- 1 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 14950 OF 2025 (GM-CPC) BETWEEN: SRI OJAIAH S/O LATE MARILINGAIAH AGED ABOUT 76 YEARS R/AT KOTTAGALU VILLAGE HAROHALLI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT - 562 117 THROUGH POWER OF ATTORNEY HOLDER SRI SURESH K. T., S/O THIMMEGOWDA AGED ABOUT 45 YEARS R/AT KOTTAGALU VILLAGE HAROHALLI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT - 562 117. …PETITIONER (BY SRI PRAKASH M. H., ADVOCATE) AND: 1. SMT. SANNAMMA W/O LATE OJEGOWDA AGED ABOUT 78 YEARS Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 2. SMT. ANUSUYA W/O LATE ODESH AGED ABOUT 50 YEARS 3. SRI MANU S/O LATE ODESH AGED ABOUT 32 YEARS 4. RAMYA D/O LATE ODESH AGED ABOUT 29 YEARS 5. KEMPAIAH S/O LATE OJEGOWDA AGED ABOUT 54 YEARS 6. NAGARAJU S/O LATE OJEGOWDA AGED ABOUT 54 YEARS RESPONDENT NOS.1 TO 6 ARE R/AT KOTTAGALU VILLAGE HAROHALLI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT - 562 117. 7. SRI EREGOWDA S/O NINGEGOWDA AND LATE KEMPAMMA AGED ABOUT 45 YEARS 8. SANNAPPA S/O NINGEGOWDA AND LATE KEMPAMMA AGED ABOUT 42 YEARS - 3 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 RESPONDENT NOS. 7 AND 8 ARE R/AT ANGARAHALLI VILLAGE HAROHALLI HOBLI, KANAKAPURA TALUK RAMANAGARA DISTRICT - 562 117. 9. SMT. MANCHAMMA W/O MALAGAPPA D/O LATE MARILINGEGOWDA AGED ABOUT 72 YEARS R/AT CHIKKAMUDUVADI VILLAGE KASABA HOBLI, KANAKAPURA TALUK RAMANAGARA DISTRICT - 562 117. 10. SMT. SHIVALINGAMMA D/O LATE MARILINGEGOWDA AGED ABOUT 70 YEARS R/AT KOTTAGALU VILLAGE HAROHALLI HOBLI, KANAKAPURA TALUK RAMANAGARA DISTRICT - 562 117. …RESPONDENTS (BY SRI G.B.NANDISH GOWDA, ADVOCATE) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD. 17.04.2025 PASSED BY SENIOR CIVIL JUDGE AND JMFC KANAKAPURA IN O.S.NO. 603/2014 VIDE ANNX-M AND CONSEQUENTLY DISMISS THE APPLICATION FILED BY THE R-1 TO 6 VIDE ANNX-K. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER Petitioner - defendant No.3 in O.S.No.603/2014 is before this Court calling in question an order dated 17.04.2025 passed by the Senior Civil Judge and JMFC, Kanakapura, allowing an application filed by the plaintiff – respondents, under Order XXVI Rule (10)A r/w. Section 151 of the CPC, seeking appointment of a Court Commissioner for local inspection and a report to be submitted thereon. 2. Heard Sri Prakash M.H., learned counsel for petitioner and Sri G.B.Nandish Gowda, learned counsel for respondent Nos.1 to 6. 3. Facts in brief, germane, are as follows: The petitioner is defendant No.3, the respondents, the plaintiffs. The plaintiffs institute a suit in O.S.No.603/2014 seeking relief of declaration and possession. The issue in the lis is not with regard to the merit of the matter. The plaintiffs instituted the suit in the year 2014, files an application – I.A.No.II under Order XXVI Rule (10)A r/w. Section 151 of the CPC seeking appointment of a Court Commissioner after about - 5 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 2 years of institution of the said suit. The application comes to be allowed after 10 years and the allowing of the application is what has driven defendant No.3 i.e., the contesting defendant before this Court in the subject petition. 4. Sri M.H.Prakash, learned counsel appearing for the petitioner would contend that the respondents – plaintiffs are wanting to fetch evidence from the hands of the Court Commissioner, which themselves do not have. He would take this Court through the documents appended to the petition to submit that what is sought is the boundaries and certain details regarding a sale deed of the year 1968. According to the learned counsel for petitioner, if 7 ¼ guntas had been left out in the said sale deed of the year 1968, there is neither rectification sought, nor the sale deed is questioned, or the sale deed is sought for the left out portion or a suit is instituted contending that the sale deed would not be binding upon the plaintiffs. That being the case, now an application is filed in the year 2016 of a document dated 09.02.1968, seeking that the boundaries thereon to be determined. He would submit that - 6 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 this cannot be anything but fetching evidence in favour of the plaintiffs. He would seek quashment of the impugned order. 5. Sri G.B.Nandish Gowda, learned counsel for respondent Nos.1 to 6 appearing to the respondents – plaintiffs would submit that the inspection became imperative as observed by the concerned Court with regard to 7 ¼ guntas of land, in the sale deed of the year 1968 and the boundaries drawn thereon, and therefore, no prejudice would be caused to the petitioner if the report of the Court Commissioner is sought. In fact, it would steer clear the controversy is what the learned counsel would submit at this juncture. 6. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and have perused the material on record. 7. The afore-narrated facts are a matter of record. The suit is one for declaration and permanent injunction. The prayer in the suit is as follows: “…. …. …. 11. The suit is valued as per the valuation slip separately annexed to the plaint. - 7 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 Wherefore, the plaintiffs pray, that this Hon'ble Court be pleased to pass judgement and decree against the defendants as follows: (a) To declare plaintiffs are the absolute owners of the suit schedule property; (b) For permanent injunction restraining the defendants, their agents, servants, supporters, followers or anybody claiming under them from in anyway interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property; (c) Costs of this suit, and such other relief as this Hon'ble Court may deem fit to grant, in the circumstances of the case, in the ends of justice.” The prayer in the suit is not with regard to the registered sale deed that was entered into on 09.02.1968, which is shown as MNOP in a rough sketch produced and there is discrepancy with regard to the boundary depicted in the sale deed dated 09.02.1968 concerning 7 ¼ guntas of land. The suit is instituted in the year 2014 with the aforesaid prayer and on the aforesaid premise. The suit progressed to a large extent and the application – I.A.No.2 is filed under Order XXVI Rule (10)A of the CPC seeking report of a Court Commissioner pursuant to a local inspection, in the year 2016. Ten years passes by and at the fag end of the trial of the suit, the concerned Court by a - 8 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 reasoned order allows the application. The reasons so rendered by the concerned Court is as follows: “6. Under the circumstances, following point arises for consideration; "Whether the plaintiffs have made out grounds to appoint the Court Commissioner as prayed for?" 7. Under the circumstances, the point framed for consideration is answered in the ‘Affirmative' for the following; REASONS 8. Plaintiffs have filed this suit for the relief of declaration that they are the absolute owners of the suit schedule property and for permanent injunction restraining the defendants from interfering with their possession and enjoyment over the said property. Suit schedule property is measuring 27 ¾ guntas out of 2 acres 29 guntas in Sy. No. 21/6 of Kottagalu village, Harohalli Hobli, Kanakaura Taluk. 9. It is the case of the plaintiffs that Sy. No. 21/6 measuring 2 acres 29 guntas originally belonged to the propositus Chikka Ojigowda and his children Odo Lingegowda, Kempegowda and Marilingegowda. After the death of Chikka Ojigowda, his children have orally divided this property long back, in which Odo Lingegowda got 36 ½ guntas, Kempegowda got 36 ¼ guntas in two bits, first bit measuring 7 ¼ guntas and another bit measuring 27 ¼ guntas. Another son Marilingegowda got 36 ½ guntas in two bits, first bit measuring 7 ¼ guntas and second bit measuring 27 ¾ guntas. They were enjoying their respective shares. 10. Thereafter, Kempegowda S/o Chikka Ojigowda, along with his son Late Ojigowda who is the husband of the plaintiff No.1 and father of the plaintiffs No.5 & 6 sold 7 ¼ guntas in favour of Marilingegowda who is the predecessor of the defendants as per the sale deed dated - 9 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 09/02/1968 and retained 27 ¾ guntas i.e., suit schedule property. However, in the sale deed extent was wrongly mentioned as 36 guntas instead of 7 ¼ guntas but the boundaries mentioned with respect to 7 ¼ guntas. The property sold and the property retained were having different boundaries. Now, plaintiffs are in possession and enjoyment of the suit schedule property. Based on the sale deed dated 09/02/1968, name of the defendant No.3 was entered with respect to the suit schedule property. Based on the said entry, defendants are trying to dispossess the plaintiffs from the suit schedule property, hence they have filed this suit. 11. Defendants have contended that their predecessor had purchased 36 guntas as per the sale deed dated 09/02/1968 and accordingly he was in possession and enjoyment of the property and now they are in possession and enjoyment of the same. Now, name of the defendant No.3 is entered in the revenue records. Rough sketch produced by the plaintiffs enclosed to the plaint is a false document. 12. Now, both parties have adduced their evidence and case is posted for arguments. At this stage plaintiffs have requested to consider the IA No.II, which was filed before commencement of the evidence. It is the specific case of the plaintiffs that, suit schedule property and another bit 7 ¼ guntas were fallen to the share of their predecessor Kempegowda and they are having different boundaries. Though, sale deed was executed in favour of the predecessor of the defendants on 09/02/1968 with respect to 7 ¼ guntas by inadvertence measurement was mentioned in the sale deed as 36 guntas. 13. It is stated that first bit 7 ¼ guntas and second bit 27 ¾ guntas are having different boundaries and hence to ascertain the said fact, it is necessary to appoint the Court Commissioner. In the event of dispute regarding extent of the property and boundaries, boundaries shall prevail. In the sale deed dated 09/02/1968 measurement of the property is mentioned as 36 guntas only. However, it is the specific case of the plaintiffs that - 10 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 the said sale deed was executed only with respect to 7 ¼ guntas and the boundaries mentioned also refers the 7 ¼ guntas and not 36 guntas. 14. In order to ascertain this assertion of the plaintiffs, it is necessary to appoint the Court Commissioner as prayed for. As observed above, defendants have not filed objection to the application and hence this Court is of the opinion that for proper adjudication and to adjudicate the questions involved in the suit, it is necessary to appoint the Court Commissioner. Accordingly, the point framed for consideration is answered in the Affirmative and I proceed to pass the following; ORDER I.A No.II filed by the plaintiffs under Order XXVI Rule 10(A) R/w Section 151 of CPC is hereby allowed. Taluka Surveyor, Harohalli is appointed as Court Commissioner. Court Commissioner shall visit the property mentioned in the sale deed dated 09/02/1968 and to submit the report as to the measurement of the property within the boundaries mentioned in the said sale deed. Court Commissioner fee is fixed as Rs.2,000/-.” (Emphasis added) As submitted by the learned counsel appearing for the petitioner, the sale deed dated 09.02.1968 has spent itself. If the plaintiffs are wanting to seek the relief that they have sought on the strength of the said sale deed and the discrepancy or any contention with regard to the sale deed has been left over for close to 50 years, now the plaintiffs cannot - 11 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 by way of a Court Commissioner, dig the evidence or fetch evidence in their favour, which has become bleak during the trial. 8. In that light, the order of the concerned Court runs foul of the judgment rendered by the co-ordinate bench of this Court in the case of SHADAKSHARAPPA v. KUMARI VIJAYALAXMI1, “…. …. …. 12. Under the provisions applicable for local inspection what is impermissible is the delegation of adjudicating power. To cite an example, if both parties claim to be in possession of the disputed property, the local inspection by the Commissioner cannot be ordered to ascertain the possession. The question of possession is to be decided by the Court. However, if one party alleges encroachment by another and another party denies such allegation, the Commissioner can be appointed to ascertain whether there is encroachment or not. In such a situation the Commissioner is appointed to find out the nature of possession. The report based on local inspection will be a handy tool to decide the case relating to encroachment. In the case on hand, the petitioner to prove his assertion of encroachment, instead of leading oral evidence of witnesses has applied for local inspection, and the same is not only permissible but also desirable.” (Emphasis supplied) 1 2023 SCC OnLine Kar 53 - 12 - HC-KAR NC: 2025:KHC:35724 WP No. 14950 of 2025 The co-ordinate bench in the afore-quoted judgment has considered the entire spectrum of that circumstance that may arise with regard to an application filed under Order XXVI Rule (10)A of the CPC, and it being allowed. One such circumstance is with regard to possession. The possession has to be proved by the evidence before the concerned Court and not by fetching evidence through the appointment of a Court Commissioner. 9. In the light of the law as laid down by the coordinate bench as afore-quoted, the order of the concerned Court would fly foul and therefore, the impugned order becomes unsustainable. 10. For the aforesaid reasons, the following: ORDER a. The writ petition is allowed. b. The impugned order dated 17.04.2025, passed by the Senior Civil Judge and JMFC, Kanakapura, stands quashed. Sd/- (M.NAGAPRASANNA) JUDGE NVJ/List No.: 1 Sl No.: 15/CT:SS