- 1 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 32110 OF 2024 (GM-CPC) BETWEEN: 1. SR GOPAL S/O RANGASHETTY AGED ABOUT 69 YEARS, 2. S G LOKESH S/O S R GOPAL AGED ABOUT 40 YEARS, AND RESIDING AT LAKSHMIPURAM BADAVANE, NEAR WATER TANK SAKLESHPURA TOWN SAKLESHPURA – 573 134 …PETITIONERS (BY SRI. ABHINAY Y. T., ADVOCATE) AND: SMT CHANDRAMMA W/O N. SRINIVAS, AGED ABOUT 68 YEARS, REPRESENTED BY HER GPA HODER N. SRINIVAS S/O LATE NANJUDNASHETTY, AGED ABOUT 70 YEARS, RESIDING AT MALLIKARJUNA NAGAR, SAKALESHPURA TOWN SAKALESHPURA – 573 134 …RESPONDENT (BY SRI. PRAVEEN P.K., ADVOCATE) THIS W.P. IS FILED UNDER ARTICLES 226 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 20TH OF NOVEMBER 2024 PASSED ON IA NO. V PASSED IN O.S.NO. 273 OF 2023 BY THE C/C CIVIL JUDGE AND JMFC, SAKALESHPURA (ANNEXURE F) AND CONSEQUENTLY DISMISS IA NO. V, GRANT AN INTERIM ORDER TO STAY ALL FURTHER PROCEEDINGS PURSUANT TO THE ORDER DATED 20TH OF NOVEMBER 2024 PASSED IN OS NO. 273 OF 2023 IA NO. V BY THE C/C CIVIL JUDGE AND JMFC, SAKALESHPURA (ANNEXURE F), THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by the defendants in O.S.No.273/2023 on the file of the C/C Civil Judge and JMFC, Sakaleshpura (for short “the Trial Court”) is directed against the impugned order dated 20.11.2024, whereby the application filed by the respondent plaintiff under Order XXVI Rule 9 CPC seeking appointment of a Court Commissioner to conduct local inspection of the suit schedule property was allowed by the Trial Court by holding as under. “ORDERS ON APPLICATION FILED BY THE PLAINTIFF UNDER ORDER XXVI RULE 9 OF CPC The plaintiff has filed application under order XXVI Rule 9 of CPC, for appointment of ADLR as court commissioner for measurement of suit, schedule property and fixation of boundaries towards western side of suit schedule property. - 3 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 2. The GPA holder of plaintiff in his affidavit has stated that, she has filed the present suit for the relief of permanent injunction against the defendants. When temporary injunction is in substance, pursuant to the order, the defendants have given requisition before Tahsildar to remove the wooden blocks put across western side of suit schedule property. The Tahsildar has passed an order to remove the same by violating the interim order passed this court. The defendants are the adjacent owners of the suit schedule property and trying to encroach the western side of suit schedule property. Hence, it is very much necessary to appoint court commissioner to determine the measurement of the suit schedule property and show the boundaries. Hence, prayed to allow the application. 3. The defendants have filed objections to the application by denying the contention of plaintiff. They have contended that, in a suit for bare injunction, the court commissioner cannot appointment to measure the property and fixed the boundaries. After temporary injunction is granted, the plaintiff has filed this application to mislead the court. The order passed by the Tahsildar as the plaintiff tried to cause obstructions to the usage of the road. The plaintiff is trying to collect the evidence by way of filing this application. The plaintiff has filed this application along with application for amendment of plaint only fill up the lacuna. Accordingly, prayed to dismiss the application. 4. Heard arguments. The learned counsel for the plaintiff has relied upon the following decisions. - 4 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 a) WP No. 201274/2022 (GM-CPC) dated 24.01.2023. b) 1991 ClLJ 474 dated 06.10.1989. c) 1991 (1) OLR 340 dated 22.02.1991. The learned counsel for defendants has relied upon the following decisions. a) WP No. 35317-18-2009 (GM-CPC) dated: 03.03.2010. b) ILR 2010 KAR 897. 5. In light of the above contentions, the infra points that would arise for my consideration. 1. Whether the plaintiff has made out a case to appoint a court commissioner as prayed in the application? 2. What order? 6. My findings on the above points are as under: Point No.1: In the Affirmative Point No.2: As per final order for the following: REASONS 7. Point No.1: This is a suit for the relief of permanent injunction. It is to note here that the plaintiff has contended, the defendants are trying to encroach the property towards western side. She has also contended that it is necessary to determine the boundaries as the property of the defendants is situated adjacent to the suit schedule - 5 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 property. Hence prayed for appointment of Commissioner to measure the property and submit report as to encroachment if any. It is not in dispute that, the properties of plaintiff and defendants are situated adjacent to each other. Now the only question is whether the defendants are trying to demolish the fence towards western side and causing obstructions. Thus, it is clear that the boundary dispute is in question with respect to the properties of plaintiff and defendants. 8. At the time of the arguments; the learned counsel for the plaintiff has relied upon the decisions of Hon'ble High Court of Karnataka reported in 2023 (3) ICC 57 (Karnataka) and contended that, it is just and necessary to appoint the Court Commissioner in respect of the dispute of encroachment. It is to note here that the present application is not with respect to appointment of commissioner for the purpose of determining the possession of the parties. But, with respect to the boundaries and measurement of the suit schedule properties. Hence, the decisions relied by the learned counsel for the plaintiff is aptly applicable to the present facts of the case. However, the present application filed only to submit report with respect to measurement and boundaries of the suit schedule properties. 9. At the time of arguments, the learned counsel for defendants has relied upon the supra mentioned decisions and argued in a suit for permanent injunction court commissioner cannot be appointed. It is note that on perusal of the application, it is not respect to collection of - 6 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 evidence as to the possession but to determine boundaries and encroachment. The above decision relied by the learned counsel for the plaintiff would aptly applicable to the present case. Even, the decision relied by the defendant reported in ILR 2010 KAR 897, the Hon'ble High Court of Karnataka has held that court commissioner can be appointed with respect to identification of Survey numbers. 10. In 2014(2) KCCR 1652, Hon'ble High Court of Karnataka held that "only if the plaintiffs are able to show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is not a substitute or sufficient to prove the encroachment. To cut short the litigation to reduce recording evidence, the trial Court in its wisdom, thought it fit to appoint a commissioner even before the commencement of the trial. That is how the duration of the litigation could be curtailed and speedy disposal of the Civil matter could be achieved." 11. In ILR 2001 KAR 5013, the Hon'ble High Court of Karnataka held that "in a suit for injunction wherein parties allege encroachment of property, where correct extent and boundaries of the property are in dispute. It is just and necessary that a survey has to be conducted and the boundaries of the properties are to be identified, in such a situation, appointment of Commissioner should not be mistaken for collecting evidence." - 7 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 12. In view of the above decisions, if present case is discussed, it is clear that the crux of issue is with respect to alleged encroachment and boundaries. On perusal of the application, it is clear that the proposed appointment of the Court Commissioner is not for the purpose of collection of evidence as to the possession, but only with respect to measurement and boundaries. In view of the above, in order to curtail the duration of litigation, this court of the opinion that the application deserves to be allowed. Hence point No.1 in Affirmative. 13. Point No.2: For the above discussed reasons, this court proceeds to pass the following: ORDER IA No.V filed by the plaintiff under Order XXVI rule 9 of CPC is hereby allowed. The Taluka Surveyor is hereby appointed as Court Commissioner to make local investigation for the purpose of executing work as enumerated in the application. Both the parties are directed to file respective memo of instruction in furtherance of the work to be executed as sought for as per the application. The Commissioner fee is fixed at 3,000/-.” 2. Heard learned counsel for the petitioners and learned counsel for the respondent and perused the material on record. - 8 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 3. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the considered opinion that the impugned order passed by the Trial Court is in conformity with well settled principles of law governing appointment of Court Commissioners for the purpose of conducting local inspection as enunciated by this Court in the case of Sri. Shadaksharappa v Kumari Vijayalaxmi & others – 2023 SCC OnLine KAR 53 4. In addition there to, the rival contentions comprising of the pleadings of the parties, evidence etc., indicates that there is a serious dispute as regards location, identity, boundaries, measurement and schedule of the property claimed by both sides, which would warrant appointment of a Court Commissioner to conduct local inspection. 5. Under these circumstances, I am of the considered opinion that the impugned order cannot be set to suffer by any illegality or infirmity nor can the same be said to be capricious or perverse or having occasioned failure of justice warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the - 9 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 cases of Radhey Shyam Vs. Chhabi Nath – (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohammed Ali Vs. Jaya – (2022) 10 SCC 477. 6. In the result, I pass the following: ORDER (i) The petition is disposed of by clarifying the impugned order. (ii) IA No. 5 filed by the plaintiff is hereby allowed by directing the Trial Court to appoint a Court Commissioner to conduct local inspection of the suit schedule property and to proceed further, in accordance with law. (iii) Liberty is reserved in favour of both parties to file their respective Memos of Instructions before the Court Commissioner. (iv) Liberty is reserved in favour of both parties to file objections to the Commissioner's Report. (v) Liberty is reserved in favour of both parties to cross-examine the Court Commissioner. - 10 - HC-KAR NC: 2026:KHC:8489 WP No. 32110 of 2024 (vi) All rival contentions on all aspects of the matter are kept/left open and no opinion is expressed on merits/demerits of the rival contentions. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC List No.: 3 Sl No.: 5