- 1 - NC: 2025:KHC:13533 WP No. 51835 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO. 51835 OF 2019 (GM-CPC) BETWEEN: 1. MISS. JULIANA D'SOUZA DEAD BY HER LR. SRI. AJITH COELHO S/O LATE MARCELINE COELHO AGED ABOUT 63 YEARS R/AT "JULIET VILLA" ASHOKNAGAR MANGALURU-575 006 (DK). …PETITIONER (BY SRI. M. SUDHAKAR PAI, ADVOCATE) AND: 1. MRS. ELIZABETH MERY D'SOUZA AGED ABOUT 71 YEARS 2. PRAKASH JESSY D'SOUZA AGED ABOUT 49 YEARS 3. OLWYN D'SOUZA AGED ABOUT 47 YEARS 4. DIANA D'SOUZA AGED ABOUT 46 YEARS Digitally signed by H K HEMA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13533 WP No. 51835 of 2019 5. SUJATHA D'SOUZA AGED ABOUT 44 YEARS RESPONDENT NO.(1) IS THE WIFE AND RESPONDENTS NOS.2 TO 5 ARE THE CHILDREN OF LATE LAWRENCE D'SOUZA R/AT LAWRENCE COMPOUND ALL ARE R/AT LAWRENCE COMPOUND URVA STORES, ASHOK NAGAR MANGALURU-575 006 (DK). …RESPONDENTS (BY SRI O. SHIVARAMA BHAT, ADV. FOR R1, R2, R3 & R5; R4-NOTICE HELD SUFFICIENT VIDE COURT ORDER DATED 05.03.2021) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 07.11.2019 ON I.A.NO.V IN R.A.NO.69/2008, ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM., MANGALURU, D.K. (VIDE ANNEXURE-G TO THE WRIT PETITION); ETC. THIS PETITION, COMING ON FOR ORDERS, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.I.ARUN - 3 - NC: 2025:KHC:13533 WP No. 51835 of 2019 ORAL ORDER Aggrieved by the order dated 07.11.2019 passed on I.A.No.V filed under Order 26 Rule 9 read with Order 41 Rule 27 CPC requesting the Court to appoint a Court Commissioner in R.A.No.69/2008 on the file of Principal Senior Civil Judge & CJM, Mangaluru, D.K., the appellant therein has preferred this writ petition. The petitioner filed O.S.No.1204/1992 before 1st Addl. Civil Judge, Mangaluru with the following prayers: "IX. The Plaintiff therefore prays for a decree and judgment against the defendants for the following:- (1) For a mandatory injunction directing the Defendants to remove the western compound put to their property in R.S.No.40/4 of Boloor Village, Mangalore Taluk shown as B2, C2, D2 and E2 shown in the said Plan to its original width of 12 ft. within the time to be fixed by this Court and on their failure to do so, to get the same done through process of this Court at the cost of the Defendants. The relief is valued at Rs.1000/- under Section 26(c) of Karnataka Court Fee Act and a court fee of Rs.100/- is paid thereon. (2) For permanent prohibitory injunction restraining the Defendants, their men, servants and anyone claiming under or through them from putting up any obstruction across the pathway shown as 'Kani and - 4 - NC: 2025:KHC:13533 WP No. 51835 of 2019 Oni' in the annexed Plan or any part thereof, in R.S.No.40/4 of Boloor Village, Mangalore Taluk. This relief is valued at Rs.1000/- under Section 26(c) of Karnataka Court Fee Act and a court fee of Rs.100/- is paid thereon. (3) For cost of this suit etc. (4) For such other and further reliefs as this court deems fit to grant under the circumstances." 2. The said original suit came to be dismissed. Aggrieved by the same, petitioner preferred R.A.No.69/2008. During the pendency of R.A.No.69/2008, petitioner sought to amend the plaint, which was rejected by the First Appellate Court. Against the said order, petitioner preferred Writ Petition No.32467/2015 (Annexure-B), wherein, the amendment sought by the petitioner was allowed and the following amendment was inserted in the plaint as paragraph VI(b): "VI(b). The Plaintiff submits that in violation of the order status quo passed in RA 69/2008 and during the pendency of the said appeal, the defendant have reduced further the width lane by further 2 and half feet, by extending southern compound wall." 3. Subsequently, the petitioner made an application under Order 26 Rule 9 read with Order 41 Rule 27 CPC for appointment of Court Commissioner to find out the - 5 - NC: 2025:KHC:13533 WP No. 51835 of 2019 encroachment made by the respondents on the southern compound wall, the same has been dismissed by the First Appellate Court on the ground that in the original suit itself Court Commissioner was appointed and a report has been submitted. Aggrieved by the same, the present writ petition is filed. 4. The case of the petitioner is that originally the suit was filed alleging encroachment by the respondents by illegally extending their western compound, whereas subsequent to filing of the suit, respondents have illegally constructed a compound wall towards southern portion of the petitioner's property by reducing the common passage between the properties and this act of the respondents was made subsequent to filing of the original suit and hence, it necessitated an application for amending the plaint to be filed during the pendency of regular appeal which has been allowed in W.P.No.32467/2015 and the following additional issue has been framed: "Whether the plaintiff proves that during the pendency of the appeal, the defendants have reduced the width of the lane by further 2 1/2 feet by expanding their southern compound wall?" - 6 - NC: 2025:KHC:13533 WP No. 51835 of 2019 5. There has been no ruling given by the trial Court on the said additional issue and the Commissioner has not been appointed to state as to the encroachment on the southern side of the property of the petitioner herein. For that reason, it is prayed that the impugned order be set aside and the application filed by the petitioner be allowed. 6. Per contra, respondents submit that in respect of amendment made to the pleadings in the plaint, no prayer is made regarding removal of the alleged encroachment by the respondents on the southern side of the property of the petitioner and thus, there is no requirement for Court Commissioner to be appointed in this regard. 7. Under the given circumstances to find out an encroachment, apart from evidence let in by the parties, it is advisable to appoint a Court Commissioner. However, it has to be keep in mind that the evidence that is required to be let in by the parties should pertain to determine the disputed question of facts. 8. Issues regarding facts arise when a material proposition of fact is affirmed by one party and denied by other - 7 - NC: 2025:KHC:13533 WP No. 51835 of 2019 and that is essential to be answered by the Court to resolve the dispute between parties. 9. No doubt, in the instant case dispute pertains to alleged encroachment of the common passage by the respondents on their western side of the property. However, there is a pleading made by the petitioner regarding encroachment of the common passage by respondents by constructing a wall on the southern side of the petitioner's property and rightly or wrongly, the First Appellate Court has framed an issue regarding the same. Once an issue has been framed, the Court is required to give a finding on the same. 10. Under the said circumstances, I am of the opinion that the First Appellate Court ought to have allowed the application filed by the petitioner for appointment of Commissioner. At this juncture, learned advocate for respondents submits that pleadings of the petitioner go to show that the property of the respondents is towards eastern side of the petitioner's property and he could not have put a wall on the southern side and prays that he may be given - 8 - NC: 2025:KHC:13533 WP No. 51835 of 2019 liberty to make necessary application to strike out the issue framed by the trial Court. Hence, the following: ORDER i. The writ petition is hereby allowed; ii. The impugned order dated 07.11.2019 passed on I.A.No.V filed under Order 26 Rule 9 read with Order 41 Rule 27 CPC in R.A.No.69/2008 on the file of Prl. Senior Civil Judge & CJM, Mangaluru, D.K. is hereby set aside; iii. The application filed under Order 26 Rule 9 read with Order 41 Rule 27 CPC by the petitioner is hereby allowed; iv. The First Appellate Court is directed to appoint a suitable Court Commissioner as prayed for by the petitioner in the aforesaid application; v. The respondents are given liberty to file necessary application in accordance with law before the First Appellate Court as prayed for by them. If the First Appellate Court were to decide the said application before appointment of Commissioner and if it concludes that the additional issue framed has to - 9 - NC: 2025:KHC:13533 WP No. 51835 of 2019 be struck down then appointment of Commissioner as ordered above will not be required; vi. The First Appellate Court is directed to dispose of R.A.No.69/2008 as expeditiously as possible and the parties are hereby directed to co-operate for quick disposal. In view of disposal of the main petition, pending interlocutory applications, if any, stand disposed of. Sd/- (M.I.ARUN) JUDGE PGG List No.: 1 Sl No.: 34