- 1 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 18TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 101165 OF 2022 (GM-CPC) BETWEEN: SRI. BHIMAPPA S/O. NINGAPPA BARKER, SINCE DECEASED BY HIS LRS. 1. SMT. NAGAVVA W/O. BHIMAPPA BARAKERA, AGE: 82 YEARS, OCC: HOUSE WIFE, R/O. NELAGUDDA VILLAGE, TQ. KUNDAGOL, DIST. DHARWAD-581113. 2. SRI. DEVAPPA S/O. BHIMAPPA BARAKERA, AGE: 64 YEARS, OCC: AGRICULTURE, R/O. NELAGUDDA VILLAGE, TQ. KUNDAGOL, DIST. DHARWAD-581113. 3. BASAPPA S/O. BHIMAPPA BARAKERA, AGE: 64 YEARS, OCC: AGRICULTURE, R/O. NELAGUDDA VILLAGE, TQ. KUNDAGOL, DIST. DHARWAD-581113. 4. SMT. CHANNAVVA W/O. GANGAPPA BARAKERA, AGE: 60 YEARS, OCC: HOUSE WIFE, R/O. NELAGUDDA VILLAGE, TQ. KUNDAGOL, DIST. DHARWAD-581113. 5. SRI. MALLIKARJUNA S/O. GANGAPPA BARAKERA, AGE: 43 YEARS, OCC: AGRICULTURE, R/O. #42 S.P. PATIL, DODDA ONI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 NAGASHETTIKOPPA, TQ. HUBLI, DIST. DHARWAD-580023. 6. SRI. NINGAPPA S/O. GANGAPPA BARAKERA, AGE: 38 YEARS, OCC: AGRICULTURE, R/O. #42 S.P. PATIL, DODDA ONI NAGASHETTIKOPPA, TQ. HUBLI, DIST. DHARWAD-580023. 7. SRI. NAGAPPA S/O. GANGAPPA BARAKERA, AGE: 36 YEARS, OCC: AGRICULTURE, R/O. #42 S.P. PATIL, DODDA ONI NAGASHETTIKOPPA, TQ. HUBLI, DIST. DHARWAD-580023. 8. SMT. REKHA W/O. MANJUNATHA MALAGIMANI, AGE: 41 YEARS, OCC: HOUSE WIFE, R/O. #42 S.P. PATIL, DODDA ONI NAGASHETTIKOPPA, TQ. HUBLI, DIST. DHARWAD-580023. REPRESENTED BY THEIR PA HOLDER, SRI. DEVAPPA S/O. BHIMAPPA BARAKERA, AGE: 64 YEARS, OCC: AGRICULTURE, R/O. NELAGUDDA VILLAGE, TQ. KUNDAGOL, DIST. DHARWAD-581113. …PETITIONERS (BY SRI. MAHESH WODEYAR, ADVOCATE) AND: 1. SRI. MAHADEVAPPA S/O. RAMAPPA ARALIKATTI, AGE ABOUT 55 YEARS, OCC: AGRICULTURE, R/O. NELAGUDDA VILLAGE, TQ. KUNDAGOL, DIST. DHARWAD-581113. - 3 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 2. SHANKRAPPA S/O. RAMAPPA ARALIKATTI, AGE ABOUT 52 YEARS, OCC: AGRICULTURE, R/O. NELAGUDDA VILLAGE, TQ. KUNDAGOL, DIST. DHARWAD-581113. 3. SHIVAPPA S/O. RAMAPPA ARALIKATTI, AGE ABOUT 85 YEARS, OCC: AGRICULTURE, R/O. NELAGUDDA VILLAGE, TQ. KUNDAGOL, DIST. DHARWAD-581113. 4. SRI. TIPPANNA SHANKRAPPA S/O. RAMAPPA ARALIKATTI, AGE ABOUT 87 YEARS, OCC: AGRICULTURE, R/O. NELAGUDDA VILLAGE, TQ. KUNDAGOL, DIST. DHARWAD-581113. …RESPONDENTS (BY SRI. PRASHANT C. KALE AND SRI. C. M. KALE, ADV. FOR R1 TO R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASH THE ANNEXURE-A IMPUGNED OF ORDER DATED 19.11.2021 PASSED BY THE LD. CIVIL JUDGE AND J.M.F.C, KUNDGOL ON IA.NO.XIV IN OS.NO.52/2014 AND CONSEQUENTLY ALLOW THE IA NO.XIV FILED BY THE PETITIONERS UNDER ORDER 26 RULE 9 R/W. SECTION 151 CPC ANNEXURE-D AND ETC. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This petition is filed seeking following reliefs: “a) Issue a writ or order or direction in the nature of certiorari quash the Annexure-A impugned of order dated 19.11.2021 passed by the Ld. Civil Judge and J.M.F.C. Kundgol on IA.No.XIV in OS.No.52/2014 and consequently allow the IA.No.XIV filed by the petitioners under order 26 rule 9 r/w Section 151 C.P.C. Annexure-D. b) Issue any other writ or order or direction which this Hon’ble Court deems fit under the circumstances of the case in the interest of justice and equity.” 2. Sri.Mahesh Wodeyar, learned counsel appearing for the petitioners submits that the petitioners filed a suit for declaration that the plaintiffs have acquired right of easement over the suit schedule property by specific grant and also sought relief of mandatory injunction against the defendants to remove illegal construction effected by them at their own costs and keep open the suit property up to sky and for relief of permanent injunction against the defendants. It is submitted that in the said - 5 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 suit, after conclusion of trial, the petitioners filed an application for appointment of a Court Commissioner to inspect and report to the Court, whether the defendants have left open space measuring 5 feet i.e., the suit schedule property towards the eastern side of the property of the plaintiffs or not. However, the trial Court dismissed the said application solely on the ground that the filing of the application amounts to collection of evidence, which is impermissible. It is submitted that the petitioners have led the evidence and placed sufficient material with regard to the illegal construction put up by the defendants over the suit schedule property. It is further submitted that the suit schedule property is open space used by the petitioners as well as the defendants from ages and the same is required to be kept open for the use of both the parties. It is also submitted that the defendants have denied the assertion of the plaintiffs in the written statement as well as the objection filed to the application. Hence, it is very much necessary to ascertain as to whether the defendants have illegally put up the construction over the suit schedule property or not, by appointing the Court Commissioner and his report would aid the trial Court to decide - 6 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 the dispute between the parties in a proper way. Hence, he seeks to allow the petition. 3. No representation for the respondents despite granting sufficient time. 4. I have heard the arguments of the learned counsel for the petitioner and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced. 5. The Material on record indicates that the petitioners filed a suit O.S.No.52/2014 for relief of declaration that the plaintiffs have acquired the right of easement over the suit schedule property by specific grant, relief of mandatory injunction to remove the illegal construction put up by the defendants in the suit schedule property and to keep open the suit property up to sky and further relief of permanent injunction restraining the defendants from claiming or putting up any construction over the suit schedule property. The defendants filed a detailed written statement denying the assertion made in - 7 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 the plaint. The records indicate that after conclusion of the trial, the petitioners filed an application under Order XXVI Rule 9, r/w Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking for appointment of an Advocate as a Court Commissioner to inspect and report as to whether the defendants have left open the space measuring 5 feet i.e., the suit schedule property towards the eastern side of the property of the plaintiffs or not. The trial Court dismissed the said application on the ground that the filing of application is amounting to collection of evidence. In my consideration the trial Court has committed a grave error. This Court in the case of Sri Shadaksharappa v. Kumari Vijayalaxmi 1 speaking on the appointment of Court Commissioner amounting to collection of evidence held as under: 11. The appointment of a Commissioner for local inspection, or scientific/forensic investigation/expert's opinion is indeed to secure the evidence and the same is not only permissible but also desirable in certain cases. The report, given the intrinsic complexities of matter in a case, may go a long way in arriving at a just decision or assisting the Court to appreciate the other evidence on record or fact situation in a proper perspective. If the report of the Commissioner is nothing to do with the subject matter in dispute, then there cannot be 1 2023 SCC OnLine Kar 53 - 8 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 an order appointing the Commissioner. Order appointing a Commissioner can be made only if the Commissioner's report becomes a relevant piece of evidence. That being the position, the contention that the appointment of Court Commissioner amounts to collection of evidence has no merit. Keeping in mind the aforesaid enunciation of law by this Court, it is clear that appointment of a Court Commissioner is to collect evidence that can assist the Court in arriving at a just and fair decision and is not only permissible but desirable in certain cases. 6. Furthermore, it is the case of the petitioners that open space measuring 5 feet towards the eastern side of their property is used by the plaintiffs from ages and there is a door and window facing towards the suit schedule property. It is also specifically pleaded that in the said suit schedule property the defendants are illegally putting up the construction, which has been denied by the defendants in the objection as well as the written statement. The dispute is with regard to the assertion of the plaintiffs that the defendants are putting up the construction illegally in the said property is required to be ascertained by an independent person, which would definitely aid the trial Court in - 9 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 deciding the dispute between the parties, as the relief sought in the plaint is of easementary right and a mandatory injunction to remove the illegal structure put up by the defendants. When things stood thus, I am of the considered view that the trial Court has committed a grave error in dismissing the application. It is always open for the defendants to object the Commissioner’s report, if the defendants have any objections to the finding recorded by the Court Commissioner. Considering the same, I am of the considered view that it is the fit case to appoint a Court Commissioner to find out the assertion made by the petitioners in the application for appointment of a Court Commissioner. Hence, I proceed to pass the following: ORDER i) The writ petition is allowed. ii) The impugned order dated 19.11.2021 passed on IA.No.14 in O.S.No.52/2014 by the Civil Judge and JMFC, Kundgol is hereby set aside. iii) Consequently, IA.No.14 filed by the plaintiffs under Order XXVI Rule 9 r/w Section 151 of CPC is allowed. - 10 - HC-KAR NC: 2025:KHC-D:12582 WP No. 101165 of 2022 iv) The trial Court is directed to appoint the Court Commissioner as sought in the application. Sd/- (VIJAYKUMAR A.PATIL) JUDGE ABK /CT-AN List No.: 1 Sl No.: 2