- 1 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7THDAY OF JANUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 4541 OF 2021 (GM-CPC) BETWEEN: 1. MRS. VIOLET SEQUERIA AGED ABOUT 70 YEARS, W/O LATE VICTOR SEQUERIA, R/AT V.SEQUEIRA COMPOUND, MANNAGUDDA, MANGALURU, D.K.DISTRICT-575003. 2. MS. SARITHA SEQUEIRA AGED ABOUT 42 YEARS, D/O LATE VICTOR SEQUERIA, R/AT V.SEQUEIRA COMPOUND, MANNAGUDDA, MANGALURU, D.K.DISTRICT-575003. …PETITIONERS (BY SRI. SHIVARAM BHAT., ADVOCATE) AND: 1. MRS. SRISTI ARYA VENTURES HAVING ITS OFFICE AT NO.205, INLAND ORNATE, NAVABHARATH CIRCLE, KODIALBAIL, MANGALURU-575003, REPRESENTED LBY ITS PARTNER, MR.SHWETANG PRADEEP SHAH, S/O PRADEEP JAGJIVANDAS SHAH, - 2 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 2. MR. SHWETANG PRADEEP SHAH AGED ABOUT 41 YEARS, S/O PRADEEP JAGJIVANDAS SHAH, INLAND ORNATE, NAVABHARATH CIRCLE, KODIALBAIL, MANGALURU-575003. 3. MR. VENKATESH RAO.P AGED ABOUT 62 YEARS, S/O LATE DR. P.SRINIVAS RAO, R/AT NO 501, ADITYA APARTMENT, NEHRU AVENUE ROAD, LALBAGH, MANGALURU-575003. …RESPONDENTS (BY MS. SIRI.V., ADVOCATE FOR SRI. VISHWANATH.R., ADVOCATE FOR R3) THIS WP FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TOQUASH THE ORDER DATED 03.02.2021 PASSED ON I.A.NO.IX FILED IN O.S.NO.386/2013 ON THE FILE OF V ADDITIONAL CJ AND JMFC, MANGALURU, DAKSHINA KANNADA VIDE ANNEXURE-A. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL ORDER 1. The present petition has been filed under Articles 226 and 227 of the Constitution of India, 1950, seeking to challenge an order dated 03.02.2021 in O.S.No.386/2013 passed by the - 3 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 learned V Additional Civil Judge and JMFC, Mangaluru (hereinafter referred to as the “Impugned Order”). By the Impugned Order, an application under Order 26 Rule 9 read with Section 151 of the CPC, 1908, has been dismissed by the learned Trial Court by giving a finding that it is not the duty of the Court to gather the evidence for the petitioners. 2. Learned counsel for the petitioners/plaintiffs submits that although the application was filed earlier, it was taken up at the final hearing stage and that the petitioners/plaintiffs have also raised a challenge to the ownership of the respondents/defendants of the suit schedule property in these proceedings. Thus it is necessary for the Court Commissioner to be appointed. In addition, it is contended that the building as constructed on the suit Schedule property is not in accordance with the sanctioned plan. 3. The learned counsel for the respondents/defendants on the other hand submits that the petitioners had previously filed a writ petition before this Court being W.P.No.19052/2014. By an order dated 12.01.2022, a Co-ordinate Bench of this Court had recorded in its order that a revised building plan had - 4 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 been submitted by the respondent No.3 (Shri P.Venkatesh Rao) to the statutory authorities and subsequently the deviations in the building have already been regularized. 4. It is contended by the learned counsel for the petitioners/plaintiffs that the review petition filed against this order of 12.01.2022 is currently pending. However, he does not dispute the fact that the revised building plan was submitted by the respondent No.3. 5. Learned counsel for the petitioners/plaintiffs further submits that respondents No.1 and 2 are the builders. The report of the registry is that postal shara dated 23.03.2021 shows that the respondent Nos.1 and 2 have not been served. However, the petition was argued by the respondent No.3 who is the main contesting party and the owner of the adjacent premises. Hence the service on respondent Nos.1 and 2 is not deemed to be requisite. 6. This Court on 04.03.2021 had directed that the Trial Court proceedings shall remain stayed. The matter has been pending since then. - 5 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 7. Briefly the facts of the case are that a suit for permanent prohibitory injunction was filed by the petitioners/plaintiffs restraining the respondents/defendants from putting up any construction on the plaint ‘B’ schedule property without leaving sufficient setbacks. In addition, a further prayer was sought restraining the respondents/defendants from causing any damage to the plaint ‘A’ schedule property. It is a case of the petitioners/plaintiffs that the ‘A’ schedule property belongs to the husband of the first plaintiff and father of the second plaintiff, while the ‘B’ schedule property along with other properties originally belonged to one Sri Kambala Subbarao, who had leased them on mulagani basis in favour of two persons including the husband of the first petitioner/first plaintiff. It is further contended by the petitioners/plaintiffs that the building licence was not obtained correctly and the respondents/defendants have done illegal construction on the suit schedule ‘B’ property. It is apposite to set out the prayers in the plaint which read as follows. “a) For a permanent prohibitory injunction restraining the defendants No.1 and 2 from putting up any construction in the plaint ‘B’ schedule property without leaving sufficient setbacks as provided in the building License No.E9/BA 74/2011-12 dated 22.03.2012, and - 6 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 thereby cause obstruction for the free flow of air and light into the plain ‘A’ schedule property. (This relief is valued at Rs.1,000/-) b) For a permanent prohibitory injunction restraining the defendants No.1 and 2 from causing any damage to the plaint ‘A’ schedule property. c) For a permanent prohibitory injunction restraining the defendants No.1 and 2 from lifting any water from borewell situated in the plaint ‘B’ schedule property. (This relief is valued at Rs.1,000/-) d) For a mandatory injunction directing the defendants No.1 and 2 to close the borewell situated in the plaint ‘B’ schedule property. (This relief is valued at Rs.1,000/-) e) For a mandatory injunction directing the defendants to make proper arrangement in the plaint ‘B’ schedule property for the free flow of the rain water flown from the plaint ‘A’ schedule property. (This relief is valued at Rs.1,000/-) f) Directing the defendants to pay the cost of the suit. g) For such other and further relief as this Hon’ble court deem it fit to grant under the circumstances of the case.” 8. As can be seen from the above, the suit does not contain a prayer for declaration of title and it only contains prayer for permanent prohibitory injunction in respect of the property of the respondent No.3 (schedule ‘B’ property). Undisputably, at present, the petitioners/plaintiffs are only in possession of the schedule ‘A’ property while the respondent No.3 is in - 7 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 possession of the suit Schedule ‘B’ property. The suit properties are described as below; “A Schedule (Description of the Property) Immovable property situated at 90A. Boloor a village of Mangalore Taluk, within the registration Sub-District of Mangalore City and within the limits of Mangalore city Corporation, and comprised in; Item No. Survey No. Extent A - C 1) 686/1 0-20.00 2) 686/1 0-11.00 ------------- Total - 0-31.00 ------------- Both items forms a compact block, with buildings bearing door number, 6-16-620 to 6-16-622, 622A and 6-16-616 to 6-16-619, with all other mamool easementary rights of water, etc. appurtemant thereto Boundaries of item No.1 North : Portion of the same survey number South : Portion of ‘B’ schedule property and other property in the same survey Number East : Item No.2 property West : Survey Line. Boundaries of item No.2: North : Portion of the same survey number South : Portion of ‘B’ schedule property East : Municipal Road West : Item No.1 property ‘B’ Schedule (Description of Property) - 8 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 Immovable property situated at 90A, Boloor A Village of Mangalore Taluk, within the registration Sub- district of Mangalore City and within the limits of Mangalore Corporation, and comprised in Survey No. Extent A- C 686/1 0 - 20 With all other manual easemetnary rights of way, water etc. appurtenant thereto Boundaries North : Plaint ‘A’ schedule property South : Gundu Rao Road East : Municipal Road West : Portion of the same survey Number” 9. As stated above, the learned Trial Court after examining the application filed, has given a finding that the Court cannot appoint a commissioner to collect evidence. The evidence has to be produced by the petitioners/plaintiffs. It is apposite to set out paragraph 9 of the Impugned Order of the Trial Court below: “9. Since the application was filed at the premature stage. This court has kept this application till conclusion of the trial. Now the trial has been concluded. On perusal of the points sought to be noted by the commissioner most of the points are pertaining to the set back and digging of land, bore well and electricity connection in the plaint 'B' schedule property also reporting the electricity connection connected to the plaint 'B' schedule properties using for the purpose of - 9 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 lifting water from the bore well for their construction of the building. All these points are need to be proved by the plaintiffs on their legs. It is settled preposition of law that, the court cannot appoint court commissioner to collect the evidence. If at all the plaintiffs really wants to prove the case they have to prove the same by producing cogent material evidences before this court. However, most of the facts are elicited during course of cross-examination of D.W.1. The cross-examination of D.W.1 was done at length. There are sufficient materials available before this court to come to the conclusion in this case. It is opinion of this that. appointment of court commissioner to note the points as stated in the application will not get any ald to disposal of this case. futile exercise from court It is again a the Therefore, the burden is on court the plaintiffs to prove their case by adducing material evidences. Under such circumstances, the appointment of court commissioner does not arise. Hence. In the touchstone of the reasons assigned above, this court answer the above point No.1 in the Negative. 10. Concededly, as can be seen from the prayers in the plaint, the grievance of the petitioners/plaintiffs is only qua deviations in the sanctioned plan and illegal digging of bore well etc. The order dated 12.01.2022 passed by a co-ordinate bench of this Court in W.P.No.19052/2014 sets out the fact (which is not disputed by either party) that the a modified building plan qua deviations with endorsements have already been submitted. 11. In view of these facts and given the prayers in the plaint, this Court finds no infirmity with the Impugned Order. The - 10 - HC-KAR NC: 2026:KHC:668 WP No. 4541 of 2021 petition is accordingly dismissed. It is made clear that the order passed today does not preclude the petitioners/plaintiffs from raising all contentions before the Trial Court in accordance with law. 12. All pending applications stand closed. (TARA VITASTA GANJU) JUDGE YN List No.: 1 Sl No.: 9 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA