- 1 - NC: 2025:KHC:6931 WP No. 2635 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.2635 OF 2021 (GM-CPC) BETWEEN: B.R. MANJUNATH S/O B.K.RANGAIAH SHETTY, AGE 57 YEARS, R/AT NO.127, CONVENT ROAD, SHANEVARASANTHE TOWN, SOMWARPET TALUK, KODAGU DISTRICT - 571 235. …PETITIONER (BY SRI. B.O.CHANDRA SHEKAR, ADVOCATE) AND: 1. M.N.MAHESH S/O M.N.NANJAIAH, AGE 59 YEARS, R/AT MAIN ROAD, SHANEVARASANTHE TOWN, SOMWARPET TALUK, KODAGU DISTRICT - 571 235. 2. S.L.LEELADHAR S/O V.T.LAXMANA SHETTY, AGE 51 YEARS, RESIDING AT MAIN ROAD, SHANEVARASANTHE TOWN, SOMWARPET TALUK, KODAGU DISTRICT - 571 235. Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT KARNATAKA - 2 - NC: 2025:KHC:6931 WP No. 2635 of 2021 3. N. MADAPPA S/O NANJAPPA, AGE 76 YEARS, RESIDING AT MAIN ROAD, SHANEVARASANTHE TOWN, SOMWARPET TALUK, KODAGU DISTRICT - 571 235. 4. THE DEPUTY COMMISSIONER KODAGU DISTRICT, MADIKERI – 571 201. 5. TAHSILDAR AND ASSISTANT DIRECTOR CITY SURVEY DEPARTMENT OF SHANEVARASANTHE TOWN, TALUK OFFICE, SOMWARPET TOWN, KODAGU DISTRICT -571 235. 6. STATE OF KARNATAKA REVENUE DEPARTMENT, REPRESENTED BY ITS SECRETARY VIDHANA SOUDHA, DR. AMBEDKAR ROAD, BANGALORE – 560 001 …RESPONDENTS (BY SRI. M.E.NAGESH, ADVOCATE FOR R1 AND R2; SRI. BHARATH KUMAR V., ADVOCATE OF R3; R4, R5 AND R6 ARE SERVED) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 20.02.2020 PASSED ON INTERIM APPLICATION NO.6 FILED UNDER ORDER XXVI RULE 10 A R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE IN O.S.NO.18/2014 BY THE COURT OF PRINCIPAL CIVIL JUDGE AND JMFC, SOMWARPET, KODAGU DISTRICT VIDE ANNX-A. - 3 - NC: 2025:KHC:6931 WP No. 2635 of 2021 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.18/2014 on the file of Prl. Civil Judge and JMFC, Somwarpet, is before this Court challenging the correctness of an order dated 20.01.2020, by which, an application filed by him under Order XXVI Rule 10-A r/w Section 151 of CPC was rejected. 2. The plaintiff filed a suit in O.S.No.18/2014 for declaration of title in respect of ‘A’ schedule property and recovery of possession in respect of ‘B’ schedule property. The plaintiff claimed that he was the owner of ‘A’ schedule property and defendant Nos.1 to 3 were the immediate neighbors. He claimed that defendant Nos.1 to 3 had annexed a portion of ‘A’ schedule property, which was described as ‘B’ schedule property, into their property. Therefore, the plaintiff approached the survey authorities - 4 - NC: 2025:KHC:6931 WP No. 2635 of 2021 on 20.08.2013 to survey and identify the boundaries of ‘A’ schedule property. However, defendant No.5 postponed the issue on the pretext that some city survey was undertaken in Shanivarasanthe Town. Later, the plaintiff secured the CTS records, which disclosed that the ‘B’ schedule property was mentioned as Government land. Therefore, plaintiff sought for declaration of his title in respect of ‘A’ schedule property and also for recovery of possession in respect of ‘B’ schedule property and for direction to defendant Nos.4 to 6 to rectify the property as per the sketch prepared by them. 3. The suit was contested by defendant Nos.1 to 3 who admitted that ‘A’ schedule property was possessed by the plaintiff. They denied that they had encroached into any portion of ‘A’ schedule property while repairing or altering their houses. They claimed that ‘B’ schedule property did not exist. They also admitted that the survey is undertaken by the City Survey authorities and claimed that the report of the City Survey authorities - 5 - NC: 2025:KHC:6931 WP No. 2635 of 2021 is in accordance with the Rules. They alleged that the report of the City Surveyor is lawful and even if the defendants are in possession of any excess land, it must be treated as land belonging to the Government. Without prejudice to the pleadings in the written statement, it was contended that if the Court came to the conclusion that the defendants had encroached the land of the plaintiff, then that they had perfected their title over the encroached area by adverse possession. Based on these contentions, the suit was set down for trial and after evidence was concluded, the plaintiff filed an application for appointment of Commissioner for local inspection to fix the boundaries of ‘A’ schedule property. 4. The application was contested by the defendants who claimed that sufficient opportunity was provided to the plaintiff to establish his case and that there was no need for appointment of Commissioner. It was also claimed that if the excess land is in their possession, it belongs to the Government and the plaintiff - 6 - NC: 2025:KHC:6931 WP No. 2635 of 2021 cannot claim right over it. Thus, they claimed that there was no need for appointment of Commissioner for local inspection. The trial Court in terms of the impugned order dated 20.02.2020 rejected the application on the ground that the plaintiff had placed on record, enormous documents and that city survey records were also available. It also held that the application was filed when the suit was set down for arguments. It further held that conducting a survey would delay the proceedings. Being aggrieved by the said order, the plaintiff is before this Court. 5. Learned counsel for the plaintiff contended that the suit is for declaration of title in respect of ‘B’ schedule property and for recovery of possession. He submits that in view of the specific defences raised by the defendants in the written statement that the excess land in their possession belongs to the State Government and in view of the specific contention raised by the plaintiff that there was no Government land in and around ‘A’ - 7 - NC: 2025:KHC:6931 WP No. 2635 of 2021 schedule property, it was necessary to survey and identify ‘A’ schedule property to determine whether the defendants are in possession of ‘B’ schedule property. He contends that the only way to ascertain the encroachment of ‘A’ schedule property by the defendant is through a local survey. He, therefore, submits that in order to aid the trial Court to decide the suit effectively and conclusively, a Commissioner has to be appointed. 6. Per contra, learned counsel for the defendants submitted that a city survey was introduced and that the suit property was surveyed and that in the said survey, it was shown that the property claimed by the plaintiff belongs to the State Government. He, therefore, contends that there is no need for second survey through local inspection. Besides he contends that an application was filed at the belated stage that too when the suit was set down for argument. He also contends that allowing the application would result in delaying the suit and therefore, prays that the petition may be dismissed. - 8 - NC: 2025:KHC:6931 WP No. 2635 of 2021 7. I have considered the submissions of the learned counsel for the plaintiff as well as learned counsel for the defendants. 8. The suit was for declaration of title and for recovery of possession of an urban property and hence, it was incumbent upon the plaintiff to prove every bit of fact pleaded in the plaint. The plaintiff pleaded that defendant Nos.1 to 3 were immediate neighbours and that they had encroached into a portion of ‘A’ schedule property and hence, they filed the suit for declaration of title and recovery of possession of ‘B’ schedule property. The defendants, though, claimed initially that they did not encroach the property of the plaintiff, but later contended that the city survey disclosed that the property claimed by the plaintiff as ‘B’ schedule property, was the land that belonged to the Government. The plaintiff claimed in the plaint that there was no property between the ‘A’ schedule property and the property of defendants which belonged to - 9 - NC: 2025:KHC:6931 WP No. 2635 of 2021 the Government. Therefore, it was necessary for the trial Court to verify this fact and it must have appointed a survey officer as a Court Commissioner to measure the property and fix the boundaries of ‘A’ schedule property based on the title deeds of the plaintiff and submit a report to the Court for effective disposal of the suit. 9. The findings of the trial Court that the documents produced by the plaintiff is sufficient to dispose of the suit may not be correct in view of the specific contention urged by the plaintiff in the plaint that there was no property in and around ‘A’ schedule property, which belongs to the State Government. Therefore, the trial Court must have allowed the application filed by the plaintiff for appointment of Commissioner. In that view of the matter, the impugned order passed by the trial Court deserves to be set aside. Consequently, the following order is passed: - 10 - NC: 2025:KHC:6931 WP No. 2635 of 2021 ORDER (i) Writ petition is allowed. (ii) The impugned order dated 20.01.2020 passed in O.S.No.18/2014 on the file of Prl. Civil Judge and JMFC, Somwarpet, is set aside. The application filed by the plaintiff under Order XXVI Rule 10-A r/w Section 151 of CPC is treated as an application filed under Order XXVI Rule 9 of CPC. A City Surveyor attached to the Office of Taluka Surveyor, Somwarpet, is appointed as the Commissioner, who shall conduct survey of the suit ‘A’ schedule property and fix the boundaries of ‘A’ schedule property as per the title deeds of plaintiff and title deeds of defendant Nos.1 to 3. (iii) It is open for the defendants to submit their objections to the report that may be submitted by the Commissioner. - 11 - NC: 2025:KHC:6931 WP No. 2635 of 2021 (iv) The trial Court shall proceed in accordance with Order XXVI Rule 10 of CPC and accept the report of the Commissioner. (v) Any observations made in the course of this order shall not come in the way of the trial Court disposing the suit on merits. Sd/- (R. NATARAJ) JUDGE PB List No.: 1 Sl No.: 56