- 1 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.51957/2019 (GM-CPC) BETWEEN: SRI. K.M. LAXMANA AGED ABOUT 64 YEARS S/O LATE MUTHANNA GARAGANDUR VILLAGE-571 251 SOMWARPET TALUK, KODAGU DISTRICT. …PETITIONER (BY SRI. CHANDRANATH ARIGA K, ADV.,) AND: 1. SRI. A.R. KRISHNAPPA AGED ABOUT 67 YEARS S/O LATE RAMANNA GARAGANDUR VILLAGE-571 251 SOMWARPET TALUK KODAGU DISTRICT. 2. SMT. NEELAMMA AGED ABOUT 59 YEARS W/O SRI. A.R. KRISHNAPPA GARAGANDUR VILLAGE-571 251 SOMWARPET TALUK KODAGU DISTRICT. 3. SMT. A.K. NAGARATHNA D/O A.R. KRISHNAPPA AGED ABOUT 41 YEARS GARAGANDUR VILLAGE-571 251 SOMWARPET TALUK KODAGU DISTRICT. Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 4. SRI. A.K. JAGADISH S/O A.R. KRISHNAPPA AGED ABOUT 39 YEARS GARAGANDUR VILLAGE-571 251 SOMWARPET TALUK KODAGU DISTRICT. 5. SMT. A.K. BHAGYA D/O A.R. KRISHNAPPA AGED ABOUT 34 YEARS GARAGANDUR VILLAGE-571 251 SOMWARPET TALUK KODAGU DISTRICT. 6. SRI. A.R. JANARDHANA [DELETED AS PER ORDER DTD:16.06.2025]. 7. SMT. THEJASWI [DELETED AS PER ORDER DTD:16.06.2025]. …RESPONDENTS (BY SRI. B.S. SACHIN, ADV., FOR R1 TO R5 R6 & R7 DELETED FROM THE ARRAY OF PARTIES V/O/DTD:16.06.2025) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD.20.11.2019 ON IA NO.XII IN O.S.NO.89/2015 PASSED BY THE SENIOR CIVIL JUDGE AND CJM SOMWARPET (ANNEXURE-E). DISMISS IA NO.XII IN O.S.NO.89/2015 ON THE SENIOR CIVIL JUDGE AND CJM SOMWARPET & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed challenging the order dated 20.11.2019 passed on I.A.No.12 in O.S.No.89/2015 by the Senior Civil Judge, Somawarpet. 2. Sri.Chandranath Ariga K., learned counsel appearing for the petitioner submits that petitioner-plaintiff has filed a suit for declaration, possession and damages against the respondents-defendants, showing schedule 'A' property as a larger property and schedule 'B' property as a part of the schedule 'A' property. It is submitted that the case of the petitioner-plaintiff is that plaintiff has permitted the defendants to reside in schedule 'B' property and the possession handed over to the respondents-defendants is a permissive possession and on denial, the suit is filed. It is further submitted that the respondents-defendants filed a written statement denying the case of the petitioner-plaintiff and at paragraph No.16, a specific assertion is made by the respondents that the very identity of the suit schedule properties is in dispute and they are not in possession of schedule 'B' property. Hence, after - 4 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 conclusion of the trial, petitioner has filed an application under Order XXVI Rule 10A read with Section 151 of CPC seeking appointment of a Court Commissioner to survey and identify the suit 'A' and 'B' schedule properties as well as the property of the respondents-defendants, and the said application came to be rejected by the trial Court on the ground that the issue involved in the suit is different and for the first time the petitioner-plaintiff is claiming that there is encroachment in the application and the said stand of the petitioner is contrary to the plaint. It is also submitted that the trial Court, without appreciating the requirement of the survey, rejected the application by accepting the version of the respondents- defendants and also on the ground that the issue is with regard to possession of the defendants over the suit schedule property. 3. In support of his contention, he placed reliance on the decision of this Court in the case of Sri.Shadaksharappa vs. Kumari Vijayalakshmi and others1 and contended that this Court has held that an application seeking for appointment 1 2023 Supreme (Kar) 325 - 5 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 of Court Commissioner should be generally allowed and given some of the instances where the applications are required to be considered and this being one of such instances, he seeks to allow the application for appointment of Court Commissioner. 4. Per contra, Sri.B.S.Sachin, learned counsel appearing for the respondents-defendants supports the impugned order of the trial Court and submits that the trial Court framed the issues, wherein issue No.2 indicates that whether the plaintiff further proves that the defendants are in possession of the suit schedule 'B' property as licensee. The subject matter of the suit is whether the possession of the respondents-defendants over the suit schedule 'B' property is a permissive possession or not and not the issue relating to encroachment. It is submitted that only in the application filed for appointment of Court Commissioner, an inconsistent plea is taken by the petitioner-plaintiff that the respondents- defendants have encroached the suit schedule property and are in possession, and the petitioner-plaintiff cannot take such an inconsistent plea. In support of his contention, he placed reliance on the decision of the Hon'ble Supreme Court in the - 6 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 case of Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors.2 and also contended that the respondents- defendants can take inconsistent plea and not the plaintiff. 5. It is further submitted that the weakness of the respondents-defendants cannot be a strength of the plaintiff to seek appointment of a Court Commissioner. The issue involved in the suit is relating to the nature of possession held by the respondents-defendants over the suit schedule 'B' property and the said factum is required to be proved by the petitioner- plaintiff by pleading and evidence, which already he has done. Hence, seeking for appointment of Court Commissioner by taking inconsistent plea before the Court is nothing but an abuse of the process of law. In support of his contention, he also placed reliance on the decision of the Hon'ble Supreme Court in the case of Union of India & Others vs. Vasavi Co- operative Housing Society Ltd. & Others3 and submits that the weakness of the defendant cannot be a ground for granting relief to the plaintiff. Hence, he seeks to dismiss the petition. 2 2007(3) Supreme 582 3 2014 Supreme (SC) 19 - 7 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 6. I have heard the arguments of the learned counsel for the petitioner-plaintiff, learned counsel for the respondents- defendants and meticulously perused the material available on record. I have given my anxious considerations to the submissions advanced on both sides. 7. The pleading and material on record indicate that the petitioner has filed a suit in O.S.No.89/2015 against the respondents for declaration that the petitioner is the absolute owner of the suit schedule property which comprises of suit schedule 'B' property and further relief of eviction, delivery of possession and damages. The plaint averments clearly indicate that the respondents-defendants are known to the petitioner- plaintiff, they have approached the petitioner and sought permission to occupy the suit schedule property and as licensees they are in occupation of the schedule 'B' property. The parties have led the evidence. The trial Court framed the issues; issue No.2 in the plaint casts burden on the petitioner- plaintiff to prove that the respondents-defendants are in possession of the schedule 'B' property as licensee. To discharge the said burden, the petitioner-plaintiff adduced the - 8 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 evidence. The contention of the learned counsel for the petitioner is that the petitioner has filed an application under Order XXVI Rule 10A r/w Section 151 of CPC after completion of trial, as the respondents-defendants at paragraph No.16 of the written statement have taken a stand that the identity of the property claimed by the petitioner is in dispute and that they are in occupation of different survey number. Hence, it is necessary to survey the suit schedule 'A' & 'B' properties as well as the property claimed by the respondents-defendants in the written statement. The trial Court, considering the rival contentions, rejected the said application on the ground that the issue involved in the suit is relating to the nature of possession held by the respondents over the suit schedule property, whether it is a permissive possession or not. In my considered view, the trial Court has committed grave error in rejecting the said application. 8. It is not in dispute that the suit is filed by the petitioner for declaration and possession based on the premise that the respondents are in permissive possession over the schedule 'B' property. However, in the written statement, the - 9 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 respondents-defendants have not only denied the nature of possession acquired by them, but they have denied and disputed the very existence and the identity of the suit schedule 'A' & 'B' properties. If the respondents-defendants would not have denied the identity of the property, then the trial Court is justified in rejecting the application. The case of the respondents is that there is a dispute in respect of the identity of the property by the petitioner prior to the purchase of the property and they are in possession of altogether different property. The statement of objections filed to the application of the petitioner is contrary to the written statement filed by them before the trial Court. In the statement of objections, the respondents have taken a contrary stand that there is no dispute with regard to the identity of the boundaries of the land, which is in possession of the respondents. There is no doubt that the trial Court is required to answer the issues framed by it including the issue with regard to the nature of possession of the respondents-defendants over the suit schedule 'B' property as to whether the same is by permissive possession or otherwise. However, to decide the said issue, the issue with regard to the property in which the respondents- - 10 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 defendants are occupying is also required to be gone into as the petitioner has specifically asserted that the respondents are residing in 'B' schedule property as licensees, which has been denied by the respondents-defendants and the denial goes to a further extent of saying that the schedule 'B' property is disputed and they are in occupation of their property in Sy.No.198/1. The claim of the respondents-defendants is with regard to different survey number. Hence, the appointment of Court Commissioner is necessary to find out the disputed assertion of facts by the parties to the proceedings. 9. This Court in the case of Sri.Shadaksharappa referred supra held that the denial of an opportunity seeking appointment of Court Commissioner is amounting to denial of leading evidence to the party. The report of the Court Commissioner would aid the trial Court in deciding the controversy between the parties. Hence, I am of the considered view that the trial Court has committed grave error in rejecting the application. 10. The judgment relied on by the learned counsel for the respondents in the case of Usha Balashaheb Swami - 11 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 referred supra is with regard to the principles of taking inconsistent plea by the petitioner-plaintiff, which is a settled position of law. However, if the petitioner is taking such inconsistent plea in the pleading, definitely the trial Court will have look into the same at the time of deciding the suit. 11. Similarly, in another decision relied on by the learned counsel for the respondents in the case of Union of India & Others referred supra is with regard to the weakness of defendants cannot be a ground to grant relief to the petitioner, again there is no dispute with regard to the said proposition of law. However, those decision on facts differs from the case on hand. 12. In the case on hand, there is no question of weakness or strength of the parties to be gone into at this stage when the application for appointment of court commissioner is sought. Ultimately, the report of the court commissioner would aid the trial Court to decide the dispute between the parties and it would be always open for the respondents to oppose the report if it goes against them by - 12 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 filing objections and if need arises by cross-examining the said Court Commissioner. 13. Learned counsel for the petitioner-plaintiff further submits that a direction may be issued to the trial Court to dispose of the suit in a time bound manner. I am of the considered view that no such direction can be issued to the trial Court to dispose of the suit in a time bound manner. However, the trial Court shall take note of its board and consider the request of the parties for early disposal of the matter in accordance with law. 14. For the aforementioned reasons, I proceed to pass the following: ORDER i. Writ petition is allowed. ii. The impugned order dated 20.11.2019 passed on I.A.No.12 in O.S.No.89/2015 is set aside. iii. Consequently, IA No.12 filed by the petitioner- plaintiff under Order XXVI Rule 10A R/w Section 151 of CPC before the trial Court is allowed. The trial Court is directed to appoint a - 13 - HC-KAR NC: 2025:KHC:25904 W.P. No.51957/2019 Surveyor of the jurisdictional Tahasildar Office as a Court Commissioner to identify suit 'A' and 'B' schedule properties as well as the property claimed by the respondents-defendants and to submit the report. iv. No orders to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 34