- 1 - HC-KAR NC: 2025:KHC-D:10642 WP No. 101679 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 101679 OF 2016 (GM-CPC) BETWEEN: 1. SHRI SOMANNA LAXMAN KHARDE, SINCE DECEASED, REPRESENTED BY LRS. 1A. SMT. URMILA W/O. LAXMAN PAWAR, AGE: 75 YEARS, OCC: HOUSEHOLD WORK, R/O. H.NO.4387, CHAVAT GALLI, BELAGAVI. 1B. SMT. LATA W/O. MOHAN LAD, AGE: 66 YEARS, OCC. HOUSEHOLD WORK, R/O. H.NO.144, VISHNU GALLI, VADAGAON, BELAGAVI. 1C. SURESH S/O. SOMMANNA KHARDE, AGE: 64 YEARS, OCC: AGRICULTURE, R/O. H.NO.45, BANDUR GALLI, ANGOL, BELAGAVI-590006. 1D. VARSHA W/O. PRAKASH HANDE, AGE: 60 YEARS, OCC: HOUSEWIFE, R/O. H.NO.1508, GANESHPUR GALLI, SHAHAPUR, BELAGAVI. 1E. SUMAN W/O. SUDHAKAR PATIL, AGE: 58 YEARS, OCC: TEACHER, R/O. H.NO.4737/23B, GURUPRASAD NIVAS, Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:10642 WP No. 101679 of 2016 SHIVSAMARTH GALLI, BEROBA MAL, NIPANI, DIST. BELAGAVI. 1F. SANJIVANI W/O. SANJAY LAD, AGE: 52 YEARS, OCC: HOUSEWIFE, R/O. H.NO.4159, JAI MAHLAR NAGAR, KHANAPUR ROAD MACHE, BELAGAVI. 1G. SUSMA W/O, SUNIL LAD, AGE: 46 YEARS, OCC: HOUSEWIFE, R/O. H.NO.144, VISHNU GALLI, VADAGAON, BELAGAVI. …PETITIONER (BY SRI. SANGRAM S. KULKARNI, ADVOCATE) AND: THE BELGAUM URBAN DEVELOPMENT BOARD, BELAGAVI, R/BY ITS COMMISSIONER. …RESPONDENT (BY SRI. M. A. HULYAL, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR CERTIORARI AND QUASH THE IMPUGNED ORDER IN EP.NO.99/2000, PASSED BY THE EXECUTING COURT 1ST ADDITIONAL CIVIL JUDGE AND JMFC, BELAGAVI DATED 23.11.2015, VIDE ANNEXURE-B. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:10642 WP No. 101679 of 2016 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This writ petition is filed seeking for following reliefs: “1. Issue a writ or certiorari and quash the impugned order in E.P.No.99/2000 passed by the executing court 1st Additional Civil Judge & JMFC, Belagavi dated 23.11.2015 vide Annexure-B. 2. Issue any other writ, order or direction to which the petitioner is found entitled to in the present facts and circumstances.” 2. Heard Sri. Sangram S. Kulkarni, learned counsel appearing for the petitionerS submits that the petitioners filed a suit against the respondent/authority for relief of permanent injunction, which came to be decreed and the appeal filed by the respondent in R.A.No.79/1992 was dismissed. Thereafter, the petitioners filed execution petition in E.P.No.99/2000 complaining that in violation of the judgment and decree in O.S.No.231/1991, the respondent/authority has encroached 17 guntas of the petitioners land in Sy.No.38/5/3 of Angol village. 3. It is further submitted that the Court Commissioner came to be appointed and though the petitioners have not - 4 - HC-KAR NC: 2025:KHC-D:10642 WP No. 101679 of 2016 cross-examined the said Commissioner, the respondent/authority cross-examined him. Wherein, he has categorically stated that there are no documents available with regard to the subject property. It is also submitted that the petitioners have made the documents available and the decree itself is very clear with regard to the property. Hence, Court Commissioner ought to have given a proper report as to whether the respondent/authority has encroached the land of the petitioner in violation of the decree and no such exercise has been carried out by the Court Commissioner, however, the trial Court accepted the Commissioner’s report and proceeded to close the execution proceedings, which is impugned herein. It is submitted that the matter may be remanded back to the executing Court to redo the exercise of identification of the property and then to find out whether there is an encroachment by the respondent/authority or not. Hence, he seeks to allow the petition. 4. Sri. M.A.Hulyal, learned counsel appearing for the respondent/authority vehemently opposed the writ petition and submits that though the appeal filed by the - 5 - HC-KAR NC: 2025:KHC-D:10642 WP No. 101679 of 2016 respondent/authority is dismissed in R.A.No.79/1992, the executing Court has appreciated the evidence available on record and has rightly come to the conclusion that the petitioner has failed to establish before the trial Court that the respondent/authority has encroached the property claimed by the petitioner. It is further submitted that the property claimed by the petitioner is not in existence and the petitioner has not placed any documents before the executing Court nor before this Court to show that his property measuring 17 guntas has been encroached by the authority. Taking note of the evidence, the trial Court rightly rejected the petition filed by the petitioner in E.P.No.99/2000 under the impugned order, which does not call for any interference. Hence, he seeks to dismiss the petition. 5. I have heard the arguments of learned counsel for the petitioners, learned counsel for the respondent and meticulously perused the material available on record. 6. The material available on record indicates that the petitioner has filed O.S.No.231/1991 for relief of permanent injunction against the respondent/authority. The said suit came - 6 - HC-KAR NC: 2025:KHC-D:10642 WP No. 101679 of 2016 to be decreed by issuing injunction against the respondent/authority. Being aggrieved, the respondent/ authority filed regular appeal in R.A.No.79/1992 which came to be dismissed. The petitioner initiated the execution proceedings under Order 21 Rule 31 complaining that the respondent in violation of the judgment and decree of the trial Court encroached the land of the petitioner measuring 17 guntas in Sy.No.38/5/3 of Angol village. The trial Court appointed the Court Commissioner to find out the assertion made by the petitioner. The Court Commissioner submitted the report and the said report came to be accepted by the trial Court and the proceedings were closed. The cross-examination of the Court Commissioner indicates that there were no records available insofar as Sy.No.38/5/3 is concerned. The Court Commissioner admittedly has not given any report as to whether the respondent/authority has encroached the suit schedule properties or not. If the Court Commissioner found that the records are not available, he should have informed the executing Court with regard to the same and should have expressed that he is unable to find out whether there is encroachment or not. In the absence of any such clear report of - 7 - HC-KAR NC: 2025:KHC-D:10642 WP No. 101679 of 2016 the Court Commissioner, I am of the considered view that interest of justice would be met if trial Court is directed to appoint a jurisdictional surveyor to survey the property in question as to find out whether there is a encroachment of the suit schedule property by the respondent/authority or not based on the documents available on record. It is also open for the petitioners to produce the documents in support of his claim with regard to Sy.No.38/5/3 of Angol village to facilitate the Court Commissioner to find out whether the property claimed by the petitioner has been encroached by the respondent or not. In view of the matter, I am of the considered view that the trial Court is required to appoint jurisdictional surveyor as Court Commissioner and proceed further. Hence, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 23.11.2015 passed in Execution Petition No.99/2000 by the I Additional Civil Judge and JMFC, Belagavi is set aside. The executing Court is directed to appoint a jurisdictional - 8 - HC-KAR NC: 2025:KHC-D:10642 WP No. 101679 of 2016 surveyor as Court Commissioner with a direction to the said Commissioner to find out firstly, whether the property claimed by the petitioners in Survey No.38/5/3 measuring 17 guntas of Angol village exists and thereafter, find out whether there is encroachment or not as claimed by the petitioners. iii. It is made clear that this Court has not expressed any opinion whatsoever on the merits of the case. iv. It is open for the respondent to produce any documents or records if they intend to produce either in the execution proceedings or before the Commissioner so that he can place appropriate report before the Execution Court. v. No orders as to costs. Sd/- (VIJAYKUMAR A.PATIL) JUDGE RKM /CT-AN List No.: 1 Sl No.: 2