1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF SEPTEMBER 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.42502 OF 2019 (GM-CPC) BETWEEN: T. T. RAJESH S/O LATE T.N. THANGAPPAN AGED ABOUT 46 YEARS R/AT: 7TH HOSAKOTE VILLAGE SOMWARPETE TALUK, KODAGU DISTRICT -571 236. ...PETITIONER (BY SRI. SANGAMESH R.B., ADVOCATE) AND: 1 . T. N. BABU S/O LATE Y.K. NARAYANAN AGED ABOUT 60 YEARS R/AT: 7TH HOSAKOTE VILLAGE, SOMWARPET TALUK, KODAGU DISTRICT 3 571 236. 2 . T.T. RAKESH S/O T.N. THANGAPPAN AGED ABOUT 42 YEARS R/AT: 7TH HOSAKOTE VILLAGE, SOMWARPET TALUK, KODAGU DISTRICT 3 571 236. 3 . SMT. T.T. NALINI W/O LATE T.N. THANGAPPAN AGED ABOUT 70 YEARS, R/AT: 7TH HOSAKOTE VILLAGE SOMWARPETE TALUK, KODAGU DISTRICT - 571 236. &RESPONDENTS (BY SRI. CHANDRANATH ARIGA K., ADVOCATE FOR R1; V/O DTD: 08.08.2024, R2 & R3 IS DISPENSED WITH) 2 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI SO AS TO QUASH THE IMPUGNED ORDER DATED 26.8.2019 PASSED ON I.A.NO.15 FILED UNDER ORDER 26 RULE 9, CPC ON THE FILE OF SR.CIVIL JUDGE, SOMWARPET, KODAGU DISTRICT IN O.S.NO.95/2013 [ANNEXURE-A] AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 06.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER The present Writ Petition is filed by the petitioner (defendant No.1) challenging the order dated 26.08.2019 passed in O.S.No.95/2013, on I.A.No.15/2019 filed under Order XXVI Rule 9 of the CPC on the file of Senior Civil Judge, Somwarpete, Madikeri District (8the trial court for short) seeking appointment of Court Commissioner to survey the suit property. 2. The petitioner herein is the defendant No.1 before the trial Court and the respondent No.1 herein is the plaintiff before the trial Court and the respondents No.2 and 3 herein are the defendants No.2 and 3 before the trial Court. 3. For convenience of reference the parties are referred as arrayed before the trial Court. 4. The Brief facts of the case are as follows: The defendant No.1 filed this I.A. for seeking appointment of Court Commissioner to survey the suit property. The same has been considered by the trial Court. The defendant contended that though the partition deed dated 31.03.1981 was entered into between the plaintiff, his brothers, father and the defendant9s father, the boundaries of the properties allotted to each sharer were not specifically demarcated, as at that time there was a harmonious relationship among the members. It was further urged that the property is a vast extent of land and, in the absence of precise identification of the starting and end points of each share, there is possibility of misuse of the common area, and therefore, appointment of a government surveyor would facilitate proper adjudication of the dispute. On the other hand plaintiff opposed, stating that the suit is for declaration and injunction in respect of the schedule property, the boundaries are clearly described in the plaint and tally with the partition deed marked as Ex.P15, and the application is filed only to delay the proceedings, as evidence is already closed and the matter was posted for arguments. 4 On perusal, the trial Court finds that the plaintiff has filed the suit for declaration and injunction alleging interference by the defendants in the suit schedule property which had fallen to his share under the partition dated 31.03.1981. The defendants themselves, in their written statement, have admitted the partition and possession of respective shares, and there is no dispute as to the boundaries which are already recorded. The application, filed at the stage of arguments, is only to collect evidence and protract the matter. Hence, Defendant No.1 has not made out sufficient grounds. Accordingly, I.A. No.15 under Order XXVI Rule 9 CPC was dismissed. 5. It is contended by the learned counsel for the petitioner that defendant No.1 has specifically pleaded that though separate properties were allotted to each party, certain portions such as pathways, right of way, rights to draw water from wells, tanks, streams and other easements were kept for common use. Since the boundaries of the respective shares were not fixed by the authorities after partition, and in view of disputes arising between the parties, it has become necessary to demarcate the exact boundaries and to identify the common areas in the suit schedule property. 5 6. It is further urged that the application was filed at the proper stage after completion of evidence, since neither oral nor documentary evidence can effectively establish the common areas left in the partition deed which does not specifically describe them, nor were the actual measurements and boundary demarcations effected by the shareholders. In such circumstances, appointment of a Commissioner is necessary for proper adjudication of the case, as only a Commissioner9s report can assist in identifying exact boundaries and common areas. 7. It is also contended that the trial Court without appreciating the facts on record, mechanically rejected the application filed by the petitioner herein. It is further contended that the Order passed by the trial Court is not in accordance with law as the same is passed without application of mind and in a cavalier manner. Hence, the present petition. 8. On the other hand, Learned counsel for Respondent No.1 contended that the Order passed by the trial Court is a well- reasoned Order and no interference is called for. 6 9. Heard learned counsel appearing for the petitioner and counsel appearing for Respondent No.1, having considered the contentions advanced, this Court is of the view that the suit is filed seeking for the relief of declaration. Admittedly, there is no dispute with regard to the property is concerned, the main dispute is with regard to the common area and identification and non-fixation of boundaries, i.e., starting point to end point of the property, i.e.., where exactly the share begins and ends. Unless the same is definitely marked and identified, there is every chance of the present circumstance being misused after the disposal of the suit. Apart from that, marking and fixing the definite boundaries to the suit schedule property will certainly adjudicate the dispute once for all and all disputes would be easily resolved and the report of the Commissioner would certainly assist the Court to adjudicate the matter effectively. It is clearly stated under Order VII Rule 3 of CPC that the plaint shall specify the boundaries. Order VII Rule 3 of CPC reads thus: <Where the subject-matter of the suit is immovable property.- Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or 7 numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.= 10. It would be relevant to look into the following Judgments: Aravind Kumar Agarwal vs M/s Legend Estates Private Limited reported in 2014 SCC Online Hyd 1152. 3. Ordinarily, in a suit for injunction, an Advocate Commissioner is not appointed to gather evidence. Only in cases where there is a serious dispute regarding identity of the property or boundaries thereof, an Advocate-Commissioner can be appointed even in the suits filed for injunction (See : Haryana Wakf Board v. Shanti Sarup and Varala Ramachandra Reddy v. Mekala Yadi Reddy). Bandaru Mutyalu v. Palli Appalaraju, reported in (2013) 6 ALT 26. Learned single Judge of composite High Court of Andhra Pradesh held that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared and the object of local investigation under Order XXVI, Rule 9 of the Code which cannot belittled. Mallikarjuna Srinivasa Gupta v. K. Sheshirekha, reported in (2006) 3 ALD 362. In a suit filed for declaration of title and recovery of possession etc., interlocutory application was filed contending inter alia that the defendant in the suit encroached a portion of 8 the site. Defendant denied the averment in the plaint regarding encroachment. It was further pleaded about earlier suit filed for injunction and dismissal of application in that suit. Learned single Judge of composite high court of Andhra Pradesh held as follows: <By mere looking into the sale deed or the lay out, it is not possible to determine the rights, unless it is verified whether any portion of the building is constructed in Plot Page 5 of 8 Page 6 of 8 No. 62. Therefore, it is essential to consider the request of the petitioner for appointment of Advocate Commissioner for the purpose mentioned therein=. Shaik Zareena Kasam v. Patan Sadab Khan, reported in (2011) 4 ALD 231, learned single Judge of the composite High Court of Andhra Pradesh held at Para-10 as follows: <Whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by another party, the facts have to be physically verified, because, the recitals of the documents may not reveal the true facts and measuring of land on the spot by a Surveyor may become necessary.= In Donadulu Uma Devi v. Girika Katamaiah @ Basaiah, reported in (2013) 1 ALT 548 learned single Judge of the composite High Court of Andhra Pradesh held as follows: <12. & that when there is a dispute or issue with regards to identity of a property in a litigation it is necessary to appoint a Commissioner for localizing the property which may be even by taking necessary 9 assistance from a qualified surveyor which will not amount to collecting evidence which is prohibited.= In Haryana Waqf Board v. Shanti Sarup, reported in (2008) 8 SCC 671 the Hon'ble Apex Court held thus: <Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC=. Jayalakshmi Constructions, Hyderabad v. Nawab Behboob Ali Khan, 2005 SCC OnLine AP 982 : (2006) 2 ALD 363 : (2006) 2 ALT 132 at page 365 11. On the other hand, the learned counsel appearing for the respondents seeks to contend that a Commissioner can be appointed to note down the existence of physical features and there is every distinction between the appointment of a Commissioner under Order 26, Rule 9 and Order 39, Rule 7 of the Code. He seeks to place reliance upon a 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 10 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.= 12. In view of the above discussion, it is directed that the impugned Order dated 26.08.2019 passed in O.S.No.95/2013, on I.A.No.15/2019 filed under Order XXVI Rule 9 of the CPC on the file of Senior Civil Judge, Somwarpete, Madikeri District, is hereby set aside and the trial Court is directed to appoint a Court Commissioner under Order XXVI Rule IX of CPC to note down the existence of physical features of the property. The Writ Petition is allowed. Sd/- (DR. K.MANMADHA RAO) JUDGE bnv