondent mainly on the ground that the suit schedule properties and the respondent's property are distinct and in the earlier suit filed by the petitioners, Court Commissioner was appointed and he has given the report that there is no encroachment, hence, it is not necessary to appoint Court Commissioner. The trial Court, considering the same, rejected the application. The primary contention of the petitioners in the plaint is that the petitioners are seeking the prayer of declaratory relief with regard to the suit schedule properties and also seeking mandatory injunction against the respondent-defendant that he has encroached the - 7 - HC-KAR NC: 2025:KHC:23903 W.P. No.31023/2019 suit schedule 'B' property, which is shown specifically as EFGH in the sketch annexed to the plaint. The schedule 'B' property is a smaller property and the schedule 'A' property which is claimed by the petitioners as owners is the larger property. A specific assertion is made by the petitioners-plaintiffs in the plaint that the respondent-defendant has encroached the schedule B property. The aspect of encroachment or otherwise as pleaded and deposed in the evidence is required to be ascertained factually by measuring the property by the expert in the field. 9. This Court in the case of Sri.Shadaksharappa referred supra, has held that the appointment of Court Commissioner should be generally entertained only after the conclusion of the trial and in the instant case, the petitioners have rightly filed an application after the trial is over, hence, in my considered view, the trial Court has committed an error in rejecting the application on the ground that on the previous occasion, the Court Commissioner's report was secured. 10. Admittedly, the said report of the Court Commissioner is not part of the document in the pending suit - 8 - HC-KAR NC: 2025:KHC:23903 W.P. No.31023/2019 and as the said Commissioner report is not marked and nor produced and this Court also cannot lose sight of the fact that the cause of action to the present suit and the suit in O.S.No.181/2002 are distinct and the relief and the pleading are altogether different. In the previous suit, the petitioners have specifically made an assertion that towards the western side of the petitioners-plaintiffs' property there is an encroachment and now in the present suit the petitioners are asserting that there is encroachment as per the sketch annexed to the plaint. In my considered view, rejection of the application by the trial Court on the ground that the earlier Court Commissioner's report does not indicate the encroachment is perverse and incorrect. This Court in the case of N.Swamygowda referred supra by considering the law on point, held that if there is a serious dispute with regard to the area and the boundaries of the land in question, the non appointment of Court Commissioner would result in serious miscarriage of justice. Further, the Court Commissioner's report is the best evidence to find out whether there is an encroachment or not in the absence of non-admission by one of the parties to the proceedings. Keeping in mind the aforesaid - 9 - HC-KAR NC: 2025:KHC:23903 W.P. No.31023/2019 enunciation of law laid down by this Court, I am of the considered view that the application filed by the petitioners deserves to be allowed. Hence, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 01.07.2019 passed on I.A.No.8 in O.S.No.190/2016 by the II Additional Senior Civil Judge & JMFC, Davanagere, is hereby set aside. Consequently, said I.A.No.8 is allowed. iii. The trial Court is directed to appoint the jurisdictional surveyor as the Court Commissioner to measure the suit schedule property and adjacent property and identify the encroachment, if any, as alleged in the plaint. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 34