- 1 - HC-KAR NC: 2026:KHC:10862 WP No. 3909 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE JAYANT BANERJI WRIT PETITION NO. 3909 OF 2026 (GM-CPC) BETWEEN: 1. SMT.GANGAMMA, W/O LATE SRI SIDDALINGAIAH, AGED ABOUT 65 YEARS, 2. MR.SIDDAIAH, S/O LATE SRI SIDDALINGAIAH, AGED ABOUT 45 YEARS, BOTH ARE R/AT: AMBEDKAR NAGARA, SUBRAMANYA TEMPLE STREET, M.C.HALLI, VILLAGE AND POST, KASABA HOBLI, TARIKERE TALUK-577 228. …PETITIONERS (BY SRI B.N.JAYADEVA., ADVOCATE) AND: 1. SMT.LAXMAMMA, W/O SRI CHIKKA RAMAIAH, AGED ABOUT 76 YEARS, 2. SRI.RAVISHANKAR, S/O SRI CHIKKA RAMAIAH, AGED ABOUT 56 YEARS, BOTH ARE R/AT: KHB 88/A, GOLDEN JUBILEE COLONY, UPPER HUTTA, BHADRAVATHI-577 301. …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER AT ANNEXURE-G DATED 09.09.2025, PASSED IN O.S. NO.107 OF 2018 ON THE FILE OF THE SENIOR CIVIL, JUDGE AND PRINCIPAL JMFC AT TARIKERE REJECTING THE APPLICATION FILED UNDER ORDER XXVI Digitally signed by KAVYA G Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:10862 WP No. 3909 of 2026 RULE 9 READ WITH SECTION 151 OF CODE OF CIVIL PROCEDURE AT ANNEXURE E. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI ORAL ORDER Heard learned Counsel for the petitioners. 2. This petition has been filed under Article 227 of the Constitution of India seeking the following reliefs: (a) Issue a writ of certiorari or any other appropriate writ, order or direction setting aside the order at Annexure-G dated 09.09.2025 passed in O.S.No.107 of 2018 on the file of the Hon’ble Senior Civil Judge and JMFC at Tarikere rejecting the application filed under Order 26 Rule 9 read with section 151 of Code of Civil Procedure at Annexure-E, and allow the said application at Annexure-E. (b) and grant such other reliefs as deemed just in the circumstances including cost in the ends of justice and equity.” 3. The order under challenge is dated 09.09.2025 passed in O.S.No.107/2018 on the file of the Senior Civil Judge and Principal JMFC at Tarikere rejecting the application filed by - 3 - HC-KAR NC: 2026:KHC:10862 WP No. 3909 of 2026 the defendants/petitioners under Order XXVI Rule 9 read with Section 151 of CPC. 4. The suit is one for declaration and possession. Further relief of mesne profits and permanent injunction is also sought. I.A.No.11 was moved by the petitioners under Order XXVI Rule 9 read with Section 151 of CPC for appointing a Court Commissioner to measure/demarcate the suit schedule property and also the property of the defendants and to report encroachment if any over the suit schedule property. 5. The point that was formulated for consideration by the trial Court is as follows: “1. Whether the defendants have made out reasonable grounds to appoint the court Commissioner for local inspection? 2. What order?” 6. Point No.1 was answered in the negative. The trial Court observed that the plaintiff has approached the Court with a specific allegation that the defendants/petitioners are in illegal possession of the property belonging to the plaintiff described in Schedule ‘B’ of the plaint. The burden is on the - 4 - HC-KAR NC: 2026:KHC:10862 WP No. 3909 of 2026 plaintiff to establish his case. It is his duty to discharge the burden. The trial Court observed that since the burden is on the plaintiff, question of appointing the Court Commissioner at the instance of the defendants does not arise at all. 7. The settled law was that decision of material issue cannot be left to a Commissioner. A judgment of this Court in Puttappa v. Ramappa [AIR 1996 KAR 257] was also relied upon by the trial Court. Accordingly the IA filed by the defendants was rejected. 8. Though the learned Counsel for the petitioners has vehemently argued that it is necessary to determine the area of the alleged encroachment made by the defendants if any and that IA deserves to be allowed as the demarcation would have given the details/boundaries of the property in dispute which would have well identified the property, however, the order of the learned Senior Civil Judge is based on the established principle of law that the onus is on the plaintiff to prove his case. 9. The appointment of a Commissioner is not to be sought by a party for the purpose of collecting evidence. In - 5 - HC-KAR NC: 2026:KHC:10862 WP No. 3909 of 2026 view of the above, this Court finds no error of jurisdiction or perversity in the order impugned that would merit interference. This petition is therefore dismissed. 10. The Registry is directed to communicate this order to the concerned trial Court within fifteen days from today so that it is kept on the record. Sd/- (JAYANT BANERJI) JUDGE KSR List No.: 1 Sl No.: 5