1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.12428 OF 2020 (GM-CPC) BETWEEN: P N MANJUNATH AGED ABOUT 48 YEARS S/O LATE B.A.NATARAJ PRESENTLY RESIDING AT NANDIGUNDA VILLAGE, SHANIVARASANTHE HOBLI, SOMWARPET TALUK, KODAGU DISTRICT-571235 EMPLOYED AS PLANTER. ...PETITIONER (BY SMT SINDHU V, ADVOCATE) AND: 1 . SHANIVARASANTHE GRAMA PANCHAYATH REPRESENTED BY ITS PANCHAYATH DEVELOPMENT OFFICER SHANIVARASANTHE, SOMWARPET TALUK, KODAGU DISTRICT-571235. 2 . THE PRESIDENT SHANIVARASANTHE GRAMA PANCHAYATH SHANIVARASANTHE, SOMWARPET TALUK, KODAGU DISTRICT-571235. 3 . PANCHAYATH DEVELOPMENT OFFICER SHANIVARASANTHE GRAMA PANCHAYATH SHANIVARASANTHE HOBLI 2 SOMWARPET TALUK, KODAGU DISTRICT-571235. …RESPONDENTS (BY SRI M.N.MADHUSUDHAN, ADVOCATE FOR R-1 AND R-3; R2 – SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, 1908, PRAYING TO CALL FOR THE RECORDS OF O.S.NO.09/2017 PENDING ON THE FILE OF THE LEARNED SENIOR CIVIL JUDGE AND JMFC, SOMVARPET, KODAGU AND SET ASIDE THE ORDER DATED MARCH 4, 2020 AT ANNEXURE-A PASSED IN IA NO.3 IN O.S.NO.9/2017 BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, SOMVARPET KODAGU AND ALLOW THE PRAYER IN IA NO.3 AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER This writ petition is filed under Articles 226 and 227 of the Constitution of India seeking to issue writ of certiorari, to set aside Order dated 04.03.2020 in O.S.No.9/2017, on IA No.3 passed by the Senior Civil Judge at Somwarpet (hereinafter referred to as ‘the trial Court’ for short). 2. The petitioner herein is the plaintiff before the trial Court and respondents herein are the defendants before the trial Court. 3 3. The plaintiff has filed IA No.3 filed under Order XXVI Rule 9 read with Rule 10-A and Section 75 of the Code of Civil Procedure, 1908, seeking appointment of a Court Commissioner to conduct a local investigation of the suit schedule property described in O.S.No.9/2017. 4. The plaintiff has filed IA No.3 in O.S.No.9/2017, to appoint any advocate of the Somwarpet Bar Association as Court Commissioner, to investigate and survey the suit schedule property to aid the Court in resolving the matter. 5. The brief facts of the case are as under: The petitioner herein instituted O.S.No.9/2017 in respect of the suit schedule property measuring 0.50 acres (50 cents) being a redeemed mane dala bearing Sy.No.116 situated at Hemmane Village, Shanivarasanthe Hobli, Somwarpet Taluk, Kodagu District. The said land was originally granted in favour of the petitioner’s mother, Smt.Saraswathy, by the Tahsildar of Somwarpet Taluk by Order No.LND/610/68-69 dated 21.10.1969, whereupon the land was surveyed and bifurcated from the original survey number and assigned new survey No. 116/11; a Saguvalli Chit was issued in favour of Smt.Saraswathy, and 4 subsequently Patta Book and Khata were issued to her, and she was in absolute possession and enjoyment of the suit schedule property. The registered Gift Deed dated 16.07.2013 (Document No. 826/2013-14 in Book No. 1 at the Sub-Registrar’s office, Somwarpet, Kodagu District) was executed by Smt.Saraswathy conveying the said property to the petitioner, and thereafter Deed of Rectification dated 05.12.2013 (Document No. 1747/2013-14 in Book No. 1 at the Sub-Registrar’s office, Somwarpet) was executed to rectify the Gift Deed; pursuant thereto the petitioner obtained transfer of Khata and change of name in the revenue records and became the absolute owner in possession and enjoyment of the suit schedule property. 6. 6. It is further submitted that on 24.01.2014 respondent No.3, namely the P.D.O. of the Shanivarasanthe Grama Panchayat, interfered with the petitioner’s possession of the suit schedule property, whereupon the petitioner issued a cease and desist notice and filed O.S.No.57/2014 before the Senior Civil Judge at Madikeri seeking declaration and injunction against respondent No.3; respondent Nos. 1 to 3 filed a counterclaim in 5 O.S. No. 57/2014. In view of the pre-requisite to issue notice under Section 289 of the Panchayath Raj Act, 1993, the petitioner withdrew O.S.No.57/2014 on 22.03.2016 with liberty to file a fresh suit; the respondents’ counterclaim was dismissed on 28.06.2016. It is alleged that, taking advantage of the withdrawal, the respondents unlawfully encroached upon the suit schedule property on 01.04.2016. Aggrieved by the same the petitioner filed O.S.No.9/2017 before the learned Senior Civil Judge and JMFC, Somwarapet, Kodagu. 7. It is the specific case the defendants that the respondents appeared and filed a written statement, by denying the plaint averments and contended that 4.90 acres in Sy.No.116/41 of Hemmane and 0.10 acre in Sy.No.78/83 of Bidrarur, totaling 5.00 acres in a compact block, were vested in the erstwhile Shanivarasanthe Municipality by the Revenue Department in 1980-81, and had been in municipal possession since 1968-69, being used as a market area (Santhemala) with fenced boundaries and gated entrances for orderly business purposes; market buildings were constructed for public use and a vacant yard maintained for wholesale storage and parking, with uninterrupted possession by the municipality and its successor, 6 Shanivarasanthe Grama Panchayath under the Panchayath Raj Act, 1993, for over five decades. 8. It is alleged that the plaintiff first trespassed into this area in the fourth week of December 2013, attempting to erect a fence, which was resisted by the predecessor of the defendant No.3, leading to an emergency board meeting on 29.12.2013 and a complaint to the police and Tahsildar, which was not acted upon due to civil dispute classification. Further, it is contended that the plaintiff has acted without clean hands, has been inconsistent regarding identification of the suit property, suppressed a prior sale by his mother to one Nirupkumar of Edahalli village for Rs.20,000/- vide registered sale deed dated 08.06.1987, and has altered boundaries at will, with his own sketch reflecting different boundaries, thereby failing to establish a definite claim. 9. Based on the pleadings, the learned trial Court framed the following issues for its consideration: (1) Whether the Plaintiff proves that he is the owner of the suit property? (2) Whether the Plaintiff further proves that the Defendants have encroached the suit property? (3) Whether the suit is barred by Limitation? 7 (4) Whether the Plaintiff is entitled to relief as prayed for? (5) What Order or Decree? 10. It is submitted that both parties led evidence and, on the pleadings and the respondents’ denial of the existence, identity, location, boundaries and possession of the suit schedule property in their written statement, the petitioner filed IA No. 3 under Order XXVI Rule 9 read with Order XXVI Rule 10-A and Section 75 of the Code of Civil Procedure, 1908 praying that this Court appoint an Advocate of the Somwarpet Bar Association as Court Commissioner with direction to obtain the assistance of a competent Surveyor attached to the office of the ADLR of Somwarpet Taluk to conduct local investigation and survey of the suit schedule property and to report upon the existence, identity, boundaries, location and possession of the suit schedule property and to produce the sketch and P.T. Sheet prepared at the time of survey. The respondents filed objections to IA No.3. 11. The learned trial Court, by order dated 04.03.2020, dismissed IA No.3. The observation of the trial Court produced here as under:- 8 “6….. So in view of the contention of the both parties in their evidence we have to see whether the plaintiff established his right over the property and also the defendants encroached upon the suit property. On the other hand defendants have to establish that the suit property is given to them by the Municipality. Under such circumstances it is not appropriate to appoint the commissioner for conducting survey of the suit schedule property. Because as per the version of the plaintiff it is granted to his mother and his mother gifted the same to him in the year 2013. Hence under such circumstances it is not proper to appoint the commissioner for conducting survey. Because it is the duty of the plaintiff to establish his right over the property. He cannot make use of court for collecting evidence for his case. 7. The plaintiff also relied on some of the citations as mentioned in the written argument. On perusal of the same, when the identification of the property of the dispute, in order to demarcate the properties the commissioner is appointed but it is not the case in hand. Hence, with due respect to the citations relied by the plaintiffs, I am of the opinion that it is not helpful to the case of the plaintiff. 12. Being aggrieved by the observations and findings in the impugned order dated 04.03.2020 dismissing IA No.3, the Petitioner has approached this Court by way of the present writ petition, contending that the impugned order is erroneous for the grounds which are without prejudice to each other. 9 13. It is contended by the learned counsel appearing for the petitioner that the respondents, being in wrongful possession of the suit schedule property, had specifically disputed the identity, boundaries, location, and even the existence of the property in their written statement. In view of these disputes, the petitioner sought appointment of a Court Commissioner, aided by a competent surveyor, to ascertain the existence, identity, boundaries, location, and possession of the property, including obtaining the relevant Sketch and P.T. Sheet. 14. It is contended that the trial Court, however, erroneously observed that the identity of the property was not under dispute and held that the petitioner could not use the Court to “collect evidence,” thereby ignoring that the purpose of a local investigation is to obtain evidence that can only be ascertained on the spot. The trial Court further misdirected itself by equating the Commissioner’s role with revenue surveys, whereas the intended purpose is for judicial local investigation under Order XXVI of the CPC. 15. It is further contended that the respondents’ objections to I.A.No.3, claiming that the property is unidentifiable, that no 10 sketch or akara band exists, and that the petitioner may fabricate documents through the Commissioner, were considered by the trial Court. The petitioner argued, and this Court concurs, that such objections highlight the necessity of local investigation to ascertain the true facts regarding the property and the admitted wrongful possession by the respondents. The conclusion of the trial Court that the appointment of a Commissioner is unnecessary reflects a failure to appreciate the distinction between “collecting evidence” and “obtaining evidence,” resulting in grave prejudice to the petitioner’s right to effective adjudication. 16. It is also contended that the principles enunciated in the case of Janab Nizar Ahmed Sheriff v. A. Kannan, reported in 1999 (3) KLJ 359, and in the case of Shreepat v. Rajendra Prasad & Ors., reported in 2000 (7) JT SC 379, are squarely applicable. In cases where the identity, area, or boundaries of property are disputed, the Court is empowered to unilaterally appoint a Commissioner to ascertain the true facts, thereby preventing miscarriage of justice. The respondents, being a Grama Panchayat, cannot obstruct the administration of justice by refusing consent for local investigation. The impugned order 11 demonstrates a lack of judicious application of Order XXVI Rule 9 of the CPC, and fails to give any reasoned appreciation of the necessity and purpose of the Commissioner’s appointment in the context of the factual disputes. 17. Heard learned counsel appearing on either side. 18. On hearing the submissions of the learned counsels for both the parties, on perusal of the material placed on record and on perusal of the impugned Order of the trial Court, this Court is of the opinion that a Commissioner can be appointed to note down the existence of physical features. Therefore, it would be suffice to rely 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 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 19. In view of the above discussion, it is directed that the impugned Order dated dated 04.03.2020 in O.S.No.9/2017, on IA No.3 passed by the Senior Civil Judge at Somwarpet, is hereby set aside and the trial Court is directed to appoint a Court Commissioner under Order XXVI Rule IX of CPC to conduct a local investigation of the suit schedule property described in O.S.No.9/2017. The Writ Petition is allowed. Sd/- (DR. K.MANMADHA RAO) JUDGE BNV