- 1 - HC-KAR NC: 2026:KHC:18945 WP No. 15320 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 15320 OF 2025 (GM-CPC) BETWEEN: 1. SMT DHANDIGAMMA WIFE OF LATE PATHAIAH AGED ABOUT 86 YEARS 2. MAHALINGAIAH S/O LATE PATHAIAH AGED ABOUT 69 YEARS 3. DANDIGAIAH S/O LATE PATHAIAH AGED ABOUT 67 YEARS 4. SANNAPPA @ SANNAIAH S/O LATE PATHAIAH AGED ABOUT 65 YEARS 5. RAJANNA S/O LATE PATHAIAH AGED ABOUT 61 YEARS 6. SHIVANNA K P S/O LATE PATHAIAH AGED ABOUT 44 YEARS 7. NINGARAJU K.P. S/O LATE PATHAIAH AGED ABOUT 41 YEARS ALL ARE R/AT KONDAPURA VILLAGE GALAGA MAJARE, KASABA HOBLI Digitally signed by DHANALAKSHMI MURTHY Location: HIGH COURTOF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:18945 WP No. 15320 of 2025 GUBBI TALUK TUMAKURU DISTRICT- 572 216. &PETITIONERS (BY SRI. SOMASHEKHARAIAH.R.P., ADVOCATE) AND: 1. VENKATESHAIAH S/O LATE MUNIVENKATAPPA AGED ABOUT 61 YEARS CHRISTIAN COLONY, GUBBI TALUK TUMAKURU DISTRICT- 572 216. 2. SMT. VARALAKSHMAMMA W/O. LATE VENKATAPPA AGED ABOUT 66 YEARS 3. TRIVENI D/O. LATE VENKATAPPA AGED ABOUT 41 YEARS 4. MAMATHA D/O LATE VENKATAPPA AGED ABOUT 39 YEARS 5. SUJATHA D/O LATE VENKATAPPA AGED ABOUT 37 YEARS 6. GEETHA D/O LATE VENKATAPPA AGED ABOUT 35 YEARS 7. ASHWINI D/O LATE VENKATAPPA AGED ABOUT 33 YEARS 8. DIVYA D/O LATE VENKATAPPA AGED ABOUT 31 YEARS - 3 - HC-KAR NC: 2026:KHC:18945 WP No. 15320 of 2025 ALL ARE R/AT OBALLI VILLAGE BILIGERE GATE KASABA GUBBI TALUK, TUMAKURU- 572 216 &RESPONDENTS (BY SRI.S.G.HEGDE., ADVOCATE FOR C/R1 TO R8) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 29.04.2025 PASSED ON I.A. NO. XI IN OS NO.100/2023, ON THE FILE OF THE ADDL. SR. CIVIL JUDGE AND JMFC, GUBBI UNDER ANNEXURE-Z1 AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD ORAL ORDER 1. The petitioners3plaintiffs, in the present writ petition, have called in question the order dated 29.04.2025 passed by the Additional Senior Civil Judge and JMFC, Gubbi (hereinafter referred to as the <Trial Court=) on I.A. No. XI filed under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, in O.S. No. 100/2023, whereby the application seeking appointment of a Court Commissioner came to be rejected. - 4 - HC-KAR NC: 2026:KHC:18945 WP No. 15320 of 2025 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court in the original suit. 3. The plaintiffs have instituted O.S.No.100/2023 seeking the relief of declaration and injunction. Upon service of summons, the defendants entered appearance and filed their written statement. Based on the pleadings, the Trial Court framed issues and the parties have adduced their evidence. Thereafter, the plaintiffs filed I.A. No. XI under Order XXVI Rule 9 of the Code of Civil Procedure seeking appointment of a Court Commissioner. The Trial Court, by the impugned order, rejected the said application. Aggrieved thereby, the plaintiffs are before this Court. 4. Learned counsel for the petitioners3plaintiffs contends that, in an earlier round of litigation in W.P.No.31217/2024, this Court, while dismissing the writ petition on 21.11.2024, had reserved liberty to the - 5 - HC-KAR NC: 2026:KHC:18945 WP No. 15320 of 2025 plaintiffs to file an application seeking appointment of a Court Commissioner for local inspection to ascertain the existence of structures on the suit schedule property. It is contended that the defendants have constructed different houses in various portions of the suit schedule property, but the defendants have denied the same and contended that the structure exists only in part of the suit schedule property i.e. 10 guntas of land. Therefore, learned counsel for the petitioners submits that the appointment of a Court Commissioner is necessary to ascertain the factual position. 5. Per contra, learned counsel for the respondents3 defendants submits that there are no specific pleadings in the plaint regarding the existence of structures over any part or whole of the suit schedule property. It is further submitted that the defendants have admitted construction only to the extent of 10 guntas and have denied the existence of any other structures over the remaining extent of the land, which is stated to be an agricultural - 6 - HC-KAR NC: 2026:KHC:18945 WP No. 15320 of 2025 land. Hence, it is contended that the Trial Court has rightly rejected the application. 6. Heard learned counsel for the parties and perused the material on record. 7. The plaintiffs have specifically pleaded that all seven plaintiffs have constructed houses in different portions of the suit schedule property and have also produced photographs in support of their contention. The defendants, while admitting the existence of structures to the extent of 10 guntas, have denied the existence of structures over the remaining portion of the suit property. 8. In the earlier round of litigation, the plaintiffs had filed an application under Order XXVI Rule 9 of the Code of Civil Procedure seeking appointment of a Court Commissioner, which was rejected by the Trial Court. The said order was challenged before this Court in W.P.No.31217/2024. This Court, by order dated - 7 - HC-KAR NC: 2026:KHC:18945 WP No. 15320 of 2025 21.11.2024, dismissed the writ petition with the following observation at paragraph-9: <Hence, the writ petition lacks merit and same is dismissed. However, it is open for the plaintiffs to file an application seeking appointment of a Commissioner for local inspection to find out the structures that exist on the suit property before the Trial Court. If such an application is filed, the Trial Court shall consider the application in the light of the evidence adduced before it and if it feels necessary to appoint a Commissioner and proceed in accordance with law.= 9. Thus, while dismissing the earlier writ petition, this Court had expressly reserved liberty to the plaintiffs to seek appointment of a Court Commissioner for local inspection to ascertain the existence of structures on the suit schedule property. 10. In the present case, there is a clear dispute between the parties regarding the existence of structures over the suit schedule property. While the plaintiffs assert that - 8 - HC-KAR NC: 2026:KHC:18945 WP No. 15320 of 2025 structures exist in different portions of the property, the defendants admit such existence only to a limited extent. 11. In such circumstances, and in view of the liberty reserved by this Court in the earlier proceedings, this Court is of the opinion that the appointment of a Court Commissioner for local inspection would be necessary to ascertain the factual position regarding the existence of structures on the suit schedule property. 12. The Trial Court, without properly considering the aforesaid aspects and the liberty granted by this Court, has erred in rejecting the application. Appointment of a Court Commissioner would not cause any prejudice to the defendants; on the contrary, it would assist the Court in effectively adjudicating the dispute. 13. Accordingly, the following order is passed: ORDER a) The writ petition is allowed. - 9 - HC-KAR NC: 2026:KHC:18945 WP No. 15320 of 2025 b) The order dated 29.04.2025 passed by the Additional Senior Civil Judge and JMFC, Gubbi, on I.A. No. XI in O.S.No.100/2023 is hereby set aside. c) I.A. No. XI filed by the plaintiffs under Order XXVI Rule 9 of the Code of Civil Procedure is allowed. d) The Trial Court is directed to appoint a Court Commissioner to conduct local inspection of the suit schedule property and submit a report in accordance with law. Sd/- (H.T. NARENDRA PRASAD) JUDGE DM LIST NO.: 1 SL NO.: 55