- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.20039 OF 2022 (GM-CPC) BETWEEN: SRI CHANNAPPA S/O LATE MUNISHAMAPPA, AGED ABOUT 78 YEARS, R/O CHANNAKESHAVAPURA VILLAGE, KASABA HOBLI, CHINTAMANI TALUK-563 125. CHICKABALLAPURA DISTRICT. …PETITIONER (BY SRI. KALEEMULLAH SHARIFF, ADVOCATE) AND: 1 . SRI RADHAKRISHNA S/O LATE CHIKKAMUNISHAMAPPA, AGED ABOUT 51 YEARS, R/O CHANNAKESHAVAPURA VILLAGE, KASABA HOBLI, CHINTAMANI TALUK-563 125 CHIKKABALLAPURA DISTRICT. 2 . SRI ANJINAPPA S/O NARAYANAPPANAVARA MUNIYAPPA, AGED ABOUT 55 YEARS R/O CHANNAKESHAVAPURA VILLAGE, KASABA HOBLI, CHINTAMANI TALUK-563 125, CHIKKABALLAPURA DISTRICT. 3 . SRI M S NARAYANASWAMY S/O LATE SRIRAMAPPA, AGED ABOUT 70 YEARS, R/O NAYINDRAHALLI VILLAGE, KAIWARA HOBLI, ® - 2 - CHINTAMANI TALUK-563 125, CHICKABALLAPURA DISTRICT. …RESPONDENTS (BY SRI. LOKESHA MURTHY M., ADVOCATE FOR R1 AND R2; V/O DT:29.01.2024 PETITIONER AGAINST R3 DISMISSED AS ABATED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED ON I.A.NO.IX IN O.S.NO.143/2017, BY THE LEARNED PRL. CIVIL JUDGE AND JMFC., CHINTAMANI, DATED 16.09.2022 PRODUCED AT ANNEXURE-‘E’ BY ISSUING A WRIT OF CERTIORARI AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER 1. The present writ petition is filed seeking to set aside the Order dated 16.09.2022 passed on I.A.No.IX in O.S.No.143/2017, on the file of the Principal Civil Judge and JMFC, Chintamani (‘the trial Court’ for short) 2. The petitioner herein is the plaintiff before the Trial Court and the respondents herein are the defendants before the Trial Court. 3. The brief facts of the case are that:- - 3 - The plaintiff filed application, under Order XXVI Rule 9 read with Section 151 of the C.P.C., seeking the appointment of a Taluk Surveyor or any other suitable authority of Chintamani Taluk to inspect the suit schedule properties and the defendants’ properties and to report the existing topography and physical features on the spot in order to decide the real dispute. 4. The plaintiff, in support of the I.A.No.IX filed under Order XXVI Rule 9 r/w. Section 151 of the CPC, has filed an affidavit contending that the suit has been instituted for declaration of title and permanent injunction in respect of the suit schedule properties. The defendants, in their written statement, have alleged that the plaintiff is neither in possession nor in enjoyment of the suit schedule properties, and that the extent and boundaries furnished by the plaintiff encroach upon 0-10 guntas of land belonging to defendant No.1. It is further stated that defendant No.1 has no objection for survey and fixation of boundaries as per the sale deeds, but he contends that an earlier survey was carried out behind the back of the - 4 - defendants, at the instance of the plaintiff, who managed to influence the survey officials without issuing notice to the defendants, and that such survey wrongly included 0-10 guntas of defendant No.1’s land. It is also alleged that the plaintiff has never dug any borewells in the suit schedule property. The defendant No.2 has claimed purchase of Sy.No.44/2 measuring 14 guntas including ½ gunta of Karab land, while defendant No.3 has claimed purchase of Sy.No.44/4 measuring 28 guntas, though they have not adduced oral or documentary evidence despite filing their written statement. 5. The plaintiff further asserted that the defendants have knowingly suppressed the fact of his and his family members possession over the suit schedule property, and therefore, in order to ascertain the true state of affairs and resolve the real dispute, appointment of a Court Commissioner is necessary. It is submitted that if the application is allowed, no injury or hardship would be caused to the defendants, whereas if it is rejected, the plaintiff would be put to irreparable loss and injury. - 5 - 6. It is the case of the defendants that the defendant No.1 has filed detailed objections opposing the application filed by the plaintiff, contending that the plaintiff had earlier filed O.S.No.222/2014 seeking permanent injunction in respect of the suit schedule property, in which this Court framed the issue as to whether the plaintiff proves possession of the suit schedule property as on the date of the suit, which was held in the negative, and such finding was recorded in the judgment. It is further pointed out that the appeal preferred by the plaintiff in R.A.No.142/2016 is still pending before the learned Senior Civil Judge and JMFC, Chintamani. 7. It is the specific case of defendant No.1 that the plaintiff is bound to prove the title of his vendor and vendor’s vendor in respect of the suit schedule property, and for such purpose, the appointment of a commissioner is of no assistance. The questions of title and possession can only be adjudicated by the Court upon appreciation of the oral and documentary evidence already available on - 6 - record. The Commissioner cannot be appointed to collect evidence or to create an advantage in favour of any party. 8. On considering the materials on record the Trial Court observed that the plaintiff has filed the suit seeking declaration and permanent injunction in respect of the suit schedule properties and through I.A.No.IX, he requested to appoint a Taluk Surveyor or other suitable authority of Chintamani Taluk to inspect properties of both the parties and report on the topography and physical features. 9. In support of the said application the plaintiff has placed reliance on the following judgments:- Anil Kamalakar Shirodkar v. Dudhappa Santu Patil and another reported in ILR 2001 KAR 2013, where this Court held that in suits involving allegations of encroachment and disputes regarding extent and boundaries, appointment of a Commissioner for survey is just and necessary, and such appointment should not be mistaken for collecting evidence. The reliance was also placed on Suresh v. Vijaykumar and others, reported in - 7 - 2003 AIR Kant. H.C.R. 86, wherein the Apex Court held that appointment of a Commissioner at the pre-evidence stage in land disputes to ascertain the ground reality is not improper, particularly when no prejudice or hardship would be caused to the non-applicant. 10. It was further observed by the Trial Court that defendant No.1 objected to the application contending that the plaintiff is bound to prove his case independently, that the application is not maintainable in law, and that there already exists sufficient oral and documentary evidence on record to decide the controversy. It was argued that appointment of a Commissioner cannot be used to collect evidence and hence the application deserves to be rejected. 11. The Trial Court has borne in mind that the object of local investigation is not to collect evidence that can otherwise be led in Court, but to obtain evidence which, by its peculiar nature, can only be gathered at the spot and which aids the Court in properly appreciating the material already on record. - 8 - 12. The plaintiff’s specific case was that he is the absolute owner in possession of the suit schedule property, purchased under a registered sale deed dated 02.04.1994 from V. Krishnappa and his son Seenappa, and that he has since then enjoyed peaceful possession by cultivating crops without disturbance. He has further alleged that defendants No.1 to 3, who have no right, title, or interest, are interfering with his possession. The defendants, however, denied these claims, relying upon the judgment in O.S.No.222/2014 wherein this Court had already held that the plaintiff failed to prove possession or interference, and submitted that the present relief of permanent injunction is barred by res judicata. 13. The Trial Court, having considered the rival contentions and evidence, is of the view that both parties have already adduced oral and documentary evidence sufficient for adjudication of the issues. The appointment of a Commissioner is warranted only when, by the peculiar nature of the dispute, the truth cannot be elicited through such evidence. In the present case, no such ambiguity - 9 - exists, and the documentary evidence is adequate to resolve the matter. Therefore, the reliance placed by the plaintiff on the cited decisions is inapplicable to the present facts. Accordingly, I.A.No.IX filed by the plaintiff under Order XXVI Rule 9 read with Section 151 CPC was dismissed. 14. It is contended by the learned counsel appearing for the petitioner that the trial Court ought to have considered the judgments produced by the petitioner and have noticed that the dispute was with regard to possession and correct extent and boundaries by allowing the I.A.No.IX filed by the plaintiff therein. 15. Heard learned counsel appearing on either side. 16. On hearing the submissions of the learned counsels for both the parties, on perusal of the material placed on record and on perusal of the impugned order of the Trial Court, this Court is of the opinion that a Commissioner can be appointed to note down the existence of physical features. Therefore, it would be suffice to rely upon a - 10 - short noted judgment of this Court in O.D. Harry v. G. Krishna reported in 1983 (1) ALT (NRC) 29, it was held thus: “The Court has got ample power for appointing a Commissioner to make local investigation and to note the peculiar physical features of the suit property which the party seeks to rely upon at trial in support of his case for seeking a perpetual injunction. In this case the lower Court has confined the scope of enquiry by the Commissioner to note down the existence of the physical features of the suit property and to submit a report. This is amply supported by a combined reading of Order XXVI Rule 9 and Order XXXIX Rule 7 CPC.” 17. On hearing the submissions of the learned counsel, on perusal of the material on record and on perusal of the impugned order dated 16.09.2022 on the file of the Principal Civil Judge and JMFC, Chintamani on I.A.No.IX in O.S.No.143/2017, it is observed that the Trial Court has passed a well reasoned order and no need to interfere in this order. There are no merits to interfere in this writ petition. Hence, the writ petition is dismissed. Sd/- (DR.K.MANMADHA RAO) JUDGE GH