- 1 - HC-KAR NC: 2026:KHC:27079 W.P. No.4130/2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.4130/2022 (GM-CPC) BETWEEN: SMT. A. JAYASHREE B. SHETTY D/O LATE KOLKEBAIL BHUJANGA SHETTY AGED ABOUT 72 YEARS R/AT: SRINIVASA OPPOSITE HEAD POST OFFICE KUNDAPURA, UDUPI-576201. …PETITIONER (BY SRI. AJITH A. SHETTY, ADV.,) AND: 1. MR. M.A. VARGHESE S/O ANTHONY AGED ABOUT 50 YEARS R/AT MALIAKAL HOUSE, AZHAKAM POST MOOKKANNUR ALWAYE TALUK ERNAKULAM DISTRICT, KERALA. 2. MR. M.C. CHALANT S/O CHACKAPPAM AGED ABOUT 39 YEARS R/AT MALIAKAL HOUSE AZHAKAM POST, MOOKKANNUR ALWAYE TALUK ERNAKULAM DISTRICT, KERALA. 3. MR. VITTAL KULAL S/O LATE MUTTA KULAL AGED ABOUT 50 YEARS Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:27079 W.P. No.4130/2022 R/AT SANGALLU, YADTHADI VILLAGE UDUPI TALUK. 4. MR. BASAVA KULAL S/O LATE MUTTA KULAL AGED ABOUT 50 YEARS R/AT SANGALLU YADTHADI VILLAGE UDUPI TALUK. 5. SMT. PRAFULLA M. BALLAL D/O LATE KOLKEBAIL BHUJANGA SHETTY W/O SRI. MAHABALA M. BALLAL AGED ABOUT 85 YEARS. R/AT BHANDASALE, YADTHADI VILLAGE UDUPI TALUK AND DISTRICT. 6. SMT. VINODA S. SHETTY D/O LATE KOLKEBAIL BHUJANGA SHETTY W/O SRI SHEKAR SHETTY AGED ABOUT 80 YEARS RESIDING AT NO.567, 5TH MAIN ANEESH, SADASHIVANAGAR BANGALORE. …RESPONDENTS (BY SMT. AISHWARYA HEGDE, ADV., FOR SRI. GURURAJ R, ADV., FOR R1 TO R4 R5 AND R6 ARE SERVED BUT UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN I.S.NO.90/2011 PENDING ON THE FILE OF THE HON’BLE PRINCIPAL CIVIL JUDGE AT KUNDAPURA. QUASH THE IMPUGNED ORDER DTD.3.10.2017 PASSED BY THE HON’BLE PRINCIPAL CIVIL JUDGE AT KUNDAPURA IN O.S.NO.90/2011 AS PER ANNEXURE-E TO THE PRESENT W.P. & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC:27079 W.P. No.4130/2022 CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed challenging the orders dated 03.10.2017, 07.06.2019 and 04.02.2022 passed in OS.No.90/2011 by the Principal Civil Judge, Kundapura (for short ‘the trial Court’). 2. Heard Sri.Ajith A. Shetty, learned counsel appearing for the petitioner, Smt.Aishwarya Hegde, learned counsel for Sri.Gururaj R., learned counsel appearing for respondent Nos.1 to 4 and meticulously perused the material available on record. 3. The petitioner has filed a suit for possession of the property and other consequential reliefs on the premise that the defendants in OS.No.90/2011 have encroached the schedule ‘B’ property and based on such assertion, an application was filed seeking appointment of a Court Commissioner, which came to be allowed by the trial Court. Thereafter, the said order appointing a learned - 4 - HC-KAR NC: 2026:KHC:27079 W.P. No.4130/2022 member of the Bar as Court Commissioner was assailed before this Court in WP.No.16345/2014 and this Court, vide order dated 02.04.2014 upheld the appointment of the Court Commissioner. Later, as per the observations of the High Court, and after recording the evidence, the Court Commissioner undertook the work as per the memo of instructions filed by both the plaintiff and defendants, conducted a spot inspection and submitted a report. The said report of the Court Commissioner was opposed by defendant Nos.1, 2 and 5 mainly on the ground that the learned member of the bar who has been appointed as the Court Commissioner had not served notice upon them and that they were not previewed to the entire survey process. Hence, the Court Commissioner report was bad. The trial Court vide order dated 03.10.2017 upheld the contentions of the respondents and rejected the report of the Court Commissioner on the ground that the learned Court Commissioner has proceeded to tender opinion as well that there is encroachment by the defendants. - 5 - HC-KAR NC: 2026:KHC:27079 W.P. No.4130/2022 4. Be that as it may, the petitioner filed an application seeking review of the order dated 03.10.2017, which also came to be rejected by the trial Court on 07.06.2019. Thereafter, the petitioner herein filed another application seeking permission to examine the Court Commissioner as his witness and to adduce his evidence, which also came to be rejected by the trial Court vide order dated 04.02.2022. These orders are assailed before this Court. 5. It is to be noticed that the petitioner/plaintiff has made specific assertion before the trial Court that the defendants have encroached ‘B’ schedule property and based on such assertion, the appointment of a Court Commissioner was affirmed by this Court in WP.No.16345/2014 vide order dated 02.04.2014. Thereafter, a report was submitted by the Court Commissioner, the same was rejected by the trial Court for the aforementioned reasons. It is further to be noticed that the parties to the proceedings are not in dispute that - 6 - HC-KAR NC: 2026:KHC:27079 W.P. No.4130/2022 the appointment of a Court Commissioner is necessary for proper adjudication of the dispute between them. In my considered view, instead of examining the correctness of the impugned orders, it would be appropriate to appoint a official surveyor as a Court Commissioner to conduct a fresh survey, which would meet the ends of the justice. 6. The learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents fairly concedes to the said suggestion. However, the learned counsel for the respondents submits that the newly appointed Court Commissioner shall follow the procedure contemplated under law by providing opportunity to the other side. The said submission is placed on record. For the aforementioned reasons, I proceed to pass the following: ORDER i. The writ petition is allowed-in-part. - 7 - HC-KAR NC: 2026:KHC:27079 W.P. No.4130/2022 ii. The trial Court shall appoint Taluka Surveyor as a Court Commissioner to conduct the survey as sought in the application filed by the petitioner for appointment of the Court Commissioner. iii. The Court Commissioner shall conduct the survey as per the memo of instructions already placed before the Court and submit the report before the Court. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 30