- 1 - HC-KAR NC: 2026:KHC:6341 WP No. 3105 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.3105 OF 2026 (GM-CPC) BETWEEN: K P NAGARAJ S/O PUTTAPPA, AGE 63 YEARS, R/O: KUPPAGADDE HOBLI, SORABA TALUK AND SHIVAMOGGA DISTRICT-577 429. …PETITIONER (BY SRI. VASANTHA KUMAR K M., ADV.) AND: 1. VIRABHADRAPPA DEAD BY LRS SMT NAGARATHNA W/O VEERABHADRAPPA AGE 48 YEARS 2. ANUSHRI D/O VEERABHADRAPPA AGE 18 YEARS 3. SHASHIKUMAR S/O VEERABHADARAPPA AGE 15 YEARS RESPONDENT NO.2 IS MINOR AND HE WAS REPRESENTED BY HIS NATURAL GUARDIAN THE RESPONDENTS NO.1(A) TO (C) ARE MOTHER RESPONDENT NO.1(A) RESIDING AT SHIDDIHALLLI VILLAGE, Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:6341 WP No. 3105 of 2026 KAPPAGADDE HOBLI SORABA TALUK – 577 429. …RESPONDENTS THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN O.S.NO.129/2020 ON THE FILE OF CIVIL JUDGE AND J.M.F.C. AT SORABA AND TO QUASH / SET ASIDE THE ORDER DATED 19.11.2025 MADE ON I.A.NO.3 IN O.S.NO.129/2020 PASSED BY THE CIVIL JUDGE AND J.M.F.C. AT SORABA AS THE SAME, BEING ARBITRARY, ERRONEOUS AND OPPOSED TO LAW, EQUITY AND JUSTICE (ANNEXURE- E) AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by defendant No.1 is directed against the impugned order dated 19.11.2025 passed in O.S.No.129/2020 by the Civil Judge & JMFC, Sorabla, whereby I.A.No.3 filed by the respondent-plaintiff under Order XXVI Rule 9 CPC was allowed by the Trial Court by holding as under: “ORDER ON IA NO.11 UNDER ORDER XXVI RULE 9 of CPC The present application filed by the plaintiffs for appointment of court commissioner i.e., Taluk Surveyor to make inspection/ investigation of the suit schedule property - 3 - HC-KAR NC: 2026:KHC:6341 WP No. 3105 of 2026 and prepared map and fix the boundaries as per the memo of the instruction and submit report in this court. 2. This application annexed with the affidavit sworn the plaintiff No.2 stated that the plaintiffs have filed the present suit for the relief of permanent injunction against the defendant. Further it is averred that, the suit schedule property is joint in possession of plaintiffs. The grandfather of defendant purchased 2 acres of land in Sy.No.8/5 towards northern side from the grandfather of the plaintiffs Gadigeppa S/ Shivalingappa and defendant claiming excess land and cultivating in the said land. There is a boundary between the plaintiffs and defendant property and excess land claimed by the defendant and it is necessary to appropriate identification the property with referred to the document produced by the party is very much necessary by local inspection/investigation of the property under the technical hand for proper adjudication of the matter. Under these circumstances the appointment of Talk Surveyor as court commissioner for identification of the property to fixing the boundaries is very essential. If the application is not allowed, the plaintiffs will be put to loss and hardship. On these grounds, the plaintiffs prayed for allow the application. 3. Per contra, the defendant has filed the separate detailed objections and it is contended that the present suit is bare injunction suit and plaintiff has prove his case on his own strength. He cannot take assistance from the technical to prove his case. Further it is contended that there was a partition on 22.02.1952 between the plaintiffs family and as - 4 - HC-KAR NC: 2026:KHC:6341 WP No. 3105 of 2026 per the said partition in Sy.No.8 divided amongst the parties and the said partition is registered one and in the said partition, the plaintiffs father allotted 3 acres 18 guntas of land in the suit schedule property. But they are claiming 4 acre 3 guntas of land. The plaintiffs have not produced any documents to show that they are in possession of entire 4 acre 3 guntas of land. Hence, with these contentions, the defendant prays to reject the application. 4. Upon hearing arguments and perusal the material placed on record. 5. Now the following points arise for my consideration: POINTS 1) Whether the application filed by the plaintiffs are deserves to be allowed for appointment of court commissioner to decide the matter in controversy with the parties? 2) What Order? 6. My finding to the above points are as follows: Point No. 1 : In the Affirmative. Point No.2 : As per final order for the following: REASONS 7. Point No.1:- Before projecting on point No.1, it is just and necessary to narrate the gist of the case in order to proper consideration of point No.1. The plaintiffs have filed the suit against the defendant for the relief of permanent injunction on the ground that the - 5 - HC-KAR NC: 2026:KHC:6341 WP No. 3105 of 2026 suit schedule property was allotted their father, under the partition on 17.05.1990. The plaintiff has cultivating in the suit schedule property and they are absolute owner in possession of suit schedule property. But further plaintiff submits that by through oversight it was mentioned as 3 acre 18 guntas of land under the partition effected on 17.05.1990. In this regard, the plaintiff submitted the application on 08.07.2020. Further it is averred by the plaintiff that, the plaintiffs grandfather Gadigeppa S/o Shivalingappa sold 2 acres of land towards northern side in Sy. No.8/5 to the father of the defendant same has been registered before the Sub-registrar Soraba. But the present plaintiff is in possession of 4 acres 3 guntas of land. But the defendant denied the entire plaint averments and submitted that the plaintiffs father allotted 3 acres 18 guntas of land under the registered partition deed in the year 1990. The plaintiff never in possession of 4 acres 3 guntas of land and trying to encroached over the defendant property. Hence, the suit of the plaintiff is not at all maintainable. 8. In the present case already evidence of the both parties completed when the matter is set down final argument, at this stage the plaintiffs counsel filed the present application for appointment of court commissioner i.e., Taluk, Surveyor to make local inspection of the property under the technical hand for identification of the suit schedule property and fixing boundaries. 9. On the other hand, the defendant objected the same and contended that the present suit is for the relief of - 6 - HC-KAR NC: 2026:KHC:6341 WP No. 3105 of 2026 permanent injunction and the plaintiff has to prove his case by lead cogent evidence on his own strength. Further the plaintiff cannot take assistance from technical to prove his possession. The defendant admittedly in Sy.No.8/5 measuring 4 acres 3 guntas of land allotted to the plaintiffs father Basavanyappa S/ Gadigeppa. But further he contended that another partition deed was registered on 17.05.1990 and in the said partition deed by through oversight measurement 3 acres 18 guntas of land by boundaries wrongly mentioned. But actually the plaintiff is in possession of 4 acres 3 guntas of land as contended by the plaintiff same has been denied by the defendant. But the defendant not mentioned and admitted that he has purchased 2 acre of land. The defendant contended that he is in possession of 2 acres 13 guntas of land in Sy.No.8/5. On perusal the application filed by the plaintiffs shows that the plaintiffs intended to measured their property and for fixed the boundaries to the same as per the partition on 17.05.1990. If the court commissioner is appointed definitely it will not cause to the defendant. Hence, at this stage if the court commissioner is appointed for measuring the suit schedule property and defendant property and fixed the boundaries it will clenches entire dispute in existing between the both parties. Hence, it is just and proper to allow the application filed by the plaintiff is necessary to adjudicate real controversy between the parties. Hence in answer Point No.1 in Affirmative. - 7 - HC-KAR NC: 2026:KHC:6341 WP No. 3105 of 2026 10. Point No.2:- In view of the above discussion and finding to the above Point No.1, I proceed to pass following:- ORDER IA No.3 filed by the plaintiff U/O XXVI Rule 9 of CPC is hereby allowed. The commissioner i.e., Taluk Surveyor is hereby appointed as court commissioner for inspection / investigation of the suit schedule property and fixed the boundaries as per the document submitted by the parties and report to this court. Parties hereby directed to file a memo of instruction on or before 26.11.2025. For memo of instruction. Call on 26.11.2025.” 2. Heard learned counsel for the petitioner and perused the material on record. 3. As can be seen from the aforesaid averments made by the respondents in their written statement, there is clearly a serious dispute regarding location, extent, measurements, identity, boundaries, etc., of the property claimed by both sides. Under these circumstances, in the light of the principles laid down by the - 8 - HC-KAR NC: 2026:KHC:6341 WP No. 3105 of 2026 Co-ordinate Bench of Court in the case of Sri. Shadaksharappa Vs. Kumari Vijayalaxmi & others – 2023 SCC OnLine KAR 53 and the judgment of the Apex Court in the case of Rahul S.Shah vs. Jinendra Kumar Gandhi –(2021) 6 SCC 418, I am of the considered opinion that in the facts and circumstances of the instant case, appointment of a Court Commissioner is relevant and necessary for the purpose of adjudication of the issues in controversy between the parties. It is needless to state that since both parties would be entitled to file their respective memos of instructions before the Court Commissioner and also file objections to the Commissioner's Report and examine / cross-examine him, no prejudice can be said to have been caused to the respondents- defendants if the application for appointment of Court Commissioner was allowed in favour of the plaintiffs. 4. Under these circumstances, upon reconsideration, re- evaluation and re-appreciation of the entire material on record, I do not find any illegality or infirmity in the impugned order passed by the Trial Court allowing I.A.No.3 warranting interference by this Court in the present petition. - 9 - HC-KAR NC: 2026:KHC:6341 WP No. 3105 of 2026 5. In the result, I pass the following: ORDER (i) The petition is hereby disposed of without interfering with the impugned order. (ii) Liberty is reserved in favour of the parties to submit their respective memos of instructions before the Court Commissioner and also file objections, if any, to the Commissioner’s report and examine / cross-examine, if they so desire. (iii) Liberty is also reserved in favour of the parties to seek amendment of the their respective pleadings, if they so desire. (iv) All rival contentions on all aspects of the matter including the report and evidence of the Court Commissioner are kept open and no opinion is expressed on the same. Sd/- (S.R.KRISHNA KUMAR) JUDGE SV List No.: 1 Sl No.: 58