- 1 - HC-KAR NC: 2025:KHC-D:10971 WP No. 103463 of 2021 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 29TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 103463 OF 2021 (GM-CPC) BETWEEN: SHRI HANAMAPPA S/O. KARIYAPPA MANNUR, AGE: 59 YEARS, OCC: AGRICULTURE, R/O. KARADIGUDDA S.N., TQ. BADAMI, DIST. BAGALKOT-587201. …PETITIONER (BY SRI. U. J. HAVALDAR, ADV. FOR SRI. SHIVARAJ S. BALLOLI, ADVOCATE) AND: SMT. RENAVVA W/O. SOMAPPA KAMALADINNI, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O. KARADIGUDDA S. N., TQ. BADAMI, DIST. BAGALKOT-587201. …RESPONDENT (BY SRI. PRAKASH HOSAMANE, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 10.08.2021 PASSED IN O.S.NO.405/2012 BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, BADAMI ON I.A.NO.IX VIDE ANNEXURE-A. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY ORDER WAS MADE THEREIN AS UNDER: Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:10971 WP No. 103463 of 2021 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This petition is filed seeking following reliefs: 1) Issue a writ of certiorari quashing the Impugned order dated 10.08.2021 passed in O.S.No.405/2012 by the learned Principal Civil Judge and Jmfc, Badami on I.A.No.IX vide Annexure-A. 2) Pass any other order (s) as this Hon’ble Court may deem fit in the interests of justice and equity. 2. Sri.U.J. Havaldar, learned counsel appearing for the petitioner submits that the respondent has filed a suit for declaration and permanent injunction. In the said suit, the petitioner filed a detailed written statement denying the case of the plaintiff. It is submitted that the written statement contains hand sketch which depict actual possession, enjoyment and ownership of the property owned by the petitioner under the registered sale deed. 3. It is further submitted that the respondent/plaintiff is asserting that the open space shown in the sketch produced along with the written statement belongs to him and to ascertain - 3 - HC-KAR NC: 2025:KHC-D:10971 WP No. 103463 of 2021 the actual fact as per the sale deed, the petitioner filed an application for the appointment of Court Commissioner, which was rejected by the trial Court on the ground that the suit is for declaration of title and injunction and there is no necessity for such exercise. It is also submitted that the report of Court Commissioner would help the trial Court to decide the dispute between the parties. Hence, he seeks to allow the petition. 4. Per contra, Sri. Prakash Hosmane, learned counsel appearing for the respondent supports the impugned order of the trial Court and submits that the plaintiff’s case before the trial is that he is the owner of open site property bearing VPC No.43 measuring 40x24 and the same is claimed by the defendant and he is trying to disturb his possession. It is submitted that there is no difficulty to measure the property as claimed by the defendant through Court Commissioner. However, the measurement shall not be based on the sale deed of the defendant. It is submitted that the case of the plaintiff is specific that the defendant is attempting to illegally encroach upon the property of the plaintiff as shown in the sketch annexed to the plaint. Hence, he seeks to dismiss the petition. It is also - 4 - HC-KAR NC: 2025:KHC-D:10971 WP No. 103463 of 2021 submitted that in alternate, if the Court intend to appoint the Court Commissioner, the Court Commissioner shall be directed to report to the trial Court on the actual aspect with regard to the possession as per the sketch annexed to the plaint. Hence, he seeks to pass the appropriate order. 5. I have heard the arguments of learned counsel for the petitioner and learned counsel for the respondent and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 6. The respondent filed O.S.No.405/2012 before the Civil Judge and JMFC, Badami for relief of declaration that the plaintiff is the owner of property bearing VPC No.43 and further relief of injunction. The petitioner filed a written statement denying the averments of the plaint and the claim of the plaintiff. The plaint as well as written statement annexed with the copies of the hand sketch. The assertion of the parties to the suit is with regard to the respective ownership and possession as per the sketch annexed to the plaint and written statement. Ultimately, the trial Court is required to consider the case of the plaintiff for - 5 - HC-KAR NC: 2025:KHC-D:10971 WP No. 103463 of 2021 declaration and injunction based on the title, possession and enjoyment of the property. To ascertain the same, it would aid the trial Court if the Court Commissioner is appointed by issuing necessary memo of instructions to find out the actual factual matrix with regard to the possession of the parties as per the respective hand sketches produced along with plaint and written statement. Hence, I am of the considered view that the appointment of Court Commissioner would enable the trial Court to arrive at a just conclusion with regard to the rival claims made by each of the parties in the suit. 7. For the aforementioned reasons, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 10.08.2021 passed in O.S.No.405/2012 by the Principal Civil Judge and JMFC, Badami on I.A.No.IX is set aside. Consequently, I.A.No.IX filed under Order 26 Rule 9 of the Code of Civil Procedure is allowed. - 6 - HC-KAR NC: 2025:KHC-D:10971 WP No. 103463 of 2021 iii. The trial Court is directed to appoint the Government surveyor as a Court Commissioner to measure the total extent of the property claimed by the plaintiff as well as the defendant as per the sketches enclosed along with plaint and written statement. Thereafter, find out the actual possession of the parties and report to the trial Court. iv. It is needless to observe that the parties are at liberty to submit their memo of instructions. Sd/- (VIJAYKUMAR A.PATIL) JUDGE RKM /CT-AN List No.: 1 Sl No.: 8