- 1 - HC-KAR NC: 2025:KHC-D:14634 WP No. 105203 of 2024 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 29TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO. 105203 OF 2024 (GM-CPC) BETWEEN: SMT. VENKAVVA W/O DUNDAPPA YADAHALLI, AGE. 53 YEARS, OCC. AGRICULTURE, R/O. BARAGI, TQ. MUDHOL, DIST. BAGALKOT-587 313. … PETITIONER (BY SRI. GIRISH A. YADAWAD, ADVOCATE) AND: 1. SMT. KASTURI W/O TIMMANNA MELLIGERI, AGE. 48 YEARS, OCC. HOUSEHOLD WORK AND AGRICULTURE, R/O. NEAR BUS STAND, GALAGALI, TQ. BILAGI, DIST. BAGALKOT-587 116. 2. PALLAVI D/O TIMMANNA MELLIGERI, AGE. 25 YEARS, R/O. NEAR BUS STAND, GALAGALI, TQ. BILAGI, DIST. BAGALKOT-587 116. 3. SWAPNA D/O TIMMANNA MELLIGERI, AGE. 24 YEARS, R/O. NEAR BUS STAND, GALAGALI, TQ. BILAGI, DIST. BAGALKOT-587 116. 4. SHRIDHAR S/O TIMMANNA MELLIGERI, AGE. 22 YEARS, R/O. NEAR BUS STAND, GALAGALI, TQ. BILAGI, DIST. BAGALKOT-587 116. … RESPONDENTS (BY SRI. N.L. BATAKURKI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 09.07.2024 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, MUDHOL ON IA NO.6 IN OS NO.68/2011, VIDE ANNEXURE-G, IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:14634 WP No. 105203 of 2024 THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This petition is filed under Article 227 of the Constitution of India by the petitioner assailing the order dated 09.07.2024 passed on I.A.No.VI under Order XXVI Rule 9 r/w Section 151 of the Code of Civil Procedure, 19081, in O.S.No.68/2011 on the file of Additional Civil Judge, Mudhol2, marked as Annexure-G. 2. The Trial Court appointed a Court Commissioner in a suit for possession, wherein the petitioner/plaintiff alleges that the defendants have encroached 38 guntas of the suit property. The case is based on the premise that a survey had been conducted prior to the institution of the suit, and it is claimed that the said survey was carried out after due notice to the defendants/respondents. 3. Learned counsel for the defendants/respondents, on the other hand, would submit that no notice was served upon the defendants before conducting the survey and, therefore, the 1 Hereinafter referred to as the ‘CPC’ 2 Hereinafter referred to as the ‘Trial Court’ - 3 - HC-KAR NC: 2025:KHC-D:14634 WP No. 105203 of 2024 survey report is unreliable and inadmissible. Thus, he would contend that the defendants filed an application seeking appointment of a Survey Commissioner to measure the suit property. The Trial Court allowed the application, holding that the Commissioner’s report would be necessary for proper adjudication of the case. Hence, it is submitted that there is nothing wrong in the order passed by the Trial Court. 4. This Court has considered the contentions raised at the Bar and perused the records. 5. If there is already a survey after due notice to the defendants, then there is no need to appoint one more surveyor unless the report is shown to be wrong. 6. Thus, the Trial Court is required to consider whether the notice is duly served on the defendants before preparing Ex.P3 marked as Annexure-B. If the Court finds that notice is not duly served on the defendants, then the Court shall appoint a Survey Commissioner to measure the property. 7. If it is found that the notice is duly served on the defendants, still it is open for the defendants to show that the - 4 - HC-KAR NC: 2025:KHC-D:14634 WP No. 105203 of 2024 survey sketch at Ex.P3 is erroneous. If the court is convinced that after the cross examination of the Commissioner or on consideration of the other materials on record that the report is erroneous, the Court shall thereafter issue a commission warrant to measure the suit property. 8. Hence, the following: ORDER a) The writ petition is allowed. b) The order dated 09.07.2024 passed on I.A.No.VI under Order XXVI Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908, in O.S.No.68/2011 on the file of Additional Civil Judge, Mudhol, marked as Annexure-G, is quashed. c) The Trial Court shall proceed to hear the case, keeping in mind the observations made above. - 5 - HC-KAR NC: 2025:KHC-D:14634 WP No. 105203 of 2024 d) The Trial Court shall secure the records from the Survey Department to find out whether the notice is duly served or not. If not, the Court shall appoint the surveyor to measure the land. e) Both parties shall co-operate for early disposal Sd/- (ANANT RAMANATH HEGDE) JUDGE PMP CT:BCK LIST NO.: 1 SL NO.: 72