- 1 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 3674 OF 2023 (GM-CPC) BETWEEN: SMT. R. REGINA W/O SRI R. RAVI KUMAR AGED ABOUT 49 YEARS R/O 10TH MAIN ROAD 2ND CROSS, 80 FEET ROAD HRBR LAYOUT, BANASWADI POST BANGALORE - 560 043 REPRESENTED BY HER GPA HOLDER SRI R RAVI KUMAR. …PETITIONER (BY SRI MAHABALESHWARA RAO K.N, ADV.) AND: 1. B.N. BABU REDDY S/O LATE N. NARAYAN REDDY AGED ABOUT 67 YEARS R/O OLD NO NEW NO.8 DODDABANASWADI BANGALORE - 43. 2. SUNKAMMA W/O LATE BODANNANNAVAR MUNISWAMY REDDY SINCE DECEASED BY LRS. SMT. RADHAMMA W/O LATE NARAYANA REDDY MAJOR R/AT NEAR B.E.T COLLEGE MUKKUNTAMMA NAGAR BANASAWADI, BANGALORE. 3. M. CHINNA REDDY S/O LATE BODANNANNAVAR Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 MUNISWAMY REDDY MAJOR. 4. APPAIANNAH S/O LATE BODANNANNAVAR MUNISWAMY REDDY MAJOR. 5. RATHNAMMA W/O JAYARAMA REDDY MAJOR. 6. C. VASANTH REDDY S/O M. CHINNA REDDY, MAJOR. RESPONDENTS 2 TO 6 ARE RESIDING AT NO.255 NEXT TO HINDUSTAN STEEL ROLLING MILLS, BANASWADI BANGALORE - 43. 7. N. SRINIVASA REDDY S/O NARAYANA REDDY, MAJOR. 8. SATISH REDDY (SATHYANARAYAN REDDY) S/O NARAYANA REDDY MAJOR. BOTH ARE RESIDING AT MUKKUNTAMMANAGAR BET COLLEGE, DODDABANASAWADI BANGALORE - 43. …RESPONDENTS (BY SRI T.N. VISHWANATH, ADV., FOR SMT. ARCHANA T.V., ADV., FOR R-1 ; V/O DTD: 24.02.2023, NOTICE TO TR-2 TO R-8 ARE D/W) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 31/01/2023 AS PER (ANNEXURE-L) ON I.A.NO.18 IN O.S.NO.3543/2005 ON THE FILE OF THE ADDL.CITY CIVIL JUDGE BANGALORE (CCH-43) AND CONSEQUENTLY DISMISS I.A.18 - 3 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 (ANNEXURE-G) IN O.S.NO.3543/2005 ON THE FILE OF THE ADDL. CITY CIVIL JUDGE BANGALORE. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. This writ petition under Article 227 of the Constitution of India is filed by the plaintiff with a prayer to set-aside the order dated 31.01.2023 passed on IA No.18 in OS No.3543/2005 by the Court of Additional City Civil Judge, Bengaluru (CCH 43). 2. Heard the learned counsel for the parties. 3. The suit in OS No.3543/2005 is filed by the petitioner herein before the jurisdictional Civil Court at Bengaluru seeking the relief of declaration of title in respect of the suit schedule B property and consequently, to declare that the Sale Deed and the Rectification Deed executed by defendant No.2 in favour of defendant No.1 are not binding on the plaintiff to the extent of the property mentioned in schedule B of the plaint. A consequent relief of permanent injunction is also prayed by the petitioner. The contesting defendants have entered appearance in the said suit and have filed a written statement. IA No.18 - 4 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 was filed under Order XXVI Rule 9 read with Section 151 of CPC on behalf of defendant No.1 and the said application was opposed by filing objections by the plaintiff. The Trial Court vide the order impugned has allowed IA No.18 and being aggrieved by the same, plaintiff is before this Court. 4. Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that in the earlier round of litigation, this Court had set-aside the order passed on IA No.18 and had remitted the matter to the Trial Court to consider IA No.18 afresh. The Trial Court has once again committed the very same mistake by allowing IA No.18. He submits that a prayer is made in the application to survey the entire extent of 3 acres 31 guntas in Sy. No.255 in which suit schedule B property is a part and parcel. The prayer made in the application is virtually to fix boundary to the entire extent of 3 acre 31 guntas in Sy. No.255 and also to demarcate the property of defendant No.1 allegedly purchased by her under the Sale Deed and Rectification Deed which have been questioned by the petitioner in OS No.3543/2005. He submits that a finding has been recorded in OS No.3345/2005 by a - 5 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 competent Civil Court that Smt.Sunkamma (Defendant No.2) has not retained any property on the northern boundary of the property sold by B. Pillareddy and Smt.M.K.Lakshmidevi in her favour. Therefore, there is no difficulty to identify the property in dispute. Attempt is made by defendant No.1 to collect evidence under the guise of commissioner's report. Accordingly, prays to allow the petition. 5. Per contra, learned counsel for respondent No.1/defendant No.1 has argued in support of the order impugned. He submits that this Court in WP No.16285/2022 had remitted IA No.18 for fresh consideration with an observation that a Court Commissioner can be appointed only in the event, first defendant is able to demonstrate that despite development, the Survey Officer would be in a position to demarcate the boundaries of the larger extent. He submits that undisputedly the suit schedule property is a portion of the land in Sy. No.255. The Trial Court while passing the order impugned has taken note of the observations made by this Court in WP No.16285/2022 and having satisfied itself that the surveyor would be in a position to demarcate the boundaries of - 6 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 the larger extent so as to enable the Trial Court to effectively adjudicate the dispute between the parties, has rightly allowed IA No.18. He submits that as against the judgment and decree passed in OS No.3345/2005, defendant No.1 has filed a Regular First Appeal before this Court which is pending. He submits that part of the property bearing Sy. No.255 has been acquired by the Bangalore Development Authority and utilised for road and therefore, finding recorded in OS No.3345/2005 has not reached finality. Even otherwise, the said finding was recorded without there being any issue in the said suit. Accordingly, he prays to dismiss the petition. 6. The suit in OS No.3543/2005 is filed by the petitioner herein to declare that she is the absolute owner of the schedule B property and consequently, to declare that the Sale Deed executed by defendant No.2/Smt.Sunkamma in favour of defendant No.1 on 05.04.2005 and the subsequent Rectification Deed dated 13.04.2005 executed by defendant No.2 in favour of defendant No.1 are not binding on the plaintiff to the extent of the property mentioned in B schedule property of the plaint. According to the plaintiff, she has purchased Item Nos.1 and 2 - 7 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 of suit schedule A property from Smt.M.K.Lakshmidevi under a registered Sale Deed dated 23.10.2003 and Item No.3 of suit schedule A property has been purchased by her under a registered Sale Deed dated 29.03.2001 executed by A. Chandrashekar and Smt.R.Nirmal. Properties mentioned in Item Nos.1, 2 and 3 of suit schedule A property together form suit schedule B property totally measuring 4290 square feet. 7. IA No.18 is filed on behalf of defendant No.1 with a prayer to conduct survey in respect of property bearing Sy. No.255 measuring 3 acres 31 guntas in which suit schedule B property is formed and to demarcate the extent of the properties purchased by M.K.Lakshmidevi and B. Pillareddy from defendant No.2/Smt. Sunkamma and to demarcate the existing property of defendant No.1 situated in between the properties of M.K.Lakshmidevi and B.Pillareddy. According to defendant No.1, defendant No.2 has retained certain properties after having sold a portion of the land bearing Sy. No.255 in favour of B.Pillareddy and Smt.M.K.Lakshmidevi. Petitioner claims right and title over suit schedule B property under Smt. M.K.Lakshmidevi. - 8 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 8. It is relevant to note here that OS No.3345/2005 was filed by one Smt.K.Jayalakshmma against B. N. Babureddy, who is defendant No.2 in the present suit seeking the relief of permanent injunction in respect of site bearing No.10 which was formed in Sy. No.255 and the jurisdictional Civil Court has decreed OS No.3345/2005 by judgment and decree dated 23.08.2012 and while answering Issue No.2 framed in OS No.3345/2005, a finding is recorded that Smt.Sunkamma has not retained any property on the northern boundary to the property sold to B. Pillareddy and Smt.M.K.Lakshmidevi. In the said suit, based on the oral and documentary evidence placed on record, the Trial Court has decreed the suit and therefore, it is apparent that there was no difficulty to identity of the suit schedule property in OS No.3345/2005. 9. In the present case, prayer made in IA No.18 is to conduct survey in respect of the entire extent of 3 acres 31 guntas in Sy. No.255 and to demarcate the property of defendant No.1 situated in between the property of M.K.Lakshmidevi and B. Pillareddy. The prayer made in the suit is to declare the plaintiff as the owner of suit schedule B - 9 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 property, which according to her has been purchased under separate Sale Deeds executed by M.K.Lakshmidevi and by A. Chandrasekhar and Smt. R. Nirmala. It is for the plaintiff to prove the identity of the property in respect of which she has sought relief in the suit. The prayer made in the application is to survey the entire extent in property bearing Sy. No.255 and to identify the property of the defendant No.1 which exists between the property of Smt.M.K.Lakshmidevi and Pillareddy. It is trite that Court Commissioner can be appointed by the Courts under Order XXVI Rule 9 of CPC in cases where identity of the property cannot be established on the basis of the oral and documentary evidence placed on record or where there is an allegation of encroachment. The same is not the fact situation in the present case. Parties have already placed on record their oral and documentary evidence before the Trial Court and burden to prove that plaintiff is the absolute owner of the suit schedule B property is on the plaintiff/petitioner and only in the event, she succeeds, the question of granting the consequential reliefs arise. - 10 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 10. It is trite that Court Commissioner is required to be appointed not to enable any party to collect evidence, but to enable the Courts to adjudicate the dispute effectively, in the event Court comes to a conclusion that based on the available oral and documentary evidence, the Court will not be in a position to properly adjudicate the dispute between the parties. Such a finding has not been recorded by the Trial Court in the present case and therefore, I am of the opinion that the Trial Court was not justified in allowing IA No.18. Accordingly, the following order:- 11. The writ petition is allowed. The order impugned dated 31.01.2023 passed on IA No.18 in OS No.3543/2005 by the Court of Additional City Civil Judge, Bengaluru (CCH 43) is set- aside and consequently, IA No.18 is dismissed. 12. Since the suit is of the year 2005, the Trial Court is requested to expedite the trial in the suit and dispose off the suit on merits, as expeditiously as possible but not later than a period of six months from the date of receipt of certified copy of this order, without being influenced by any observations made by this Court in this petition. - 11 - HC-KAR NC: 2025:KHC:47037 WP No. 3674 of 2023 13. In view of the disposal of the main petition, pending interlocutory application if any, does not survive for consideration. Accordingly, the same is disposed off. Sd/- (S VISHWAJITH SHETTY) JUDGE DN List No.: 1 Sl No.: 31