- 1 - HC-KAR NC: 2025:KHC:40754 WP No. 6 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 6 OF 2021 (GM-CPC) BETWEEN: 1. SRI T.N. NARAYANAPPA S/O NARASIMHA MURTHY AGED ABOUT 66 YEARS. 2. N. SREENIVAS YADAVA S/O NARASIMHA MURTHY AGED ABOUT 57 YEARS. 3. T.C. PUTTAKAVALLAPPA S/O LATE CHOWDAPPA AGED ABOUT 76 YEARS. PETITIONER NO.1 TO 3 ARE R/A THIMMANAHALLI VILLAGE HOLAVANAHALLI HOBLI, KORATAGERE TLAUK TUMKUR DISTRICT - 572 129. 4. T.N. NARASIMHAMURTHY S/O LATE NARASAYAPPA AGED ABOUT 80 YEARS. 5. T.N. LAKSHMINARASAIAH S/O LATE NARASAYAPPA AGED ABOUT 72 YEARS. PLAINTIFF NO. 4 & 5 ARE R/A THIMMANAHALLI VILLAGE HOLAVANAHALLI HOBLI KORATAGERE TLAUK TUMKUR DISTRICT - 572 129. 6. T.K. NARASIMHAMURTHY S/O KRISHNAMURTHY AGED ABOUT 61 YEARS. Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40754 WP No. 6 of 2021 7. KAMAKKA D/O LATE RANGEGOWDA AGED ABOUT 69 YEARS. 8. RAJANNA S/O CHIKKAKADURAPPA AGED ABOUT 56 YEARS. 9. RAMESH S/O LATE KRISHNAPPA AGED ABOUT 52 YEARS. PLAINTIFF NO. 6 TO 9 ARE R/O THIMMANAHALLI HOLAVANAHALLI HOBLI KORATAGERE ALUK TUMKUR DISTRICT - 572 129. …PETITIONERS (BY SRI YASHWANTH NETAJI N.T, ADV., FOR SRI K.V. NARASIMHAN, ADV.) AND: SRI RAMAKRISHNAIAH S/O NARASEGOWDA (KENJIGAPPA) AGED ABOUT 56 YEARS R/O HIMMANAHALLI VILLAGE HOLAVANAHALLI HOBLI KORATAGERE TALUK TUMKUR DISRICT - 572 129. …RESPONDENT (BY SRI HARISH H.V, ADV.) THIS W.P. IS FILED UNDER ATICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER AT ANNEXURE-G PASSED BY THE LEARNED CIVIL JUDGE AND JMFC AT KORATAGERE IN O.S.NO.113/2009 DTD.27.8.2020. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY - 3 - HC-KAR NC: 2025:KHC:40754 WP No. 6 of 2021 ORAL ORDER 1. This writ petition under Article 227 of the Constitution of India is filed by the plaintiffs with a prayer to set-aside the order dated 27.08.2020 passed on IA filed by the plaintiffs under Order XXVI Rule 9 of CPC in OS No.113/2009 by the Court of Civil Judge and JMFC, Koratagere. 2. Heard the learned counsel for the parties. 3. Plaintiffs have filed OS No.113/2009 with a prayer to grant a decree for declaration and mandatory injunction. In the said suit, after the evidence of both the parties was recorded, an application under Order XXVI Rule 9 of CPC was filed on behalf of the petitioners with a prayer to appoint Advocate Court Commissioner for measurement of the suit schedule property pathway shown as A, B, C and D in the rough sketch of the suit schedule property and submit a report as per the memo of instructions of both the parties. The said application was opposed by the contesting defendant by filing objections. The Trial Court vide the order impugned has dismissed the said application and being aggrieved by the same, plaintiffs are before this Court. - 4 - HC-KAR NC: 2025:KHC:40754 WP No. 6 of 2021 4. In the suit, a prayer is made by the plaintiffs to declare property marked as A, B, C, D in the suit schedule sketch as part and parcel of the public road and a mandatory injunction is also sought against the defendant to demolish the unauthorised construction put-up by him on the property marked as A, B, C, D in the suit schedule sketch. It is the specific case of the plaintiffs that defendant has encroached public road and has constructed a residential house in a portion of the public road. In the present case, evidence of both the parties is already recorded. It is trite that in a case where allegation of encroachment is made, in normal circumstances, if an application is filed seeking appointment of Commissioner so as to measure the property in dispute and find out if there is any encroachment, such an application is required to be allowed so that the Commissioner's Report would assist the Court for proper adjudication of the dispute between the parties. The Commissioner's Report cannot always considered to be an evidence which is collected on behalf of the party making such application. - 5 - HC-KAR NC: 2025:KHC:40754 WP No. 6 of 2021 5. In the case of N. Swamygowda vs. Ramegowda and Others - ILR 2010 KAR 897, this Court has observed that the object of local inspection is not so much to collect the evidence, which can be taken in the Court, but to obtain the evidence, which from its very peculiar nature can only be had at the spot. It is also observed that if there is a serious dispute with regard to the area and the boundaries of land in question, the non- appointing of the Court Commissioner would result in serious miscarriage of justice. 6. In the case of Anil Kamalakar Shirodkar vs. Dudhappa Santu Patil and Others - ILR 2001 KAR 5013, this Court has held that when there is a contest between the parties regarding the encroachment of the property or otherwise and when the correct extent and boundary of the property are in dispute, it is just and necessary that a survey has to be conducted and the boundaries of the property has to be identified. In such a situation, the appointment of the Commissioner should not be mistaken as appointment of Commission for collecting evidences for a party to the suit. Since there is a serious allegation in the present case about - 6 - HC-KAR NC: 2025:KHC:40754 WP No. 6 of 2021 defendant encroaching the public property and constructing a residential house in a portion of the said property, the Trial Court was not justified in rejecting the application. Under the circumstances, I am of the opinion that the order impugned is liable to be set-aside. Accordingly, the following order:- 7. The writ petition is allowed. The order impugned dated 27.08.2020 passed on IA filed on behalf of the plaintiffs under Order XXVI Rule 9 of CPC by the Court of Civil Judge and JMFC, Koratagere, is hereby set-aside and the Trial Court is directed to appoint an Advocate as Court Commissioner for the purpose of measuring the suit schedule property pathway with the assistance of a local Surveyor and thereafter, file a report in accordance with law. Sd/- (S VISHWAJITH SHETTY) JUDGE DN List No.: 1 Sl No.: 38