- 1 - HC-KAR NC: 2026:KHC:28195 WP No. 35735 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JUNE, 2026 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 35735 OF 2025 (GM-CPC) BETWEEN: SRI B.N.SUBRAMANI S/O B.N NARAYANA, AGED ABOUT 51 YEARS, R/AT KALAKERI NIDUGANE VILLAGE, MADIKERI TALUK, KODAGU DISTRICT-571 202 …PETITIONER (BY SRI. K.CHANDRANATH ARIGA, ADVOCATE) AND: SRI T.S.SATHYANARAYANA S/O LATE T.R SIDDARAJU, AGED ABOUT 67 YEARS, R/AT DOOR NO.3042, 18TH CROSS, HEBBAL 2ND STAGE, MYSORE - 570 016. …RESPONDENT (BY SRI. KARUMBAIAH T.A., ADVOCATE) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN OS NO. 81/2024 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, MADIKERI AND SET ASIDE THE ORDER DATED 21.03.2025 PASSED BY THE PRL. CIVIL JUDGE AND JMFC, MADIKERI ON IA NO. 6 IN OS NO. 81/2024 (ANNEXURE- E). THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:28195 WP No. 35735 of 2025 CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER The present writ petition is filed aggrieved by the order passed in I.A.No.6 in O.S.No.81/2024 dated 21.03.2025 by the Principal Civil Judge and JMFC, Madikeri. 2. The petitioner before this Court is the defendant in the suit. The respondent herein had filed O.S.No.81/2024 for permanent injunction. It is the case of the plaintiff that the land in Sy.No.1/2C measuring 1.57 acres situated at Nidugane Village, Madikeri Taluk was delivered to him in Execution Case No.10/2020 and he is in possession of the said land. It is the case that the defendant is a stranger to the land and on 18.08.2024, the defendant threatened the plaintiff that he would dispossess him. Therefore, the plaintiff had filed O.S.No.81/2024 for a decree of permanent injunction restraining the defendant from interfering with the peaceful possession. 3. The petitioner/defendant filed a written statement stating that he does not know whether the suit schedule property was item No.3 in the delivery warrant in Ex.10/2020. - 3 - HC-KAR NC: 2026:KHC:28195 WP No. 35735 of 2025 He is not a party to the said execution petition and also denied that the plaintiff is in exclusive possession of the suit schedule property. It is also denied that the suit schedule property was delivered to the plaintiff in Ex.10/2020. The defendant's case is that he is cultivating 1.50 acres of government property in Sy.No.1/2D of Nidugane Village. He has applied for regularization of the property, and the same was granted to him by the saguvali chit dated 30.05.1998. The defendant raised a counter claim and sought a decree declaring adverse possession and a permanent injunction against the plaintiff. In the suit, the defendant filed an application under Order 26 Rule 9 of CPC seeking the appointment of a court commissioner to survey and identify the counter claim schedule property with the help of ADLR, Madikeri. There is a balance of area in Sy.No.1/2C, crops and plants are grown therein, and the said property is fenced. The Commissioner is also sought to note the nature and type of plants and crops on the eastern side of the counterclaim schedule property. 4. The trial Court, by its order dated 21.03.2025, had rejected I.A.No.6. While rejecting the application, the trial - 4 - HC-KAR NC: 2026:KHC:28195 WP No. 35735 of 2025 Court observed that when it is necessary to measure the property, demarcate the boundaries, and correct the extent of the properties, a Commissioner should be appointed as per the claims made by the parties. But in the present case, no such circumstances arise to appoint a Commissioner at this stage. The trial Court observed that, on perusal of the record, it is clear that after the filing of the present suit and hearing on the plaintiff's application for an interim injunction against the defendant, the defendant filed the present application seeking an injunction against the plaintiff, along with a counterclaim in respect of the suit schedule property. To support the defendant's contention, no iota of documents was produced before the trial Court in respect of the counterclaim schedule property. The defendant's application does not assign any specific reasons for the appointment of a Commissioner in this case. If the application of the defendant is allowed, it is nothing but amounts to the collection of evidence. Accordingly, the trial Court rejected the application. Aggrieved thereby, the defendant is before this Court. - 5 - HC-KAR NC: 2026:KHC:28195 WP No. 35735 of 2025 5. Learned counsel appearing for the petitioner/defendant submits that the trial Court had passed the order hastily without appreciating the facts. Hence, the order is liable to be set aside. It is submitted that the rejection of the application for appointment of commissioner to survey and measure the property is erroneous. It is submitted that without even referring to the facts pleaded in the written statement, the trial Court had rejected the application erroneously. It is stated that the trial Court had failed to appreciate the law laid down with regard to the appointment of the commissioner in the case of demarcation of the boundaries and the identity of the suit schedule property. It is submitted that in the judgment of the Co-ordinate Bench of this Court in case of Shadaksharappa Vs. Kumari Vijayalaxmi and others1, the guiding factor is whether the report is necessary for elucidating matters in dispute. If both parties claim to be in possession of the disputed property, the local inspection by the Commissioner cannot be ordered to ascertain the possession. The question of possession is to be decided by the Court. However, if one party alleges encroachment by another and another party denies 1 ILR 2023 KAR 3983 - 6 - HC-KAR NC: 2026:KHC:28195 WP No. 35735 of 2025 such allegation, the Commissioner can be appointed. It is submitted that the defendant has pleaded possession of a portion of the property. Therefore, it is necessary to identify the lands claimed by the defendant by survey of the property. Learned counsel had relied on paragraph Nos.21 and 22 of the judgment in Shadaksharappa’s case referred supra which reads thus: “21. Having examined the provisions referred to above and given the fact that Order XXVI of the Civil Procedure Code is often invoked in the Trial Court, this Court is of the view, broadly speaking in the following cases, the appointment of an appropriate Commissioner as provided under Order XXVI of the Code is desirable. (i) The dispute relating to the easement of air, light, pathway, road, watercourse, etc. (ii) The dispute relating to the boundary, encroachment; (iii) The dispute relating to forgery; (iv) The dispute relating to the existence or otherwise of a stream, pond, drainage, watercourse, road, pathway, pollution, or nuisance. 22. The examples given above are not exhaustive but merely illustrative. The guidelines in this order should not be construed as having exhaustively listed the cases in which the Commissioner can be appointed. Nor the observations should be construed as having diluted or expanded the discretion vested with the Trial Court in such matters.” 6. Relying on this judgment, it is submitted that the trial Court had passed an order without appreciating the law to the facts of the case. - 7 - HC-KAR NC: 2026:KHC:28195 WP No. 35735 of 2025 7. Learned counsel appearing for the respondent/plaintiff submits that the defendant had filed a counter claim seeking injunction. At this juncture, the appointment of a commissioner is nothing but collecting the evidence. It is submitted that after adducing the necessary evidence, if it is still necessary, the petitioner can seek appointment of the advocate commissioner. But, at the threshold, the petitioner cannot file an application. The parties have to read through their case by adducing the necessary evidence. The trial Court had rightly held that at this stage, the application cannot be allowed and rejected the application and there are no grounds to interfere. 8. Having heard the learned counsels on either side, perused the entire material on record. The plaintiff had filed the suit for permanent injunction. In that, the defendant has filed a counter claim. The plaintiff has filed the suit seeking injunction and the defendant by way of instant I.A. sought for appointment of an advocate commissioner to survey the land. The trial Court had rightly rejected the application holding that it amounts to collection of the evidence. The petitioner has relied on the judgment of the Co-ordinate bench of this Court in - 8 - HC-KAR NC: 2026:KHC:28195 WP No. 35735 of 2025 Shadaksharappa’s case referred supra, but it is not applicable to the facts of this case. At this juncture, it is not the time where the Court can appoint the advocate commissioner and it virtually amounts to collection of the evidence. In that view of the matter, this Court do not find any reasons to interfere. Hence, this Court is passing the following: ORDER i. Accordingly, the writ petition is dismissed. ii. However, this will not preclude the defendant from coming up with an application at an appropriate stage, seeking appointment of the surveyor and the trial Court shall decide the same in accordance with law. iii. All I.As. in this petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 3 Sl No.: 12