- 1 - HC-KAR NC: 2025:KHC:39552 WP No. 53302 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 53302 OF 2017 (GM-CPC) BETWEEN: HANUMANTHEGOWDA S/O LATE NARASIMHAIAH AGED ABOUT 47 YERS RESIDING AT GANJIGERE VILLAGE BAVIKERE POST TARIKERE TALUK - 572 130. …PETITIONER (BY SRI RAVI H.K, ADV.) AND: SMT. PADMA W/O LATE SRINIVAS AGED ABOUT 54 YEARS PERMANENT R/O VISHWESHWRAN STREET ARANI TOWN AT TALUK, THIRUVANNAMALAI DISTRICT TAMILNADU STATE - 632 301. …RESPONDENT (V/O/D.23.08.2025, NOTICE TO RESPONDENT IS H/S) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ALLOW THIS WRIT PETITION.QUASH THE ORDER DTD.17.10.2017 AT ANNEX-E PASSED BY THE COURT OF THE ADDL. CIVIL JUDGE AND JMFC, TARIKERE ALLOWING THE APPLICATION (I.A.4) UNDER 26 RULE 9, CPC R/W SECTION 151 OF CPC FILED BY THE RESPONDENT IN O.S.NO.92/2013 BY ISSUING A WRIT OF CERTIORARI. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:39552 WP No. 53302 of 2017 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 defendant with a prayer to set aside the order dated 17.10.2017 passed on I.A.No.IV in O.S.No.92 of 2013 by the Court of Additional Civil Judge and JMFC, Tarikere. 2. Heard the learned counsel for the petitioners. The respondent, who served in the matter has remained unrepresented. 3. Facts leading to filing of this petition narrated briefly are, respondent had filed O.S.No.92 of 2013 before the Court of Additional Civil Judge & JMFC, Tarikere with a prayer to declare her as the absolute owner in respect of the suit schedule property. In the said suit, an application under Order XXVI Rule 9 of CPC (I.A.No.IV) was filed by the respondent with a prayer to appoint the Court Commissioner to measure the suit schedule property and to give report regarding encroachment if any made by the defendant. The said application was opposed by the defendant by filing objection. - 3 - HC-KAR NC: 2025:KHC:39552 WP No. 53302 of 2017 The Trial Court vide the order impugned allowed I.A.No.IV in O.S. No.92 of 2013 and appointed the Surveyor, Tarikere as Court Commissioner and being aggrieved by the same, the defendant is before this Court. 4. According to the respondent - plaintiff, her husband, A Srinivas, was in unauthorized occupation and cultivation of 2 acres and 20 guntas of land in Survey No.49/p of Bavikere Village, Lakkavalli, Tarikere Taluk and he had filed application seeking regularization of his unauthorized occupation and cultivation of aforesaid land. The jurisdictional Tahasildar vide order dated 30.08.1980 had granted 2 acres of land in the aforesaid survey number in favour of her husband which was sold by him to the father of the petitioner herein under a registered sale deed and had retained remaining 20 guntas of land in the aforesaid survey number for himself. After the death of A Srinivas, the respondent herein had approached the jurisdictional civil Court contending that petitioner who claims right and title under his father, who had purchased the granted land from her husband, was in possession of excess 20 guntas of land and it is under these circumstances, she had - 4 - HC-KAR NC: 2025:KHC:39552 WP No. 53302 of 2017 filed O.S.No.92 of 2013 to declare that she is the absolute owner of the said 20 guntas of land in Survey No.49/p of Bavikere Village, Lakkavalli, Tarikere Taluk and also had sought the relief of possession of the said property. 5. 5. It is not in dispute that the husband of the respondent, namely A Srinivas was granted only 2 acres of land in Survey No.49/p and the said entire extent of 2 acres has been undisputedly sold to the father of the petitioner herein by the husband of the respondent under a registered sale deed for valid sale consideration. 6. Perusal of the averments in the plaint in OS No.92 of 2013 would go to show that, respondent has not pleaded her title over the suit schedule property measuring 20 guntas and according to her, her husband was in unauthorized possession of 2 acres and 20 guntas of land measuring survey No.49/p, Bavikere village, Lakkavalli, Tarikere Taluk. Undisputedly only 2 acres of land was granted in favour of her husband and the same was sold by him in favour of the father of the petitioner herein under a registered sale deed. - 5 - HC-KAR NC: 2025:KHC:39552 WP No. 53302 of 2017 7. Application I.A.No.IV is now filed under Order No.XXVI Rule 9 of CPC after the parties have led evidence before the Trial Court, to appoint a Court Commissioner to measure the suit schedule property and to give a report regarding the encroachment, if any made by the defendant. The respondent has not stated anything in her plaint as to how she claims right and title over the suit schedule property measuring 20 guntas in Survey No. 49/p of Bavikere village, Lakkavalli, Tarikere Taluk and it is not her case that suit schedule property was granted to her husband or to her at any point of time. 8. It is trite that parties cannot be permitted to collect evidence in the nature of commissioner report in the absence of parties producing prima-facie material before the Court, in support of the prayer made by them in the suit. The trial Court has failed to appreciate this aspect of the matter and erred in allowing the application and therefore, I am of the opinion that the order impugned cannot be sustained. 9. Accordingly, the following:- - 6 - HC-KAR NC: 2025:KHC:39552 WP No. 53302 of 2017 ORDER (i) Writ petition is allowed. (ii) The impugned order dated 17.10.2017 passed on I.A.No.IV in O.S.No.92 of 2013 by the Court of Additional Civil Judge and JMFC, Tarikere is hereby quashed. Sd/- (S VISHWAJITH SHETTY) JUDGE NMS List No.: 1 Sl No.: 40