- 1 - HC-KAR NC: 2025:KHC:54626 WP No. 21766 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 21766 OF 2023 (GM-CPC) BETWEEN: SRI A. NAGARAJ S/O ASHWATHAPPA AGED ABOUT 65 YEARS R./AT NO. 894, 5th WARD PRASHNTHA NAGAR CHICKBALLAPURA CITY - 562 101. …PETITIONER (BY SRI HARSHA G, ADV., FOR SMT. RADHA R, ADV.) AND: SRI SANJEEVAPPA S/O NYATHAPPA AGED ABOUT 64 YEARS R/AT NASTHIMMANAHALLI VILLAGE MANDIKAL HOBLI CHICKBALLAPURA TALUK - 562 101. …RESPONDENT (BY SRI SHIVAKUMAR V, ADV.) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ALLOW THIS WRIT THEREBY SET ASIDE THE ORDER DTD 19.08.2023 PASSED BY HONBLE PRINCIPAL CIVIL JUDGE AND JMFC CHIKKBALLAPURA, IN I.A.NO. FILED U/O 26 RULE 9 R/W SECTION 151 OF CODE OF CIVIL PROCEDURE IN VIII IN OS.NO.529/2017 UNDER ANNEXURE-A IN TURN ALLOW THE SAID I.A.NO.VIII TO APPOINT THE COMMISSIONER. Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:54626 WP No. 21766 of 2023 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GRUOP, 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 19.08.2023 passed on IA.no.8 in O.S.No.529/2017 by the Court of Grama Nyayalaya, Mandikal, Chikkaballapura. 2. Heard the learned Counsel for the parties. 3. Suit in O.S.No.529/2017 is filed by the petitioner herein seeking the relief of permanent injunction against the respondent in respect of the suit schedule property. 4. Respondent/defendant has filed his written statement opposing the suit claim. 5. When the suit was at the stage of recording defendant's evidence, application under Order XXVI Rule 9 CPC read with Section 151 CPC was filed on behalf of the plaintiff with a - 3 - HC-KAR NC: 2025:KHC:54626 WP No. 21766 of 2023 prayer to appoint a Court Commissioner for conducting local inspection of the property, identification of suit schedule property and to confirm the boundaries of the suit schedule property. 6. The said application was opposed by the defendant. 7. The Trial Court by the impugned order dated 19.08.2023 has rejected the said application. Aggrieved by the same, the plaintiff is before this Court. 8. Learned Counsel for the petitioner having reiterated the grounds urged in the petition, submits that for the purpose of identification of the suit schedule property, it is necessary to appoint a Court Commissioner. The Trial Court has failed to appreciate this aspect of the matter. Accordingly, he prays to allow the petition. 9. Per contra, learned Counsel for the respondent/defendant has argued in support of the impugned order. 10. The material on record would go to show that the suit in O.S.No.529/2017 is filed by the petitioner herein against the - 4 - HC-KAR NC: 2025:KHC:54626 WP No. 21766 of 2023 respondent seeking the relief of permanent injunction in respect of the property bearing Sy. No.40, New Sy. No.264 totally measuring 4 acres situated at Yarramarenahalli village, Mandikal Hobli, Chickballapura Taluk. 11. The respondent has filed a separate suit in O.S.No.191/2017 before the very same court against the petitioner herein seeking a decree of permanent injunction in respect of property bearing Sy. No.40 measuring 2 acres 8 guntas situated in Yarramarenahalli village, Mandikal Hobli, Chickballapura Taluk. 12. A reading of the plaint in both the suits would go to show that property bearing Sy. No.40 totally measures 266 acres 19 guntas and it appears that petitioner herein claims right over an extent of 4 acres of land under a grant order made in his favour. Similarly, respondent herein also claims right over an extent of 2 acres 8 guntas of land in Sy. No.40 under a grant order allegedly made in his favour. The boundaries of the suit schedule properties in both the suits are totally different. - 5 - HC-KAR NC: 2025:KHC:54626 WP No. 21766 of 2023 13. The relief of injunction is sought on the basis of the title of the plaintiff in both the suits. There is no allegation in both the suits about the other side having encroached over the suit schedule property. The Trial Court having appreciated the aforesaid aspects of the matter has rightly rejected the application placing reliance on the judgment of the coordinate bench of this Court in the case of SHADAKSHARAPPA VS KUMARI VIJAYALAKSHMI & OTHERS - WP.No.201274/2022 dated 24.01.2023, wherein it is observed that when both the parties claim that they are in possession of the property in dispute, local inspection cannot be ordered to ascertain the possession. In the said judgment, this Court has observed that the question of possession has to be decided by the court. It is trite that court commissioner cannot be appointed for the purpose of collecting evidence. 14. In the case on hand, having regard to the facts and circumstances of the case and the averments found in the plaint in O.S.No.529/2017 & O.S.No.191/2017, I am of the opinion that the Trial Court was fully justified in rejecting - 6 - HC-KAR NC: 2025:KHC:54626 WP No. 21766 of 2023 IA.no.8. I do not find any good ground to entertain this petition. Accordingly, petition is dismissed. 15. It is needless to state that the Trial Court shall make all endeavours to dispose of the suits, as expeditiously as possible. Sd/- (S VISHWAJITH SHETTY) JUDGE KK