- 1 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 21ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R.NATARAJ WRIT PETITION NO.200285 OF 2025 (GM-CPC) BETWEEN: …PETITIONERS (BY SRI. KADLOOR SATYANARAYANACHARYA, ADVOCATE) 1. SHARANABASAPPA S/O. BASAVANAPPA, AGE: 54 YEARS, OCC: GOVT. SERVANT, 2. TUKARAM S/O BASAVANAPPA, AGE: 50 YEARS, OCC: PVT.SERVICE, SINCE DECEASED BY LRS., A. SMT. SHANTABAI W/O LATE TUKARAM AGE: 46 YEARS, OCC: HOUSEHOLD. B. VASUDEV S/O LATE TUKARAM AGE: 29 YEARS, OCC: PRIVATE WORK, C. VINAY S/O LATE TUKARAM AGE: 25 YEARS, OCC: PRIVATE WORK, D. RAMCHANDRA S/O LATE TUKARAM, AGE: 24 YEARS, OCC: PRIVATE WORK, 3. VITHAL S/O BASAVANAPPA, AGE: 43 YEARS, OCC: BUSINESS, 4. NAGINDRAPPA S/O BASAVANAPPA, AGE: 41 YEARS, OCC: BUSINESS, ALL ARE R/O.HIRAPUR VILLAGE, TQ. AND DIST. KALABURAGI-585103. Digitally signed by SACHIN Location: High Court Of Karnataka - 2 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 AND: 1. VIJAYKUMAR S/O LATE BABURAO, AGE: 35 YEARS, OCC: GOVT. SERVANT, R/O.BHAVANI COLONY, OPPOSITE BUS DEPOT, HUMANABAD, TQ. AND DIST. BIDAR- 585330. 2. KSRTC EMPLOYEES HOUSING CO-OPERATIVE SOCIETY, THROUGH ITS PRESIDENT SRI SHANKER RADDEWADI, KALABURAGI-585101. 3. KSRTC EMPLOYEES HOUSING CO-OPERATIVE SOCIETY, THROUGH ITS PRESIDENT SRI MALLU DRIVER, KALABURAGI-585101. 4. KSRTC EMPLOYEES HOUSING CO-OPERATIVE SOCIETY, KALABURAGI-585101, THROUGH ITS SECRETARY. 5. GRAM PANCHAYAT, NANDIKUR THROUGH ITS PDO, NANDIKUR, DIST. KALABURAGI-585102. 6. CITY CORPORATION, KALABURAGI THROUGH ITS COMMISSIONER-585101. …RESPONDENTS (V/O DATED 21.02.2025 SERVICE OF NOTICE TO R2 TO R6 ARE DISPENSED WITH; SRI. BASANNAGOUDA S. PATIL, ADVOCATE FOR R1) THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE I) WRIT OF CERTIORARI BY SETTING ASIDE THE IMPUGNED ORDER DATED 14.11.2024 ON I.A.NO.4 IN O.S.NO.43/2018, PASSED BY THE I ADDL. SENIOR CIVIL JUDGE, KALABURAGI AT ANNEXURE-E AND CONSEQUENTLY ALLOW I.A.NO.4 FILED BY THE PLAINTIFFS/ APPELLANTS IN O.S.NO. 43/2018, ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE, KALABURAGI. - 3 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 THIS PETITION, COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R.NATARAJ ORAL ORDER The plaintiffs in O.S.No.43/2018 on the file of I Additional Senior Civil Judge at Kalaburagi have filed this petition challenging the correctness of an order dated 14.11.2024 by which an application filed by them under Order XXVI Rule 9 of Code of Civil Procedure (CPC) was rejected. 2. The suit in O.S.No.43/2018 was filed for declaration of title in respect of 13 guntas of land in Sy.No.1/5 of Hirapur village, Kalaburagi Taluk and District and for mandatory injunction to direct defendant No.1 to demolish the construction put-up thereon and for recovery of possession of the property. 3. (i) The plaintiffs claim that land bearing Sy.No.1 of Hirapur measured 19 acres 13 guntas and was owned by Tukaram who had four sons by name Ramachandra, - 4 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 Maruthi, Siddanna and Basanna. All the four sons partitioned the aforesaid property in terms of a document dated 17.11.1970, in terms of which, each one of them derived 04 acre 33 guntas. An extent of 04 acre 33 guntas was allotted to the share of Ramchandra on the northern side, and 04 acres 33 guntas was allotted to the share of Basannaa on the northern side of the property allotted to Ramchandra. The said Ramchandra sold 04 acres out of 04 acres 33 guntas to defendant No.2 in terms of a sale-deed 03.07.1991 and the wife of said Ramchandra sold the remaining 33 guntas of land to Mr.Shahjirao in terms of a sale-deed dated 01.12.1998. Similarly, Basanna sold 03 acres to Mr.Shahjirao in terms of a sale-deed dated 01.12.1998 and thereafter sold 01 acre 20 guntas to Putalabai W/o Shahjirao in terms of the sale-deed dated 01.12.1998. Therefore, what remained with the said Basanna was 13 guntas of land. Plaintiffs claim that defendant No.2 after purchasing 04 acres of land from Ramachandra, got it converted for non agricultural residential area and formed 62 plots. Plaintiffs claim that - 5 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 defendant No.2 had encroached into 13 guntas of land belonging to the plaintiffs of which the defendant No.1 was allotted an area measuring 40x60 feet. The plaintiffs therefore claimed that they were entitled to the possession of 13 guntas of land and defendant No.1 who had put up construction was bound to remove the construction and handover possession of the property. Along with the suit, an application was filed by the plaintiffs for appointment of a Commissioner to “measure the suit land and to submit report regarding the same”. (ii) The defendant No.1 contested the suit and denied inter alia the existence of the suit property. He also claimed that he did not encroach into the property of the plaintiffs. (iii) Based on these contentions, the Trial Court held that the application for appointment of a Commissioner would be considered after the trial in the suit had concluded. Later after the trial was concluded, the plaintiffs pressed the application for appointment of a - 6 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 Commissioner to measure the suit property and to submit a report. This application was opposed by defendant No.1, who claimed that the plaintiffs had earlier filed O.S.No.585/2013 for perpetual injunction and that after a full fledged trial when the suit was set down for arguments, the plaintiffs withdrew the suit on the premise that they intended to file a comprehensive suit for declaration. They claimed that a similar application was filed in the said suit which was rejected by the Court. They also contended that the plaintiffs in order to overcome their admissions and in their cross-examination in O.S.No.585/2013 have filed the instant application to measure the suit land. He contended that the suit is filed by the plaintiffs to identify their property and that it is not the responsibility of the Court to assist the plaintiffs to collect evidence regarding the existence and location of the suit property. 4. The Trial Court after considering the application, rejected the same in terms of the impugned - 7 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 order on the ground that the title of the plaintiffs to the suit property is in dispute and therefore it is not safe to appoint a Commissioner. It also held the pleadings disclosed that many people might have encroached over the suit property and that mere entry of the names of the plaintiffs in respect of 13 guntas of land would not be sufficient to accept the claim of the plaintiffs. Being aggrieved by the said order, the plaintiffs are before this Court. 5. Learned counsel for the plaintiffs contends that there is no dispute on facts namely extent of land in Sy.No.1, bifurcation of land into four bits and the consequent transactions brought about by Ramachandra and Basanna. He therefore contends that whatever that remained after Basanna sold was 13 guntas of land and therefore a Commissioner had to be appointed to measure the suit property and submit a report. 6. The learned counsel for defendant No.1 however contended that the existence of the suit property - 8 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 is in dispute and therefore the suit land cannot be measured and a Commissioner cannot be appointed to identify the suit property even when the plaintiffs have not sought for such identification. He contends that the defendant No.1 was allotted a site by defendant No.2 and that defendant No.1 is lawful in possession of property allotted and therefore it is for the plaintiffs to establish the existence of the suit property. 7. After considering the contentions of the learned counsel for plaintiffs and the learned counsel for the defendant No.1, this Court has noticed that in the application filed by the plaintiffs for appointment of a Commissioner, the plaintiffs have not sought for fixing the boundaries of 04 acre 33 guntas of land which had purportedly fallen to the share of their predecessor namely Sri Basanna. It is only upon identification of the limits of the said 04 acre 33 guntas, the existence or otherwise of 13 guntas of land claimed by the plaintiffs as suit property, could be identified. Therefore the application - 9 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 filed by the plaintiffs is vague and cannot be given effect to. Under the circumstances, the impugned order passed by the Trial Court cannot be interfered. However, an opportunity deserves to be granted to the plaintiffs to file a fresh application for identifying the limits of 4 acres 33 guntas that fell to the share of their predecessor Sri Basanna as well as 04 acre 33 guntas of land that fell to the share of Ramachandra. It is only thereafter, it could be ascertained whether there is any encroachment by defendant No.2 into the land of plaintiffs. Therefore, an opportunity deserves to be granted to the plaintiffs to file a fresh application. Consequently, the following order passed : The writ petition is disposed off. The impugned order passed by the Trial Court is upheld not on the reasons mentioned in the impugned order but on the ground that the application was vague. Therefore, the plaintiffs are at liberty to file a fresh - 10 - NC: 2025:KHC-K:1192 WP No. 200285 of 2025 application specifying the purpose for appointment of a Commissioner. The Trial Court shall consider the application in accordance with law without being influenced by the observations made by it in the impugned order. Sd/- (R.NATARAJ) JUDGE SN LIST NO.: 1 SL NO.: 24 CT:SI