- 1 - HC-KAR NC: 2026:KHC:33001 WP No. 5584 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 5584 OF 2021 (GM-CPC) BETWEEN: 1. SRI. VIJAYAKUMAR KURLE, S/O LATE B.C. KURLE AGED ABOUT 61 YEARS OCC: RETIRED CHIEF ENGINEER (ITI) R/A NO.27, 2ND CROSS, 3RD MAIN BDA LAYOUT, VASANTHAPURA BANASHANKARI 5TH STAGE BENGALURU – 560 061 …PETITIONER (BY SRI. T.H. AVIN, ADVOCATE) AND: 1. SRI. MANOHAR RAJU S/O LATE RAGHAVARAJU, AGED ABOUT 64 YEARS, R/O NO.2-18/8, HOPSAPALYA ROAD, MANGAMMANA PALYA BENGALURU – 560 068 2. SMT. AMRUTHA KUMARI, W/O K. MANOHAR RAJU AGED ABOUT 62 YEARS, R/O NO.2-18/8, HOPSAPALYA ROAD, MANGAMMANA PALYA, BENGALURU – 560 068 3. THE SECRETARY, M/S ITI EMPLOYEES HOUSING Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:33001 WP No. 5584 of 2021 CO-OPERATIVE SOCIETY LTD., DOORVANI NAGAR, BENGALURU – 560 016 4. THE PRESIDENT, ITI EMPLOYEES HOUSING CO-OPERATIVE SOCIETY LTD., DOORVANI NAGAR, BENGALURU – 560 016 …RESPONDENTS (V/O DATED 18/09/2025 NOTICE TO R1 & R2 ARE HELD SUFFICIENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 10.02.2021 PASSED BY THE LEARNED XXIV ADDL CITY CIVIL JUDGE, BENGALURU (CCH-28), ON INTERLOCUTORY APPLICATION UNDER ORDER XXVI RULE 9 VIDE ANNX-A AND CONSEQUENTLY TO ALLOW THE INTERLOCUTORY APPLICATION FILED BY THE PETITIONER BEFORE THE TRIAL COURT, UNDER ORDER 26 RULE 9 OF CODE OF CIVIL PROCEDURE. AND ETC., THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, 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 10.02.2021 passed on IA.No.20 in OS.No.460/2013 by the XIV Additional City Civil Judge, Bengaluru, (CCH-28) (for short 'the trial Court'). - 3 - HC-KAR NC: 2026:KHC:33001 WP No. 5584 of 2021 2. Sri.T.H.Avin, learned counsel appearing for the petitioner submits that the petitioner has filed a suit for declaration, mandatory injunction and permanent injunction against the defendants contending that the defendants encroached 'B' schedule property of the plaintiff. It is submitted that the parties have adduced the evidence. Thereafter, an application for appointment of Court Commissioner was filed seeking to survey the disputed land and submit the report. The said application came to be erroneously dismissed by the trial Court on the ground that the evidence has been adduced by the parties and vague prayer is made in the application seeking to conduct survey of various extent which would protract the proceedings. It is further submitted that unless an independent Commissioner conducts the survey and submits the report with regard to the assertion made by the plaintiff in the plaint, which has been denied by the defendant, it would be difficult for the plaintiff to prove the encroachment by oral and documentary evidence. Hence, - 4 - HC-KAR NC: 2026:KHC:33001 WP No. 5584 of 2021 it is necessary to appoint the Court Commissioner. Accordingly, he seeks to allow the petition. 3. Despite service of notice, there is no representation for the respondents. 4. I have heard the arguments of the learned counsel for the petitioner and meticulously perused the material available on record. 5. The petitioner filed OS.No.460/2013 against the respondents seeking reliefs of declaration that the plaintiff is the absolute owner of the suit scheduled 'B' property; a mandatory injunction against defendant Nos.1 and 2 to remove the shed put up illegally on the suit schedule 'B' property and to hand over the possession thereof to the plaintiff; and a permanent injunction restraining defendant Nos.1 and 2 from interfering with the peaceful possession and enjoyment of suit schedule 'A' property of the plaintiff. In the said suit, defendant No.1 filed a written statement. The trial Court framed the issues and evidence was - 5 - HC-KAR NC: 2026:KHC:33001 WP No. 5584 of 2021 recorded. Thereafter, the plaintiff filed an application under Order XXVI Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') seeking to appoint Assistant Director of Land Records, Bengaluru South Taluk, as a Court Commissioner to measure the land in Sy.Nos.18/6A, 18/6B, 18/7A, 18/7B and 18/8. The trial Court considering the rival submissions dismissed the application on the ground that the application seeking appointment of Court Commissioner is a vague and parties have already adduced the evidence. 6. It is required to be noticed that the plaintiff has made a specific assertion in the plaint that he purchased the suit schedule ‘A’ and ‘B’ properties from defendant No.4-Society. It is further specifically asserted that defendant Nos.1 and 2, claiming to be owners of the adjacent property, have encroached an extent of 740 sq.ft in the property of the plaintiff, which is described as suit schedule ‘B’ property. Defendant Nos.1 and 2 have categorically denied the said assertion both in their written - 6 - HC-KAR NC: 2026:KHC:33001 WP No. 5584 of 2021 statement as well as in their objections to the application seeking appointment of a Court Commissioner. The defendants have specifically contended that they purchased 4 acres of land under a registered sale deed and they are the owners. They further contended that the Deputy Commissioner claiming that 1 acre in Sy.No.18/8 of Yellunkunte Village is an ‘A’ kharab land, tried to take over the same, which was assailed by defendant Nos.1 and 2 in Revision Petition No.5/2009. In the said proceedings, number of members of the ITI Society have impleaded and contended that they require a road in the aforesaid survey number. The defendant Nos.1 and 2 specifically denied the assertion of the plaintiff that they have encroached the schedule ‘B’ property. 7. When there is a specific assertion of encroachment raised by the plaintiff and the denial by defendant Nos.1 and 2, in my considered view the oral and documentary evidence placed by the plaintiff would not be sufficient to ascertain the factual matrix with regard to the - 7 - HC-KAR NC: 2026:KHC:33001 WP No. 5584 of 2021 alleged encroachment as claimed by the plaintiff. Hence, it would be appropriate to appoint an independent Commissioner to inspect the suit properties claimed in the application and submit a report, which would aid the trial Court in deciding the dispute between the parties. 8. At this stage, the learned counsel for the petitioner fairly submits that ends of justice would be met if the Court Commissioner measures the suit schedule ‘A’ and ‘B’ properties as well as Sy.Nos.18/7 and 18/8. His submission is placed on record. In view of the preceding analysis, I am of the view that the Court Commissioner's report would aid the trial Court in answering the assertion of the plaintiff with regard to the encroachment. Hence, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 10.02.2021 passed on IA.No.20 in OS.No.460/2013 by the XIV Additional City Civil Judge, - 8 - HC-KAR NC: 2026:KHC:33001 WP No. 5584 of 2021 Bengaluru, (CCH-28) is hereby set aside. Consequently, the plaintiff's application in IA.No.20 under Order XXVI Rule No.9 of the CPC is allowed. iii. The trial Court shall appoint the Court Commissioner as sought in the application to measure the property in Sy.Nos.18/7 and 18/8 as well as suit schedule properties and the trial Court shall stipulate the time limit for the Court Commissioner for submission of the report. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 20