N C NANJAPPA vs K K MADAPPA SINCE DEAD BY HIS LRS SMT K M MEENAKSHI

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 9 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

WRIT PETITION NO. 4443 OF 2020 (GM-CPC)

BETWEEN:

N.C. NANJAPPA
S/O LATE N. CHENGAPPA
AGED ABOUT 58 YEARS,
R/AT ATTUR-NALLUR VILLAGE,
MATHICAD POST,
SUNTICOPPA HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 237.
…PETITIONER








(BY SRI. PRITHVIRAJ SHASTRY G, ADVOCATE FOR
SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)

AND:

K.K. MADAPPA
SINCE DEAD BY HIS LRS

1. SMT. K.M. MEENAKSHI
W/O LATE K.K. MADAPPA
MAJOR.

2. K.K. SOMAIAH
S/O LATE KALAPPA
MAJOR





Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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3. K.K. RAGHU KUMAR
S/O LATE KALAPPA
MAJOR

4. SMT. NEELAMMA
W/O LATE KADLERA KALAPPA
MAJOR

RESPONDENTS NO.1 TO 4 ARE
RESIDING AT ATTUR-NALLUR VILLAGE,
MATHICAD POST, SUNTICOPPA HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 571 237.

5. SMT. PADMAVATHI
W/O LATE KADLERA KALAPPA
MAJOR,
R/AT THANNIMANI VILLAGE,
BHAGAMANDALA POST,
MADIKERI TALUK,
KODAGU DISTRICT - 571 247.

6. SMT. LEELAVATHI
SINCE DEAD BY LRS

6(A). SUNIL
S/O LATE PERLADI MALAPPA AND LATE LEELAVATHI
AGED ABOUT 45 YEARS
R/AT GARGANDUR VILLAGE
VIA HOSTHOTA, SOMWARPET TALUK,
KODAGU DISTRICT - 571 237.

7.
SMT. HALAMMA
W/O K.C. JANARDHANA
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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MAJOR
R/AT ATTUR-NALLUR VILLAGE
SUNTICOPPA HOBLI
SOMWARPET DISTRICT - 571 237.

8.
SMT. SUSHEELA
W/O GANESH
MAJOR, PLANTATIONS
R/AT MATHICAD POST
SUNTICOPPA HOBLI,
SOMWARPET TALUK
KODAGU DISTRICT - 571 237.

9. SMT. INDIRA
W/O LAKSHMANA
MAJOR,
R/AT SRI DEVI ESTATE
GADDEHALLI POST,
SUNTICOPPA HOBLI,
SOMWARPET TALUK
KODAGU DISTRICT - 571 237.

10. SMT. TARAMANI
D/O LATE K.K. KALAPPA
MAJOR
R/AT ATTUR-NALLUR VILLAGE
MATHICAD POST
SUNTICOPPA HOBLI,
SOMWARPET TALUK
KODAGU DISTRICT - 571 237.

11. N.C. MONAPPA
S/O LATE CHENGAPPA
MAJOR
R/AT KADANDALU VILLAGE
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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SOMWARPET TALUK
KODAGU DISTRICT - 571 237,
NOW AT HOSUR, TAMIL NADU.
…RESPONDENTS
(BY SRI. RANJAN KUMAR K, ADVOCATE FOR R1 TO R3,
R7 TO R9;
VIDE ORDER DATED 29.09.2023 R2, R3, R7, R9, R10 ARE
THE LR'S OF DECEASED R4 AND R6 IS THE LR OF
DECEASED R5;
VIDE ORDER DATED 24.06.2025, NOTICE TO R11
DISPENSED WITH PROPOSED R6(A) - SUNIL SERVED;
VIDE ORDER DATED 24.09.2025, NOTICE IS HELD
SUFFICIENT IN RESPECT OF R10 - TARAMANI)

THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 03.12.2019 PASSED BY THE SENIOR CIVIL JUDGE,
SOMWARPET ON I.A.NO.19 IN O.S.42/19 PRODUCED AT
ANNEXURE-A AND I.A.NO.19 BE ALLOWED AS PRAYED FOR
AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

ORAL ORDER
C aptioned writ petition is filed by the plaintiff assailing
the order dated 03.12.2019 passed by the learned Judge on
I.A.No.19 filed under Order XXVI Rule 9 of the Code of Civil
Procedure, 1908 (for short, ‘the CPC’), in O.S.No.42/2019,
whereby the application seeking appointment of a
Commissioner for local inspection to ascertain the exact extent
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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of encroachment over the plaint ‘B’ schedule property has been
rejected.
2. Though some of the respondents, who are the principal
defendants in the suit, remain unserved, this Court is of the
view that the present petition need not be kept pending
independently on that ground. On a pointed query by this
Court, learned counsel appearing for the defendants fairly
submits that all the defendants are family members, though his
vakalath is confined to defendant Nos.2, 3, 6 and 7. Having
regard to the nature of the controversy involved and the fact
that the petition, instituted in the year 2020, has remained
pending, resulting in the proceedings before the Trial Court
being stalled despite the matter having been set down for
arguments, this Court proceeds to hear the petition on merits.
3. Learned counsel appearing for the defendants
vehemently contends that, once the suit has been set down for
arguments, the plaintiff cannot be permitted to seek local
inspection at such a belated stage. Supporting the order
impugned, he submits that the learned Judge has assigned
cogent reasons for rejecting the application and that no
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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perversity or jurisdictional error is made out warranting
interference by this Court.
4. Heard learned counsel for the parties and perused the
order impugned and the pleadings in the suit.
5. Before examining the correctness of the order
impugned, it would be appropriate to extract the prayers
sought in the plaint, which read as under:
“(1) A declaration that the Hindu Undivided family
comprising him and his brother (and their respective
family members) are the owners of the plaint A schedule
property;
(2) Consequential permanent injunction restraining the
defendants or any person claiming through or under them
from interfering with the plaint A schedule property;
(3) Consequential possession of the plaint B schedule
property;
(4) Current and Future mesne profits in respect of the
plaint B schedule property till recovery of possession;
(5) Costs of this suit; and
(6) Such other relief found fit to award in the
circumstances of the suit in the interests of justice.”

6. It would also be appropriate to extract paragraph
Nos.9 and 10 of the plaint, which read as under:
“9. Meanwhile the plaintiff applied for mutation of the
revenue record of rights of the plaint A schedule property
and other property that had come to his father, to his
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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name. However, instead of changing the revenue record
of rights for 3-00 acres the Taluk Revenue Authorities
have transferred only 2.65 acres to his name vide order in
M.C.No.20/06-07 dated 30/06/2006 of the Taluk
Sheristedar, Somwarpet. The plaintiff has been making
representations to set right the said anomaly.
10. Recently the plaintiff got a survey done to properly fix
the boundaries and fence the same to avoid any future
disputes. However he found that the defendants had
encroached the plaint B schedule property without his
knowledge. Hence he got a survey done and ascertained
the area.”

7. A conjoint reading of the aforesaid pleadings and
the prayers sought in the plaint makes it evident that the
plaintiff has instituted the suit seeking a declaration of title
and consequential reliefs of permanent injunction and
recovery of possession of the plaint ‘B’ schedule property.
The specific case pleaded by the plaintiff is that the
defendants have encroached upon a portion of the
property claimed by him. The allegation of encroachment
is stated to have come to light when the plaintiff
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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undertook a survey of the property for the purpose of
fixing its boundaries and fencing the same.
8. The controversy, therefore, is not confined merely
to the declaration of title over the plaint ‘A’ schedule
property. The plaintiff has specifically sought recovery of
possession of the plaint ‘B’ schedule property on the
allegation that the defendants have encroached upon the
same. The extent and precise location of the alleged
encroachment consequently constitute material questions
requiring adjudication in the suit.
9. This Court has consistently held that, in a suit for
recovery of possession founded on an allegation of
encroachment, the question of encroachment ought
ordinarily to be ascertained through a local investigation
by a competent Commissioner, wherever the nature of the
dispute so warrants. Though a plaintiff may institute a suit
on the basis of a private survey report indicating the
alleged encroachment by an adjoining owner, such a
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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report cannot, by itself, be treated as conclusive proof of
the extent or existence of the encroachment. Equally, the
allegation of encroachment may ultimately prove to be
unfounded. The actual position on the spot, therefore,
assumes considerable significance in determining the
controversy between the parties.
10. Disputes concerning encroachment between
adjoining or abutting landowners cannot, in every case, be
effectively adjudicated merely by examining the respective
title documents and the oral evidence adduced by the
parties. Where the controversy essentially concerns the
identification of the property, its boundaries and the
extent, if any, of encroachment, a local investigation by a
competent technical authority would assist the Court in
ascertaining the relevant physical features and the precise
extent of the alleged encroachment. Such an exercise
would enable the Court to adjudicate the controversy on
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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the basis of objective material rather than proceed solely
on the rival assertions of the parties.
11. Order XXVI Rule 9 of the CPC provides the
procedural mechanism for appointment of a Commissioner
to make a local investigation where such investigation is
requisite or proper for the purpose of elucidating a matter
in dispute. The object of the provision is to assist the
Court in arriving at a just and effective adjudication of the
dispute. The power is required to be exercised having
regard to the nature of the controversy and the necessity
of securing an objective assessment of the relevant
physical features.
12. The objection that appointment of a
Commissioner would amount to collection of evidence
cannot be accepted as an absolute proposition. Where the
suit involves a specific allegation of encroachment and the
plaintiff seeks recovery of possession of the allegedly
encroached portion, a local investigation intended to
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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ascertain the physical features, boundaries and extent of
the alleged encroachment would assist the Court in
elucidating the matter in dispute. Such an investigation
would neither establish the plaintiff’s title by itself nor
relieve the parties of their obligation to prove their
respective cases. The Commissioner’s report would
constitute material to be considered by the Court in
accordance with law, subject to the rights of the parties to
raise objections thereto.
13. In the present case, the plaintiff has specifically
pleaded that the defendants have encroached upon the
plaint ‘B’ schedule property and has sought recovery of
possession thereof. The application for appointment of a
Commissioner is, therefore, directly relatable to the
principal controversy in the suit. The learned Judge, in
rejecting the application on the ground that the same
would amount to collection of evidence, has failed to
appreciate the distinction between an impermissible
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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attempt to fill up an evidentiary lacuna and a local
investigation intended to elucidate the physical features
relevant to the adjudication of an alleged encroachment.
14. The reasoning adopted by the learned Judge, in
the facts and circumstances of the present case, cannot be
sustained. The approach overlooks the nature of the relief
sought in the suit and the necessity of ascertaining the
precise extent, if any, of the alleged encroachment. The
observations made in the impugned order are also
contrary to the principles governing the exercise of
jurisdiction under Order XXVI Rule 9 of the CPC, as
declared by this Court in Shadaksharappa v. Kumari
Vijayalaxmi and Others in W.P 201274/2022.
15. The further contention that the suit has already
been set down for arguments does not, by itself, furnish a
valid ground to reject the application. The stage at which
an application for local investigation is filed is undoubtedly
a relevant consideration, however, it cannot be the sole
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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determinative factor where the investigation sought is
necessary to elucidate a material controversy in the suit.
In the present case, the appointment of a Commissioner
would assist the Trial Court in determining the question of
alleged encroachment and would not, by itself, prejudice
the defendants. The defendants would have an adequate
opportunity to participate in the local investigation, furnish
instructions in accordance with law and raise such
objections to the Commissioner’s report as may be
permissible.
16. For the foregoing reasons, this Court is of the
considered view that the order impugned suffers from an
error warranting interference under Articles 226 and 227
of the Constitution of India. The application filed by the
plaintiff under Order XXVI Rule 9 of the CPC deserves to
be allowed.
17. Accordingly, this Court proceeds to pass the
following;
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

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ORDER
i. The writ petition is allowed .
ii. The order dated 03.12.2019 passed on
I.A.No.19 in O.S.No.42/2019, pending on the file
of the Senior Civil Judge, Somwarpet, produced as
Annexure-A, is hereby quashed and set aside.
Consequently, I.A.No.19 stands allowed.
iii. The parties are at liberty to submit their
respective memos of instructions before the Trial
Court for the purpose of local investigation.
iv. The Trial Court shall proceed in accordance
with law and endeavour to dispose of the suit
expeditiously.

Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified

(SACHIN SHANKAR MAGADUM)
JUDGE

HDK
List No.: 1 Sl No.: 9