- 1 - NC: 2025:KHC-D:6442 WP No. 104449 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.104449 OF 2018 (GM-CPC) BETWEEN: 1. SHRI. BABU S/O. ANTU KAMBLE @ MAHAR AGE: 66 YEARS, OCC: AGRICULTURE, R/O: NAGANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. 2. SHRI. GANAPATI S/O. ANTU KAMBLE @ MAHAR, AGE: 66 YEARS, OCC: AGRICULTURE, R/O: NAGANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. 3. SHRI. MANOHAR S/O. ANTU KAMBLE @ MAHAR, AGE: 66 YEARS, OCC: AGRICULTURE, R/O: NAGANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. 4. SHRI. PRAKASH S/O. ANTU KAMBLE @ MAHAR, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: NAGANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. …PETITIONERS (BY SRI. SANTOSH B.RAWOOT, ADVOCATE) AND: 1. SHRI. KARABA MANAPPA MAHAR @ KAMBLE SINCE DECEASED BY LRs. SHRI. ANKUSH KURBA KAMBLE @ MAHAR, AGE: 36 YEARS, OCC: COOLIE, R/O: NAGANUR K.S. VILLAGE, POST: RASHING, TQ: HUKKERI, DIST: BELAGAVI. 2. SMT. KAMAL KURBA KAMBLE @ MAHAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.19 10:40:37 +0530 - 2 - NC: 2025:KHC-D:6442 WP No. 104449 of 2018 AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: NANANUR K.S. VILLAGE, POST: RASHING, TQ: HUKKERI, DIST: BELAGAVI. 3. SHRI. MARUTI S/O. BASAWWA KAMBLE @ MAHAR AGE: 56 YEARS, OCC: AGRICULTURE, R/O: NANANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. 4. SHRI. BALU YASHOBA KAMBLE @ MAHAR AGE: 40 YEARS, OCC: AGRICULTURE, R/O: NANANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. 5. SHRI. YASHOBA @ YASHWANT SUTUBA @ SATTYAPPA KAMBLE @ MAHAR, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: NANANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. 6. SHRI. TANAJI DEVAPPA KAMBLE @ MAHAR AGE: 31 YEARS, OCC: AGRICULTURE, R/O: NANANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. 7. SHRI. SACHIN DEVAPPA KAMBLE @ MAHAR AGE: 28 YEARS, OCC: AGRICULTURE, R/O: NANANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. 8. SHRI. CHIDAMBAR @ CHIDANAND S/O. ANTU KAMBLE @ MAHAR, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: NANANUR K.S. VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. …RESPONDENTS (BY SRI. B.T.VIBHUTE, ADVOCATE FOR R4 TO R4; NOTICE TO R1 TO R3 ARE SERVED; NOTICE TO R8 IS HELD SUFFICIENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 03.07.2018 PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C SANKESHWAR ON I.A.NO.11 IN O.S.NO.424/2012, VIDE ANNEXURE-"J", IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. - 3 - NC: 2025:KHC-D:6442 WP No. 104449 of 2018 THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER This petition is filed by the plaintiffs assailing the order of the trial Court passed on I.A.No.XI appointing Court Commissioner in a partition suit to ascertain the ground realities. Since defendants No.6(a), 6(b) and 7 have contended that they have made vast improvement by investing huge money. This application is filed by the defendants on the premise that few witnesses, who are examined in the case, have denied the existence of sugarcane crop in Sy.No.187. It is in this background, the application is allowed thereby appointing a Court Commissioner. 2. Heard the counsel appearing for petitioners. Perused the order under challenge. 3. Plaintiffs have instituted a comprehensive suit in O.S.No.424/2012 seeking relief of partition and - 4 - NC: 2025:KHC-D:6442 WP No. 104449 of 2018 separate possession. This partition suit is clubbed with the injunction suit pending in O.S.No.222/2012. 4. On examining the order under challenge, this Court is of the view that learned Judge has misdirected himself while entertaining an application filed by defendants under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’ for brevity) seeking appointment of a Court Commissioner. In a partition suit, the core issue is as to whether suit schedule properties are joint family ancestral properties and as to whether plaintiffs are entitled for their legitimate share. 5. On reading the written statement filed by defendants No.3 to 6, it is clearly evident that defendants acknowledge that plaintiffs and defendants No.3 to 6 constitute undivided joint Hindu family and are having a common ancestor by name Satyappa. Defendants No.3 to 6 on the contrary have contended that the present suit is filed only to grab the entire property. On reading the - 5 - NC: 2025:KHC-D:6442 WP No. 104449 of 2018 averments in the written statement, is clearly evident that defendants No.3 to 6 acknowledge and admit that suit schedule properties are joint family ancestral properties and that there is no partition. 6. In the background of these pleadings found in the written statement, this Court has examined the prayer sought in the application filed in I.A.No.XI. This application filed in I.A.No.XI is totally misconceived. In a partition suit, the core question is as to whether plaintiffs are entitled for their legitimate share and what would be their entitlement. An application filed under Order XXVI Rule 9 read with section 151 of CPC to ascertain the nature of crops grown, is totally irrelevant in a preliminary decree proceedings. Any improvement and development made by defendants has to be substantiated by leading rebuttal evidence and not by having a recourse to local inspection. 7. Even if defendants are able to substantiate that sugarcane crops is grown in the lands, that will not come to their aid to substantiate that they have developed and - 6 - NC: 2025:KHC-D:6442 WP No. 104449 of 2018 improved the suit schedule properties. If any development is made by the defendants, the same has to be substantiated by leading rebuttal evidence and their entitlement towards improvement has to be worked out in final decree proceedings. This application filed under Order XXVI Rule 9 read with Section 151 of CPC is totally misconceived. The said application ought not have been entertained by the learned Judge. The learned Judge has also not examined the principles governing partition suit. Therefore, the order under challenge is unsustainable and is liable to be set-aside. For the foregoing reasons, this Court passes the following: ORDER i) Writ petition is allowed. ii) The impugned order dated 03.07.2018 passed by learned Additional Civil Judge and JMFC., Sankeshwar on I.A.No.XI in O.S.No.424/2012 vide Annexure-J is hereby set-aside. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE AM/- List No.: 1 Sl No.: 5