- 1 - NC: 2025:KHC:7035 WP No. 2992 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 2992 OF 2021 (GM-CPC) BETWEEN: HILDA D'COSTA W/O WILLIAM A.D. D'COSTA AGED ABOUT 55 YEARS R/AT BALA VILLAGE MANGALURU TALUK - 575 014 PRESENTLY RESIDING AT SAKINAKA MUMBAI - 400 002 REPRESENTED BY HER P.A. HOLDER RAJESH RODRIGUES S/O AMBROSE RODRIGUES D.NO.1-302, BALA VILLAGE MANGALURU TALUK - 575 014 …PETITIONER (BY SRI. SANATHKUMAR SHETTY K., ADVOCATE) AND: 1. BALA GRAMA PANCHAYATH REPRESENTED BY ITS PRESIDENT AND P.D.O. BALA GRAMA PANCHAYATH MANGALURU TALUK - 575 014 2. THE STATE OF KARNATAKA REPRESENTED BY THE DEPUTY COMMISSIONER D.C. OFFICE, HAMILTON CIRCLE, HAMPANAKATTA, MANGALURU - 575 001. 3. M.R.P.L. REPRESENTED BY ITS Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT KARNATAKA - 2 - NC: 2025:KHC:7035 WP No. 2992 of 2021 PROJECT DIRECTOR M.R.P.L., MANGALURU TALUK - 575 014 …RESPONDENTS (BY SMT. ASHA NANDI M.S. AND SRI. AMIT VERMA, ADVOCATES FOR RESPONDENT NO.3; NOTICE/S IS/ARE SERVED ON RESPONDENT NOS.1 AND 2) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO INTERFERE WITH THE ORDER DATED 01.02.2021 PASSED ON I.A.NO.V IN O.S.NO.927/2019 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, MANGALURU AT ANNEXURE-H BY SETTING IT ASIDE. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ ORAL ORDER The plaintiff in O.S. No.927/2019 on the file of the Principal Civil Judge and JMFC., Mangaluru, (henceforth referred to as ‘the Trial Court’) is before this Court challenging an order dated 01.02.2021 by which an application (I.A. No.V) filed by her under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) was rejected. 2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The plaintiff herein was - 3 - NC: 2025:KHC:7035 WP No. 2992 of 2021 the petitioner while respondents herein were the defendants before the Trial Court. 3. The suit in O.S. No.927/2019 was filed inter alia for declaration that the plaintiff is entitled to an easementary right over a road measuring 20 feet in the land bearing Sy. Nos.155/1A and 155/2 of Bala village, Mangaluru Taluk, which was mentioned in the sketch attached to the plaint and for mandatory injunction directing the defendants to remove and clear the obstruction and blockage of the said 20 feet road. 4. The plaintiff claimed that she was the owner in possession of the suit schedule property. She claimed that in order to reach the suit property, there was a 20 feet wide road running from North to South in the land bearing Sy. Nos.155/1A and 155/2 of Bala village. She claimed that ever since she acquired title to the suit schedule property, she had been using the 20 feet road for ingress and egress, from her property. She claimed that even the conversion sketch of the suit property indicated that the 20 feet road was used to reach the property of the plaintiff. She claimed that she shifted her residence with an intention to demolish the house and to - 4 - NC: 2025:KHC:7035 WP No. 2992 of 2021 construct a new house thereon and taking advantage of this, the defendant No.1 blocked the 20 feet road and had laid a structure thereby obstructing the access to the suit property. 5. The plaintiff, therefore, sought for the aforementioned reliefs and also sought for mandatory injunction to direct the defendants to remove the obstruction laid on the 20 feet road. 6. The suit was contested by the defendant No.1 who denied inter alia that the 20 feet road ran over the land of the defendant No.1 which was used by the plaintiff to reach her property. It also denied that it had obstructed the road claimed by the plaintiff. 7. The defendant No.3 also contested the suit and claimed that it had set apart a portion of land in Sy. No.155/2 so as to allow access to the plaintiff and had fenced the remaining portion. Therefore, defendant No.3 contended that there was no cause of action against it. It also claimed that the boundary of the suit property was given wrongly and claimed that the road if at all lay on the north and not on the western side of the suit property. It contended that in so far as its land - 5 - NC: 2025:KHC:7035 WP No. 2992 of 2021 is concerned, it had enclosed the same by a compound wall in the year 1990 when it was transferred by the Karnataka Industrial Areas Development Board (KIADB) to it. 8. During the course of the trial, the plaintiff filed an application for appointment of Commissioner for local inspection and report about the points mentioned in the said application along with the assistance of Taluk Surveyor. Defendant Nos.1 and 3 filed objections to the said application. The Trial Court had held that the application would be considered after the evidence in the suit was concluded. After the trial in the suit was concluded, the Trial Court took up the application (I.A. No.V) for consideration and it held that the material on record was sufficient enough to adjudicate the reliefs sought in the suit. It also held that in order to prove her case, the plaintiff had to establish that there was a road running over the land bearing Sy. Nos.155/1A and 155/2 of Bala village by leading cogent evidence and not through a Commissioner for local inspection. 9. Being aggrieved by the said order, the plaintiff is before this Court. - 6 - NC: 2025:KHC:7035 WP No. 2992 of 2021 10. Learned counsel for the plaintiff contended that there are sufficient material placed before the Court to establish the existence of a 20 feet road in Sy. Nos.155/1A and 155/2. He contended that in order to assist the Court in coming to a right conclusion, it was necessary to ascertain the same from a spot inspection. He submits that in matters of this nature, the only way to note relevant facts is through a Commissioner for local inspection. He contends that the Court is bound to take into account the way the parties had conducted themselves and whether this gave rise to any right in favour of the plaintiff. Therefore, he contends that the fact of existence of the road has to be physically verified so as to determine the reliefs sought for in the suit. In support of this contention, he relied upon the judgment of a coordinate Bench of this Court in W.P No. 201274/2022 (disposed of on 24.01.2023). 11. The learned counsel for defendant No.3 / respondent No.3 submitted that the plaintiff was bound to prove the existence of the road and a Commissioner cannot be allowed to collect evidence. She contended that defendant - 7 - NC: 2025:KHC:7035 WP No. 2992 of 2021 No.3 was allotted the property by KIADB in the year 1990 and that it had rightly enclosed the property by raising a compound. 12. I have considered the submissions of the learned counsel for the plaintiff and defendant No.3 and perused the material on record. 13. A perusal of the plaint shows that the plaintiff specifically claimed that a 20 feet road ran over the land in Sy. Nos.155/1A and 155/2 of Bala village. She also claimed that the existence of the road was shown in the sale deed executed in favour of her predecessor and also in a sketch attached to the sale deed. She also claimed that she had been using the said 20 feet road for ingress and egress to her property. She claimed that the road running over the land in Sy. Nos.155/1A and 155/2 was found in the conversion sketch and also claimed that it was the only road to approach her property. She contended that a house existed on the suit property and that she was reaching the house on the suit property by walking over the road in the land bearing Sy. Nos.155/1A and 155/2. Therefore, it was for the plaintiff to establish the existence of the road over the land in Sy. - 8 - NC: 2025:KHC:7035 WP No. 2992 of 2021 Nos.155/1A and 155/2. The defendant No.1 denied the existence of the road over the land bearing Sy. Nos.155/1A and 155/2. It also denied that a house existed on the property of the plaintiff and that she was living there. In so far as the conversion sketch, which showed the existence of the road in Sy. Nos.155/1A and 155/2, the defendant No.1 contended that “the conversion order is in respect of the land measurement of which is given in the order. It has no bearing on the alleged approach roads shown in the said orders. No rights can be created by showing any road in such conversion orders. In fact there was no road in those survey numbers. By showing the said order or the sketch, which he has made as part of the order, he cannot claim a roadway in another property". Therefore, the defendant No.1 also seems to be not sure of its contention that no road runs over the land bearing Sy. Nos.155/1A and 155/2. Assuming that this is a road which is provided so as to enable the plaintiff to access her property, this may or may not find mention in the village map or survey sketches as it could be done for the convenience of the parties. Therefore, there may or may not be antecedent documents to establish the existence of the road running over the land - 9 - NC: 2025:KHC:7035 WP No. 2992 of 2021 bearing Sy. Nos.155/1A and 155/2. Though the plaintiff may have produced documents to establish that she was using the road, a factual check would help the Court to decide the controversy in the right perspective and conclusively. If the suit road is the only way and shortest way to reach that property, that also could be ascertained through a Commissioner. As rightly contended by the learned counsel for the plaintiff, a coordinate Bench of this Court while considering the circumstances under which the Court should appoint a Commissioner, held as follows: "21.…This Court is of the view, broadly speaking in the following cases, the appointment of an appropriate Commissioner as provided under Order XXVI of the Code is desirable. (i) The dispute relating to the easement of air, light, pathway, road, watercourse, etc. (ii) The dispute relating to the boundary, encroachment; (iii) The dispute relating to forgery; (iv) The dispute relating to the existence or otherwise of a stream, pond, drainage, - 10 - NC: 2025:KHC:7035 WP No. 2992 of 2021 watercourse, road, pathway, pollution, or nuisance.” Therefore, the impugned order passed by the Trial Court rejecting the application (I.A. No.V) filed by the plaintiff for appointment of a Commissioner warrants interference. Consequently, this petition is allowed. The impugned order dated 01.02.2021 passed by the Principal Civil Judge and JMFC., Mangaluru, on I.A. No.V in O.S. No.927/2019 is set aside. The application (I.A. No.V) filed by the plaintiff under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 is allowed and an Advocate shall be appointed by the Trial Court as a Commissioner for local inspection and to ascertain the existence of the road mentioned by the plaintiff in the plaint. Sd/- (R. NATARAJ) JUDGE SMA List No.: 1 Sl No.: 59