- 1 - HC-KAR NC: 2026:KHC:15106 WP No. 23335 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 23335 OF 2021 (GM-CPC) BETWEEN: SRI H D SHAMAIAH GOWDA S/O LATE DASANNA GOWDA AGED ABOUT 76 YEARS, R/AT BAINESARA, KUDUMALLIGE (P) THIRTHAHALLI TALUK SHIVAMOGA DISTRICT- 577 432 …PETITIONER (BY SRI. PRADEEP H S., ADVOCATE) AND: 1. SRI UMESH S/O HIRIYANNA GOWDA AGED ABOUT 56 YEARS, R/AT KUMCHERI KATTEHAKLU (P) THIRTHAHALLI TALUK, SHIVAMOGGA DISTRICT- 577 432 2. SRI SHAMAIAH GOWDA S/O NAGAPPA GOWDA AGED ABOUT 76 YEARS, R/AT BILLUKOPPA, HOLEKOPPA VILLAGE, KATEHAKLU (P), THIRTHAHALLI TALUK, SHIVAMOGGA DISTRICT- 577 432 …RESPONDENTS Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:15106 WP No. 23335 of 2021 (BY SRI. P.N.HARISH, ADVOCATE FOR R1; NOTICE TO R2 IS D/W V/O DTD 17.02.2025) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNER ORDER ANENXURE-A DATED 02.12.2021 PASSED IN OS.NO.9/2015 ON IA.NO.11/2021 BY THE II ADDL.CIVIL JUDGE AND JMFC AT THIRTHAHALLI BY ALLOWING THE APPLICATION FILED BY THE DEFENDANT NO.1. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed challenging the order dated 02.12.2021 passed in O.S.No.9/2015 on I.A.11/2021 by II Additional Civil Judge and JMFC, Thirthahalli (for short 'the Trial Court'). 2. Sri.H.S.Pradeep, learned counsel appearing for the petitioner / plaintiff submits that the petitioner has filed a suit for permanent injunction alleging that the defendants are interfering with the peaceful possession and enjoyment of the property. In the said suit, the parties have adduced the evidence. After trial, defendant No.1 filed an application for appointment of Court Commissioner to measure the land, which - 3 - HC-KAR NC: 2026:KHC:15106 WP No. 23335 of 2021 came to be allowed by the trial Court under the impugned order. It is submitted that the suit schedule property is Survey No.115 of Holekoppa Village and the survey sought to be conducted is of different survey numbers and without considering any of these aspects, the application came to be allowed. It is further submitted that it is the petitioner/plaintiff who is required to prove his lawful possession in the suit and if he fails to prove the same, the Court, would not decree the suit. However, at the instance of defendant No.1, the application for appointment of Court Commissioner came to be allowed to different survey numbers, which is impermissible. In support of his contention, he placed reliance on the following judgments: (i) 'SMT.NARAYANASETTI KRISHNAVENI V.C. CHINNAPPA & OTHERS', W.P.NO.46012/2017. (ii) 'RAM VS. KUNDLIK & ANOTHER', W.P.NO.1432/2005 (iii) C.MANJUNATH VS. RAGHAVENDRA & ANOTHER', 135610/2013. (iv) H.S.MANJAPPA VS. JAGANNATHA', 2022(2) KAR.L.R.684. - 4 - HC-KAR NC: 2026:KHC:15106 WP No. 23335 of 2021 3. Per contra, Sri.Harish, learned counsel appearing for respondent No.1 supports the order of the Trial court and submits that the defendant No.1 in the written statement has specifically pleaded that the plaintiff has encroached vast extent of the Government land. It is submitted that There is no check bandi to the property claimed by the plaintiff due to which the way to the temple has been encroached. It is further submitted that PW1, in his evidence has also admitted that he has no objection to appoint the Court Commissioner. Hence, he seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel appearing for the petitioner, learned counsel for the respondent and meticulously perused the material available on record. 5. The petitioner. has filed O.S.No.9/2015 before the Trial Court, seeking relief of permanent injunction against the defendants and their men from trespassing over the suit schedule property. The suit schedule property referred in the claim is the part and parcel of 2 acres 22 guntas of dry land in Survey No.115, situated at Holekoppa Village in Muttur Hobli, Thirthahalli Taluk, Shivamogga District. - 5 - HC-KAR NC: 2026:KHC:15106 WP No. 23335 of 2021 6. The defendant No.1 opposed the same, by filing a written statement. A perusal of the written statement indicates that the defendant No.1 has made a vague assertion that the petitioner has encroached certain portion of the Government land. The written statement does not indicate that the petitioner has encroached Sy.Nos.116 and 117. It is to be noticed that after the trial, the defendant filed an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 seeking to appoint a Court Commissioner consisting of a practicing Advocate and a Taluk Surveyor to measure the properties referred in the affidavit accompanying the application. 7. A perusal of the affidavit accompanying the application indicates that the defendant No.1 sought to conduct the survey of Survey Nos.116 and 117 of Holekoppa Village, admittedly, those properties are not the subject matter of the suit. It is to be noticed that the petitioner is knocking the door of the Civil Court based on the assertion made in the plaint that he has been granted a land measuring 5 acres 22 guntas in Sy.No.115 of Holekoppa Village and pursuant to such a grant, he is in lawful position. It is for the plaintiff to prove his prima - 6 - HC-KAR NC: 2026:KHC:15106 WP No. 23335 of 2021 facie title and lawful possession before the Civil Court. The impugned order of the trial Court allowing the application seeking to conduct a survey of different lands, which is not the subject matter of the suit is impermissible. If the petitioner encroached any other extent of land as alleged in the written statement or in the affidavit accompanying the application, it is open for them to initiate appropriate proceedings and they cannot take such a stand in the pending suit. The judgment relied upon by the learned counsel for the petitioner referred to supra squarely apply to the facts of the case. Considering the enunciation of law, I am of the considered view that the trial Court has committed a grave error in ordering for conducting the survey of the different survey numbers other than the suit schedule property. For the aforementioned reasons, I proceed to pass the following: O R D E R (i) The writ petition is allowed. (ii) The impugned order dated 02.12.2021 passed on I.A.No.11/2021 in O.S.No.9 of 2015 by the II Additional Civil Judge and JMFC, Thirthahalli is set aside. - 7 - HC-KAR NC: 2026:KHC:15106 WP No. 23335 of 2021 (iii) Consequently I.A.No.11/2021 filed by the defendant No.1 is rejected. In view of the disposal of the petition, I.A.1/2025 would not survive for consideration and the same stands disposed of. Sd/- (VIJAYKUMAR A. PATIL) JUDGE SS List No.: 1 Sl No.: 13