- 1 - NC: 2025:KHC:3635 WP No. 33773 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 33773 OF 2024 (GM-CPC) BETWEEN: SRI SYED OBEDULLA S/O. SYED NAZEER SAB AGED ABOUT 67 YEARS R/O. NEAR ANSAR MASJID RML NAGAR, 2ND STAGE SHIVAMOGGA CITY-577 201. …PETITIONER (BY SRI. S V PRAKASH.,ADVOCATE) AND: 1. MEHABOOB KHAN SINCE DEAD BY HIS LRS, FATHIMA BI W/O. MOHAMMED MEHABOOB KHAN AGED ABOUT 73 YEARS 2. MOHAMMED MANSOOR ALI KHAN S/O. LATE MOHAMMED MEHABOOB KHAN AGED ABOUT 58 YEARS. 3. SRI MOHAMMED RAZA NOORUDDIN KHAN S/O. LATE MOHAMMED MEHABOOB KHAN AGED ABOUT 45 YEARS 4. SRI MOHAMMED RAZAK ALI KHAN S/O. LATE MOHAMMED MEHABOOB KHAN AGED ABOUT 42 YEARS Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3635 WP No. 33773 of 2024 5. SRI MOHAMMED RAZA MUBARAK HUSSAIN S/O. LATE MOHAMMED MEHABOOB KHAN AGED ABOUT 48 YEARS. 6. SMT. ZAHERA KHANUM D/O. LATE MOHAMMED MEHABOOB KHAN W/O. H. AYUB KHAN AGED ABOUT 52 YEARS 7. SMT. ZULEKHA KHANUM, D/O. LATE MOHAMMED MEHABOOB KHAN W/O. ALLA BHAKSH AGED ABOUT 50 YEARS 8. SMT. ZAITHUN KHANUM, D/O. LATE MOHAMMED MEHABOOB KHAN W/O. MOHAMMED IRSHAD PASHA AGED ABOUT 42 YEARS 9. SMT. ZAREENA KHANUM D/O. LATE MOHAMMED MEHABOOB KHAN W/O. SHABBIR AHAMED KHAN AGED ABOUT 37 YEARS ALL ARE R/O. NEW BHARATH VEHICLE PARKING COMPOUND, 80 FEET ROAD OPP TO K.S.R.T.C. DEPOT R.M.L.NAGAR,SHIVAMOGGA CITY-577201 …RESPONDENTS (BY SRI. P N HARISH, ADVOCATE FOR R1 TO R9) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED: 29.10.2024 BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA ON I.A.NO.XI IN O.S.NO. 183/2017 PRODUCED AS ANNEXURE-F TO THE WRIT PETITION AND ETC. - 3 - NC: 2025:KHC:3635 WP No. 33773 of 2024 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL ORDER This writ petition is filed by the plaintiff under Article 227 of the Constitution of India, challenging the order dated 29.10.2024 passed by the II Additional Senior Civil Judge and CJM, Shivamogga on IA No.XI in O.S.No.183/2017 whereby the application filed by the plaintiff for appointment of a Court Commissioner has been rejected. 2. The plaintiff filed a suit for declaration and possession. On service of summons, defendant filed written statement. On the basis of the pleadings of the parties, issues have been framed and parties have adduced their evidence. After completion of their evidence, plaintiff filed an application under Order XXVI Rule 9 for appointment of a qualified surveyor - 4 - NC: 2025:KHC:3635 WP No. 33773 of 2024 for survey and report of the suit schedule property, to prove that the defendant has encroached schedule property and also existence of ‘B’ Schedule property and that earlier surveyor who has surveyed the property is no more. 3. The learned counsel appearing for the respondent/defendant contended that the plaintiff has examined the Assistant of earlier surveyor and he has also marked the survey sketch. In the evidence, he has admitted that he has sold some portion of ‘A’ schedule property to different persons. 4. The suit is filed for declaration and possession. Even though the suit is filed for possession, the parties have clearly established their case in their evidence. The trial court has given a clear finding that the court does not require an appointment of a surveyor to arrive at a conclusion and it is also admitted in the cross-examination that, in ‘A’ schedule property, he - 5 - NC: 2025:KHC:3635 WP No. 33773 of 2024 has sold several sites to several persons on different dates and they have constructed houses and commercial complexes and they have not made as parties to the suit. 5. Under these circumstances, the trial court has rightly dismissed the application for appointment of Court Commissioner. Hence, there is no error or illegality in the order passed by the trial court. Accordingly, writ petition is dismissed. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM List No.: 1 Sl No.: 61