- 1 - NC: 2025:KHC-D:5228 WP No. 104300 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF MARCH, 2025 BEFORE THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO. 104300 OF 2023 (GM-CPC) BETWEEN: SMT. A. MAYAMMA D/O. LATE A.SIDDALINGAPPA, W/O. B.BASAVARAJAPPA, AGE: 60 YEARS, OCC: AGRICULTURIST, R/O: KALAPURA-VILLAGE IN KUDLIGI-TALUK, NOW KOTTURU-TALUK, BALLARI-DIST, NOW VIJAYANAGARA DISTRICT-583 211. … PETITIONER (BY SRI. MANJUNATHA G.PATIL., ADVOCATE) AND: 1. SMT. UMMAR RASOOL-MAA-BEE W/O. IMAM HUSSAIN SAB, SINCE DEAD BY LR’S, BEEBI D/O. HIMAM SAB, MUSLIM, AGED ABOUT 65 YEARS, R/O: UJJINI-VILLAGE, KOTTURU-TQ, VIJAYANAGGARA-DT-583 211. 2. BASHEER D/O. HIMAM SAB MUSLIM, AGED ABOUT 63 YEARS, R/O: UJJINI-VILLAGE, KOTTURU-TQ, VIJAYANAGARA-DT-583 211. 3. NOORJA D/O. HIMAM SAB, MUSLIM, AGED ABOUT 60 YEARS, R/O. UJJINI-VILLAGE, KOTTURU-TQ, VIJAYANAGARA-DT-583 211. Digitally signed by PREMCHANDRA M R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:5228 WP No. 104300 of 2023 4. MABUNNI D/O. HIMAM SAB, MUSLIM, AGED ABOUT 58 YEARS, R/O. UJJINI-VILLAGE, KOTTURU-TQ, VIJAYANAGARA-DT-583 211. 5. KALAM SAB S/O. HIMAM SAB, MUSLIM, AGED ABOUT 56 YEARS, R/O: UJJINI-VILLAGE, KOTTURU-TQ, VIJAYANAGARA-DT-583 211. 6. SALAM SAB S/O. HIMAM SAB, MUSLIM, AGED ABOUT 54 YEARS, R/O: UJJINI-VILLAGE, KOTTURU-TQ, VIJAYANAGARA-DT-583 211. 7. UMARI S/O. HIMAM SAB MUSLIM, AGED ABOUT 52 YEARS, R/O: UJJINI-VILLAGE, KOTTURU-TQ, VIJAYANAGGARA-DT-583 211. 8. ESHAK S/O. HIMAM SAB MUSLIM, AGED ABOUT 50 YEARS, R/O. UJJINI-VILLAGE, KOTTURU-TQ, VIJAYANAGARA-DT-583 211. … RESPONDENTS (BY SRI. HANUMANTHREDDY SAHUKAR., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS. THIS WRIT PETITION IS LISTED FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, AN ORDER IS MADE AS UNDER: ORAL ORDER Sri.Manjunath G.Patil., counsel for the petitioner and Sri.Hanumanthreddy Sahukar., counsel for the respondents have appeared in person. - 3 - NC: 2025:KHC-D:5228 WP No. 104300 of 2023 2. The captioned Writ Petition is filed seeking a Writ of Certiorari to set aside the order dated 11.01.2023 passed by the Court of the Civil Jude and JMFC, at Kudligi, Vijayanagar on I.A. No.6 in O.S. No.37/2013 vide Annexure-E. 3. For sake, the parties are referred to as per their status and rankings before the Trial Court. 4. The brief facts are these: The plaintiff filed suit for declaration and permanent injunction. Defendants appeared through their counsel and filed written statement. Documents were marked and evidence was concluded. At that point in time, the plaintiff filed an application in I.A. No.6 under Order XXVI Rules 9 to 13 read with Section 151 of CPC requesting to appoint Taluka Surveyor to survey the suit property and fix the boundaries. The defendants filed objections. The Trial Court vide order dated 11.01.2023 rejected the application. This order that is called in question in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition. 5. Counsel for the respective parties urged several contentions. - 4 - NC: 2025:KHC-D:5228 WP No. 104300 of 2023 6. Counsel Sri.Manjunath G.Patil., submits that rejection of the application by the Trial Court is illegal, arbitrary and perverse. Next, he submits that the reasons are not properly assigned by the Trial Court. A further submission is made that the defendants also admitted in their cross-examination that they are ready to conduct the survey over of the suit schedule property and fix the boundaries. Hence, the Trial Court ought to have allowed the application. Lastly, he contends that, viewed from any angle, the order is untenable and liable to be set aside and the writ petition may be allowed. 7. Counsel Sri.Hanumanthreddy Sahukar., argued by saying that the suit is one for declaration and permanent injunction and the plaintiff must prove her case. He also submits that it is not the case of the encroachment. Hence, there is no need for the appointment of a Commissioner. - 5 - NC: 2025:KHC-D:5228 WP No. 104300 of 2023 Lastly, he submits that the Trial Court extenso referred to the material on record and rightly rejected the application. He further submits that the petition is devoid of merits and the same is liable to be dismissed. 8. Heard the arguments and perused the Writ papers with care. 9. The short controversy involved in the writ petition revolves around the rejection of the application seeking appointment of a Commissioner. The plaintiff contends that her father sold the property in favor of the defendant under a Registered sale deed dated:12.08.2005, she has filed the suit for the cancellation of the registered sale deed and for declaration that she is the absolute owner of suit property. In the plaint, the property has been shown in the schedule. It is not in dispute that when the suit was posted for arguments, the plaintiff moved an application seeking appointment of a Commissioner. The application is furnished along with the writ petition and the same is marked as Annexure-C. A perusal of the same would reflect that Smt.A.Mayamma - plaintiff has sworn to a declaration of fact in the form of an affidavit and - 6 - NC: 2025:KHC-D:5228 WP No. 104300 of 2023 states that her entire case stands on the boundaries and also the identification of the property. It is significant to note that the boundaries mentioned in the registered sale deed and the boundaries mentioned in the plaint schedule are one and the same. Moreover, the plaintiff has filed the suit to declare that she is the absolute owner of the suit schedule property and cancellation of the registered sale deed. It is the duty of the plaintiff to establish the identity of the property and she must succeed on the strength of her case. Furthermore, the facts and circumstances of the case, does not warrant the appointment of a Commissioner. The Trial Court extenso referred to the material on record and rightly rejected the application. The Writ Petition is devoid of merits, accordingly, it is rejected. Sd/- (JYOTI MULIMANI) JUDGE MRP,RH List No.: 2 Sl No.: 13