- 1 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.51868/2019 (GM-CPC) BETWEEN: SRI. C. JAYACHANDRA SINCE DEAD BY HIS LR'S. 1. SMT. J. JANSY W/O LATE PAUL RAJ AGED ABOUT 52 YEARS. 2. SMT. J. STELLA W/O LUMAN GEORGE AGED ABOUT 48 YEARS. 3. SRI. J. RICHARD S/O LATE JAYACHANDRA AGED ABOUT 50 YEARS. 4. SRI. C.J. SEBASTIAN W/O LATE JAYACHANDRA AGED ABOUT 46 YEARS. ALL ARE R/AT NO.76 30TH CROSS, 4TH T BLOCK JAYANAGAR, BENGALURU-5600041. …PETITIONERS (BY SRI. MANOJ K, ADV., FOR SRI. JAYARAJ D.S. ADV.,) AND: SRI. C. NAGARAJ S/O LATE CHENGAIAH AGED ABOUT 66 YEARS NO.76/3, 30TH CROSS 4TH T BLOCK, JAYANAGAR BENGALURU-560041. …RESPONDENT Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 (BY SRI. C.R. GOPALASWAMY, SR. COUNSEL FOR SRI. BHARGAV G, ADV.,) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 30.11.2019 PASSED BY THE COURT BELOW IN REJECTING THE APPLICATION FILED BY THE LRs OF THE PLAINTIFF/PETITIONERS HEREIN UNDER ORDER XXVI RULE 9 R/W SECTION 151 OF THE CIVIL PROCEDURE CODE, 1908 IN O.S.NO.7523/2013 C/W O.S.NO.8657/2013 PENDING BEFORE THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-38) AT BENGALURU VIDE ANNEXURE-A & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking following reliefs: "a) Issue a writ in the nature of certiorari quashing the impugned order dated 30.11.2019 passed by the court below in rejecting the application filed by the LR's of the plaintiff/petitioners herein under Order XXVI Rule 9 read with Section 151 of the Civil Procedure Code, 1908 in O.S.No.7523/2013 c/w O.S.No.8657/2013 pending before the Additional City Civil & Sessions Judge (CCH-38), at Bengaluru vide Annexure-A." 2. Sri.Manoj K., learned counsel appearing on behalf of Sri.Jayaraj D.S., learned counsel for the petitioners submits that the petitioners filed a suit against the respondent for declaration and mandatory injunction - 3 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 on the ground that the property has been divided pursuant to the partition deed dated 28.10.1977. However, the defendant in violation of the partition deed encroached upon the share allotted to the petitioners and put up the construction. It is submitted that the parties have adduced the evidence. The factum of encroachment was brought on record which has been denied by the other side and after conclusion of the trial the petitioners filed an application for appointment of Court Commissioner to inspect the spot so as to take out measurement to ascertain the extent of construction made by the defendant on their property allotted in favour of father of the petitioners under the registered partition deed dated 28.10.1977. The trial Court without considering the prayer of the petitioners rejected the application under the impugned order dated 30.11.2019 and held that the application is filed at the belated stage and already sufficient evidence is available on the record. He also submits that the Court Commissioner report would assist the Court in deciding the - 4 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 real controversy between the parties. Hence, he seeks to allow the petition. 3. Per contra, Sri.C.R.Gopalaswamy, learned senior counsel appearing for the respondent vehemently opposed the petition and submits that the filing of an application seeking appointment of Court Commissioner is an abuse of the process of law and to overcome the evidence on record. It is submitted that the application is filed at the belated stage. It is further submitted that the petitioners/plaintiffs has to plead and prove the alleged encroachment, which he has failed in his attempt. Hence, with an intention to collect the evidence, he sought appointment of Court Commissioner which is rightly rejected by the trial Court and does not call for any interference. The learned senior counsel for the respondent in alternate, submits that if this Court inclined to consider the application for appointment of the Court Commissioner, then an order may be passed to measure the entire extent of the property as referred in the - 5 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 partition deed dated 28.10.1977 and then find out whether there is an encroachment or not as alleged in the plaint. Hence, he seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel for the petitioners, the 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. 5. The pleading and material on record indicate that the petitioners filed OS.No.7523/2013 against the respondent for a relief of declaration that schedule 'A' property is a common passage for ingress and egress for the plaintiffs and the defendant herein. The petitioners also sought for further relief of mandatory injunction against the defendant to remove unauthorised and illegal construction put up in the Schedule 'B' property and for permanent injunction restraining the defendant from obstructing for usage of schedule 'C' property. The plaint - 6 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 averments indicate that the property is partitioned under the partition deed dated 28.10.1977 and as per the partition, the petitioners are in their allotted share. However, the respondent/defendant encroached the passage shown in the partition, constructed illegally in the said passage and obstructed the ingress and egress of the plaintiffs. The respondent/defendant categorically denied the assertion made in the plaint and averred that there was a passage shown in the partition deed, however, that passage has been sold by the plaintiffs to the third party and they intend to claim that the property allotted to the defendant there is a passage, which is impermissible. The records indicate that the parties have adduced the evidence to prove their respective stand before the trial Court. 6. After completion of the trial, the plaintiffs filed an application under Order XXVI Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') seeking for appointment of the Court Commissioner to measure - 7 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 the disputed extent of land. The trial Court rejected the said application solely on the ground that the application is filed belatedly and there is sufficient evidence available on record. In my considered view, the trial Court has committed a grave error in coming to such conclusion. This Court in the case of Sri.Shadaksharappa vs. Kumari Vijayalaxmi and Others1 has laid down detailed guidelines as to how the application for appointment of the Court Commissioner has to be considered by the trial Court. This Court held that rejection of the application for appointment of Court Commissioner amounts to denial to a party to lead evidence and generally, the application for appointment of the Court Commissioner should be entertained only after the conclusion of the trial. In the case on hand, the plaintiffs have rightly sought the appointment of the Court Commissioner to measure the disputed extent to ascertain the illegal construction made by the defendant in the property allotted in favour of the 1 2023 SCC OnLine Kar 53 - 8 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 plaintiff under the registered partition deed dated 28.10.1977. The issue with regard to the obstruction as alleged by the plaintiffs is required to be ascertained by the trial court. It is not in dispute that the said assertion of obstruction has been pleaded and sufficient evidence is placed on record before the trial Court. In my considered view, appointment of the Court Commissioner would assist the trial Court in deciding the dispute and it would aid the trial Court to arrive at a just conclusion. Ultimately, mere appointment of the Court Commissioner would not amount to accepting the case of the plaintiffs. The defendant would have all the opportunity to object the said Commissioner's report if it goes contrary to the deed of partition dated 28.10.1977. Having said so, I am of the considered view that the writ petition deserves to be allowed. 7. The learned senior counsel for the respondent is right in his submission that it would be appropriate for the Official Surveyor to inspect the property referred in the - 9 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 deed of partition dated 28.10.1977 and measure both the properties and ascertain the extent of construction made by the defendant on the property of the plaintiffs as alleged in the plaint. For the aforementioned reasons, I proceed to pass the following: ORDER i) The writ petition is allowed. ii) The impugned order dated 30.11.2019 passed on application file by the petitioners/plaintiffs under Order XXVI Rule 9 r/w Section 151 of CPC in OS.No.7523/2013 is hereby set aside. iii) Consequently, application file by the petitioners/plaintiffs under Order XXVI Rule 9 r/w Section 151 of CPC is allowed. iv) The trial Court is directed to appoint Official Surveyor by directing the Official Surveyor to measure the entire extent of the property referred in partition deed dated 28.10.1977 and thereafter, find out whether there is any - 10 - HC-KAR NC: 2025:KHC:28346 W.P. No.51868/2019 encroachment/construction made by the defendant in the property of the plaintiffs or in the common passage. No orders as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 42