- 1 - HC-KAR CNR: KAHC010215902020 NC: 2026:KHC:46082 WP No. 10887 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 10887 OF 2020 (GM-CPC) BETWEEN: 1. SRI C K MASOOD AHMED S/O LATE ABDUL JABBAR, AGED ABOUT 55 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 2. SRI C K MUSTAQ AHMED S/O LATE ABDUL JABBAR, AGED ABOUT 52 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 3. SMT FAREEDA BANU W/O ABDUL RASHEED, AGED ABOUT 50 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 4. SMT ABIDA UNNISA W/O RIYASUDDIN RATTEHALLY, AGED ABOUT 48 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 Digitally signed by ANNAPURNA G Location: High Court of Karnataka - 2 - HC-KAR CNR: KAHC010215902020 NC: 2026:KHC:46082 WP No. 10887 of 2020 5. SMT ZAIDUNNISA W/O ALICHANDHARI, AGED ABOUT 46 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 6. SRI SAJIDUNNISA W/O MAQSOOD AHMED, AGED ABOUT 43 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 7. SRI C K RIYAZ AHMED S/O LATE ABDUL JABBAR, AGED ABOUT 40 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 …PETITIONERS (BY SMT.VASUNDARA.T.P., ADVOCATE FOR SRI. SIDDAMALLAPPA P M., ADVOCATE) AND: 1. 1(a) ABDUL SATTAR SAB S/O LATE ABDUL RAZAK SAB, AGED ABOUT 40 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 SINCE DEAD BY HIS LRS SRI. ZABIULLA S/O LATE ABDUL SATTAR SAB AGED ABOUT 53 YEARS, - 3 - HC-KAR CNR: KAHC010215902020 NC: 2026:KHC:46082 WP No. 10887 of 2020 1(b) 1(c) 1(e) 1(f) R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213. SMT. SHAKEELA BANU D/O LATE ABUDUL SATTAR SAB, AGED ABOUT 50 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 SMT. ASMA BANU D/O LATE ABUDUL SATTAR SAB, AGED ABOUT 47 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213 SRI SHAFIULLA, S/O LATE ABUDUL SATTAR SAB, AGED ABOUT 44 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213. SMT. NASEEM BANU, S/O LATE ABUDUL SATTAR SAB, AGED ABOUT 47 YEARS, R/AT NOORANI MASJID ROAD, CHANNAGIRI TOWN, DAVANAGERE DISTRICT-577213. ...RESPONDENTS (BY SRI. GURUPRASAD HEGDE, ADVOCATE FOR SRI S.V.PRAKASH, ADVOCATE) THIS WP FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 19.06.2020 PASSED IN O.S.NO.217/2014 BY THE - 4 - HC-KAR CNR: KAHC010215902020 NC: 2026:KHC:46082 WP No. 10887 of 2020 LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI AS PER ANNEXURE-F AND ORDER TO ALLOW THE APPLICATION I.A.NO.11 UNDER ORDER 26 RULE 9 READ WITH SECTION 151 OF CODE OF CIVIL PROCEDURE, ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging order dated 19.06.2020 on I.A.No.11 passed in O.S.No.217/2014 by the Principal Civil Judge and JMFC, Channagiri. 2. Heard Smt.Vasundara.T.P., learned counsel appearing for Sri.Siddamallappa.P.M., learned counsel for the petitioners and Sri.Guruprasad Hegde, learned counsel appearing for Sri.S.V.Prakash, learned counsel for the respondents and perused the material on record. 3. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. - 5 - HC-KAR CNR: KAHC010215902020 NC: 2026:KHC:46082 WP No. 10887 of 2020 4. Petitioner had filed a suit in O.S.No.217/2014 seeking prayer to pass a judgment and decree against the defendant to declare that the plaintiff has got the right to use 'B' schedule passage as a right of easement of necessity for the purpose of repair and white-wash the eastern wall of 'A' schedule house belonging to the plaintiff and also to have free air and light to his house and also for the relief of permanent injunction against the defendant. 5. In the said suit, written statement has been filed denying the plaint averments. 6. The parties led the evidence. Thereafter, the plaintiff filed an application under Order 26 Rule 9 r/w Section 151 of the Code of Civil Procedure seeking prayer to appoint a Court Commissioner, i.e., Assistant Executive Engineer, Channagiri to visit the suit schedule property and to measure the property of the plaintiff and defendant and prepare a sketch and report the same to the Court. The said application was accompanied by an affidavit. The - 6 - HC-KAR CNR: KAHC010215902020 NC: 2026:KHC:46082 WP No. 10887 of 2020 application was opposed by the defendant. The Trial Court, vide the impugned order dated 19.06.2020 rejected the application, mainly on the ground that the assertion made in the plaint is required to be proved by the plaintiff and the entire burden is on the plaintiff to prove the right over the schedule 'B' property. 7. It is to be noticed that the suit in question is for declaration that the plaintiff has right to use 'B' schedule property as a right of easement of necessity and the said right is required to be established by the plaintiff by adducing the evidence. The affidavit accompanying the application seeking appointment of Court Commissioner does not indicate the reason as to why the local inspection is necessary and what actual factual dispute between the parties is required to be ascertained by the Commissioner. In the absence of any such averments, the Trial Court taking note of the fact that the suit is for declaration of right of easement and burden on plaintiff to prove the same and proceeded to reject the application. I do not - 7 - HC-KAR CNR: KAHC010215902020 NC: 2026:KHC:46082 WP No. 10887 of 2020 find any good ground to interfere with the impugned order. The writ petition is devoid of merits and the same is rejected. Sd/- (VIJAYKUMAR A. PATIL) JUDGE DH List No.: 1 Sl No.: 16