- 1 - HC-KAR NC: 2025:KHC:44144 WP No. 10610 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 10610 OF 2024 (GM-CPC) BETWEEN: SRI J. SUJAY KUMAR AGED ABOUT 35 YEARS S/O LATE JAYAGOPAL SHETTY NO. 445, 6TH MAIN, 1ST CROSS H BLOCK, RAMAKRISHNA NAGAR MYSORE - 570 023. PRESENTLY R/AT NO. 985, SRINIVASA NILAYA VIVEKANANDA NAGAR, BESIDE GANESHA TEMPLE, VIVEKANANDA CIRCLE, MYSURU - 570 023 REP BY SPA HOLDER SRI JAYDEEP S. …PETITIONER (BY SRI PREREET JAIN B, ADV.) AND: 1. SRI GOPAL S/O LATE PUTTANNA AGED ABOUT 60 YEARS WARD NO. 2, ANTHARASANAHALLI VILLAGE, KASABA HOBLI TUMAKURU DISTRICT - 572 101. 2. SRI DEVRAJ S/O LATE PUTTANNA AGED ABOUT 58 YEARS NO. 185, NEAR KARANJI TEMPLE CIKKAPETE, TUMAKURU DISTRICT - 572 101. 3. SRI KUMARASWAMY S/O LATE PUTTANNA Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:44144 WP No. 10610 of 2024 AGED ABOUT 56 YEARS NO. 185, NEAR KARANJI TEMPLE CHIKKAPETE, TUMAKURU DISTRICT - 572 101. …RESPONDENTS THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE ORDER DTD 13.09.2023 PASSED BY THE 2ND ADDL. SENIOR CIVIL JUDGE AND JMFC TUMAKURU IN OS NO. 72/2018 VIDE ANNX-A AND CONSEQUENTLY ALLOW THE INTERLOCUTORY APPLICATION FILED UNDER ORDER 26 RULE 9 OF CPC 1908. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. Plaintiff is before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set- aside the order dated 13.09.2023 passed on an application under Order XXVI Rule 9 of CPC filed by the plaintiff in OS No.72/2018 pending on the file of II Additional Senior Civil Judge and JMFC, Tumakuru. 2. Heard the learned counsel for the petitioner. Respondents, who are served in the matter have remained unrepresented before this Court. 3. Petitioner has filed OS No.72/2018 before the jurisdictional Civil Court at Tumakuru seeking the relief of - 3 - HC-KAR NC: 2025:KHC:44144 WP No. 10610 of 2024 declaration to declare the plaintiff as the absolute owner of the B suit schedule property which is encroached by the defendants and consequential relief of mandatory injunction is also prayed to direct the defendants to remove the illegal construction put- up by them in the B suit schedule property. In the said suit, contesting defendants have filed a detailed written statement opposing the suit claim. An application under Order XXVI Rule 9 of CPC was filed on behalf of the plaintiff in OS No.72/2018 with a prayer to appoint a Court Commissioner for the purpose of conducting the survey of the suit schedule A and B properties and to report about the encroachment by defendants in suit schedule B property. The said application was opposed by the defendants by filing of objections. The Trial Court vide the order impugned has rejected the said application and therefore, the petitioner is before this Court. 4. Perusal of the material on the record would go to show that it is the specific case of the plaintiff that he is the absolute owner of the suit schedule A property having purchased the same under registered Sale Deed for valuable consideration. In the plaint, it is averred that defendants who have no right or - 4 - HC-KAR NC: 2025:KHC:44144 WP No. 10610 of 2024 title over the suit schedule A property have encroached a portion of the suit schedule A property which is described in suit schedule B property and have illegally put-up a construction in suit schedule B property. After the Trial Court had closed recording of evidence of both the parties, an application under Order XXVI Rule 9 of CPC was filed on behalf of the plaintiff with a prayer to appoint a Court Commissioner for the purpose of surveying the suit schedule properties and to file a report with regard to the encroachment and illegal construction put-up in the B schedule property by the defendants. 5. It is trite that in a suit where there is allegation of encroachment or if there is any difficulty to identify the property, in normal circumstances, the Court should appoint a competent Court Commissioner, for the purpose of inspection, survey of the property and to file a report depending upon the nature of instructions received by the Court Commissioner from the parties to the suit. The Trial Court has failed to appreciate this aspect of the matter and has rejected the application vide the order impugned, which is bereft of reasons. Therefore, I am - 5 - HC-KAR NC: 2025:KHC:44144 WP No. 10610 of 2024 of the opinion that the order impugned passed by the Trial Court cannot be sustained. Accordingly, the following order:- 6. The writ petition is allowed. The order impugned dated 13.09.2023 passed by the Court of II Addl. Senior Civil Judge and JMFC, Tumakuru, on the application filed on behalf of plaintiff under Order XXVI Rule 9 of CPC in OS No.72/2018 is set-aside and consequently, the prayer made in the said application is granted. Sd/- (S VISHWAJITH SHETTY) JUDGE DN List No.: 1 Sl No.: 37