The High Court
Case Details
- 1 - NC: 2025:KHC:24425 W.P. No.50948/2019 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.50948/2019 (GM-CPC) Digitally signed by RUPA V Location: High Court of karnataka BETWEEN:
Legal Reasoning
SRI. M. GOPALGOWDA S/O LATE MUDDEGOWDA AGED ABOUT 71 YEARS OCCUPATION: AGRICULTURE R/AT. MAREBYLU G. AGRAHARA VILLAGE GONIBEEDU HOBLI, MUDAGERE TALUK CHIKKAMAGALURU DISTRICT - 577113. (BY SRI. NARASIMHA MURTHY G.V. ADV.,) AND: 1. SRI. V.G. SIDDHARTH. SINCE DEAD HIS LRS. 1(a) SMT. MALAVIKA W/O LATE V.G. SIDDHARTH AGED ABOUT 51 YEARS. 1(b) AMARTHYA S/O LATE V.G. SIDDHARTH AGED ABOUT 25 YEARS. 1(c) ESHAN S/O LATE V.G. SIDDHARTH AGED ABOUT 23 YEARS. …PETITIONER OWNERS OF ACB ESTATE CHANDRAPURA, GONIBEEDU HOBLI MUDAGERE TALUK CHIKKAMAGALURU DISTRICT-577113. (BY SMT. USHA S. NAIR, ADV., FOR SRI. MAHESH A.S. ADV., FOR R1 (a to c)) …RESPONDENTS - 2 - NC: 2025:KHC:24425 W.P. No.50948/2019 HC-KAR THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 22.07.2019 PASSED BY THE HON'BLE PRINCIPAL CIVIL JUDGE AND JMFC AT MADAGERE IN O.S.NO.11/2017 AT ANNEXURE- E THE APPLICATION UNDER ORDER 26 RULE 9 OF CPC TO APPOINT THE SURVEY COMMISSIONER TO IDENTIFY AND DEMARCATE THE SUIT SCHEDULE PROPERTY AND DEFENDANT PROPERTY AS THE COMMISSION IS NECESSARY IN ORDER TO GIVE PROPER REPORT TO THE COURT, AS PRAYED IN THE APPLICATION. THE SUIT SCHEDULE PROPERTY BEARING SY.NO.1/P4 IN EXTENT OF 2 ACRE COFFEE PLANTATION, SITUATED AT CHANDRAPURA VILLAGE, GONIBEEDU HOBLI, MUDAGERE TALUK AND CHIKKAMAGALUR DIST & 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 petition is filed seeking following reliefs: "a) This Hon'ble court may kindly set aside the order dated 22/07/2019 passed by the Hon'ble Principal Civil Judge and JMFC at Mudagere in O.S.No.11/2017 at Annexure- E, the application under order 26 Rule 9 of C.P.C. to appoint the Survey commissioner to identify and demarcate the suit schedule property and defendant property as the commission is necessary in order to give proper report to the court, as prayed in the application. The suit schedule property bearing in extent of 2 acre Coffee Sy.No.1/P4 plantation, situated at Chandrapura Village, Gonibeedu Hobli, Mudagere Taluk and Chikkamagalur Dist." 2. Sri.Narasimha Murthy G.V., learned counsel appearing for the petitioner submits that the petitioner - 3 - NC: 2025:KHC:24425 W.P. No.50948/2019 HC-KAR filed a suit against the respondents herein for permanent injunction, restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. It is submitted that the father of the petitioner has been granted 2 acres of land in Sy.No.1/P4 at Chandrapura Village, Gonibeedu Hobli, Mudagere Taluk and Chikkamagalur District. It is submitted that the specific averment is made in the plaint that the respondents/defendants are trying to interfere with the property of the petitioner, as their property has never been measured, thinking that the property granted to the father of the petitioner is the property that belongs to the defendants. Hence, it is necessary to measure the said extent of the property owned by the respondents and thereafter, the issue can be resolved. Hence, he has filed an application for appointment of the Court Commissioner to measure his suit schedule property and the defendants' property, which has been rejected by the trial Court. - 4 - NC: 2025:KHC:24425 W.P. No.50948/2019 HC-KAR Hence, he seeks to allow the petition by setting aside the impugned order. 3. Per contra, Smt.Usha S. Nair, learned counsel appearing on behalf of Sri.Mahesh A.S., learned counsel for respondent Nos.1(a) to 1(c) supports the impugned order of the trial Court and submits that the petitioner has not averred any reason whatsoever in his affidavit accompanying the application seeking for the appointment of the Court Commissioner. It is submitted that the trial Court has rightly come to conclusion that the petitioner has to prove his case based on the pleading and material
Decision
on record. Hence, he seeks to dismiss the writ petition. 4. I have heard the arguments of the learned counsel for the petitioner, the learned counsel the respondents and meticulously perused the material available on record. 5. Petitioner has filed a suit in O.S.No.11/2017 against one Sri.V.G.Siddharth and now, it is being - 5 - NC: 2025:KHC:24425 W.P. No.50948/2019 HC-KAR represented by respondent Nos.1(a) to 1(c). The averments in paragraph No.3 of the plaint indicate that the petitioner's father has been granted land by the State Government to an extent of 2 acres in Sy.No.1/P4 at Chandrapura Village, Gonibeedu Hobli, Mudagere Taluk, Chikkamagalur District and based on the saguvali chit he is in possession and enjoyment of the suit schedule property. However, the respondents are interfering with the property and tried to make an attempt to harvest the coffee grown by the petitioner. The case of the petitioner is that after conclusion of the trial, an application under Order XXVI Rule 9 of CPC was filed seeking appointment of the Court Commissioner to ascertain the factual aspect with regard to the total extent owned and possessed by the petitioner and the respondents. However, the trial Court rejected the same. The affidavit accompanying the application at paragraph No.3 indicates that the petitioner is seeking to appoint a Court Commissioner to measure his suit schedule property and the defendants property to - 6 - NC: 2025:KHC:24425 W.P. No.50948/2019 HC-KAR identify and demarcate the boundaries and fix the boundaries. The said prayer has been rightly rejected by the trial Court. Though reason is assigned that the petitioner is required to prove the case and the application is filed at the fag end of the proceedings, in my considered view, the application filed by the petitioner is bereft of details. The reason as to why the survey is required to be conducted by the Court Commissioner is not forthcoming from the application. Hence, I do not find any error in the finding recorded by the trial Court calling for interference in the present petition. Accordingly, the writ petition is dismissed as devoid of merits. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 38