G.K.KRISHNAPPA vs SRI.YOGESHWAR VARMA
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:56914
WP No. 537 of 2022
CNR: KAHC010010212022
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. 537 OF 2022 (GM-CPC)
BETWEEN:
1. G.K.KRISHNAPPA
S/O LATE GANGAPPA
AGED ABOUT 63 YEARS
R/AT AMRUTHAHALLI
YELAHANKA HOBLI, SAHAKARNAGAR(POST)
BANGALORE -560 092.
…PETITIONER
(BY SRI. B.S. RAGHU PRASAD, ADVOCATE FOR
SRI. MANJUNATHA, ADVOCATE)
AND:
1.
1(A)
1(B)
1(C)
SRI.YOGESHWAR VARMA
SINCE DECEASED BY HIS LR'S
SMT.JYOTHI
W/O LATE YOGESHWAR VARMA.D
AGED ABOUT 45 YEARS
SRI KARTHIK VARMA
S/O LATE YOGESHWAR VARMA.D
AGED ABOUT 26 YEARS
SRI MUKESH VARMA
S/O LATE YOGESHWAR VARMA.D
AGED ABOUT 22 YEARS
ALL ARE R/AT FLAT NO.326,
'A' BLOCK, S V S PATEL CALLISTO
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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NC: 2026:KHC:56914
WP No. 537 of 2022
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TALACAUVERY LAYOUT, AMRUTHAHALLI,
BNAGALORE -560 092.
2. SRI M DORAI SWAMY
S/O LATE MUTHU SWAMY
AGED ABOUT 53 YEARS
R/AT 92, KARTHIK NILAYAM
AMRUTHANAGAR, BANGALORE -560 092.
3. B.VIJAYA
W/O N. NAGARAJ
AGED ABOUT 42 YEARS
BOMBAI SAVITHRAMMA BUILDING
NO.66M JAKKUR MAIN
AMRUTHAHALLI, BANGALORE -560 092.
4. G. SRINIVAS RAJU
S/O LATE G.RAMA RAJU
AGED ABOUT 42 YEARS
R/AT 71/A, 'C' SECTOR
SAHAKAR NAGAR, AMRUTHAHALLI
BANGALORE-560 092.
5. MRS.MEERA BAROORKAR
W/O LATE PRAKASH BAROORKAR
AGED ABOUT 50 YEARS
R/AT NO.660, 10TH MAIN, RPC LAYOUT,
VIJAYANAGAR, BANGALORE -560 040.
6. M.MURUGASHAN
S/O MUNISHAMY
AGED ABOUT 45 YEARS
R/AT NO.488, BANGARAPPA LAYOUT,
AMRUTHNAGAR, BANGALORE-560 092.
7. SMT.NAGAMMA
D/O LATE MUNIRAJAPPA
AGED ABOUT 80 YEARS
8. SMT.KANTHAMMA
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56914
WP No. 537 of 2022
CNR: KAHC010010212022
W/O LATE NAGARAJ
AGED ABOUT 65 YEARS
BOTH ARE R/AT NO.10/14,
1ST MAIN ROAD, RAJAMAHAL GUTTAHALLI,
BANGALORE-560 020.
…RESPONDENTS
(BY SRI. B.A. CHANDRASHEKAR, ADVOCATE FOR R3;
SRI. KAMALUDDING AHMED, ADVOCATE FOR R5;
SRI. G.S. VENKATA SUBBARAO, ADVOCATE FOR R8
SRI. R. SHYAMA, ADVOCATE FOR R1(A TO C);
R1(B AND C) REP. BY GPA HOLDER R1(A);
V/O DATED 07.10.2026, SRI. VENKATA RAM, ADVOCATE
FOR R2)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN
O.S.NO.6390/2012 PENDING BEFORE THE FILE OF XVIII ADDL
CITY CIVIL JUDGE (CCH-10) AT BANGALORE, QUASH THE
ORDER DATED 15.12.2021 PASSED BY XVIII ADDL. CITY CIVIL
JUDGE (CCH-10) AT BANGALORE IN O.S.NO.6390/2012 AS PER
ANNEXURE-E AS IMPROPER AND ALLOW THE APPLICATION
FILED UNDER ORDER 26 RULE 9 R/W SECTION 151 OF CPC (IA
NO.10) FILED BY THE PETITIONER; AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL ORDER
The captioned writ petition is filed by the plaintiff
calling in question the order passed by the learned Trial
Judge rejecting I.A.No.10 filed under Order XXVI Rule 9 of
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
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WP No. 537 of 2022
CNR: KAHC010010212022
the Code of Civil Procedure, 1908 (for short, ‘the CPC’),
seeking appointment of a Court Commissioner to conduct
a local inspection and ascertain the extent of the alleged
encroachment.
2. Heard learned counsel appearing for the
petitioner and learned counsel appearing for the
respondents. Perused the impugned order, the averments
made in the plaint and the reliefs sought therein.
3. The petitioner, as plaintiff, has instituted the
suit seeking a declaration challenging the validity of the
sale deeds in question and consequentially seeking a
declaration of his absolute ownership over the suit
schedule property measuring 6¼ guntas (6,800 square
feet). The plaintiff has also sought a consequential
direction to the defendants to quit and deliver vacant
possession of the suit schedule property.
4. It is not in dispute that both parties have
already adduced evidence in support of their respective
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56914
WP No. 537 of 2022
CNR: KAHC010010212022
claims. At this stage, the plaintiff has filed an application
seeking appointment of a Court Commissioner to conduct
a local inspection and ascertain the extent of the alleged
encroachment. The said application is resisted by the
defendants primarily on the ground that the appointment
of a Court Commissioner at this stage would amount to
permitting the plaintiff to collect evidence in support of his
case.
5. In a suit wherein the plaintiff seeks a
declaration of title and consequential relief of possession
on the specific allegation that the defendants have
encroached upon the suit schedule property, the question
of encroachment assumes considerable significance in the
effective adjudication of the dispute. The controversy
cannot invariably be resolved merely by examining the
title deeds relied upon by the parties or by appreciating
their oral evidence. Where the precise extent and location
of the alleged encroachment constitute the crux of the
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56914
WP No. 537 of 2022
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dispute, a local inspection by a competent Court
Commissioner may become necessary to elucidate the
matter in controversy. The Court cannot, by merely
adverting to the rival title documents and the oral
evidence, conclusively ascertain the physical features of
the property or determine the precise extent of the alleged
encroachment. The provisions of Order XXVI of the CPC
provide an appropriate mechanism for securing the
assistance of a Court Commissioner in such circumstances.
The application filed by the plaintiff seeks precisely such
assistance to ascertain the extent of the alleged
encroachment.
6. In the present case, the plaintiff specifically
alleges that the defendants have encroached upon an
extent of 6¼ guntas, and the relief of possession sought in
the plaint is also referable to the said extent. Therefore,
unless the allegation of encroachment is examined with
reference to the actual physical features, boundaries and
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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NC: 2026:KHC:56914
WP No. 537 of 2022
CNR: KAHC010010212022
measurements of the property through an appropriate
local inspection, the controversy in the suit may not be
effectively and completely adjudicated. The mere fact that
the plaintiff may establish his title to the property, either
in whole or in part, would not, by itself, resolve the
dispute concerning the extent of the alleged
encroachment. The objection that the appointment of a
Court Commissioner would amount to collecting evidence
cannot, in the facts and circumstances of the present case,
constitute a valid ground to reject the application,
particularly when the proposed inspection is intended to
elucidate the physical aspects of the controversy. The
learned Trial Judge has, therefore, committed a serious
error in rejecting the application on the ground that the
plaintiff had not sought delivery of the encroached portion,
without properly appreciating the nature of the reliefs
sought in the plaint and the controversy requiring
adjudication.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56914
WP No. 537 of 2022
CNR: KAHC010010212022
7. A perusal of the impugned order indicates that
the learned Trial Judge has failed to advert to the specific
prayer made in the plaint seeking recovery of possession
of the property alleged to have been encroached upon by
the defendants. The rejection of the application without
considering the nature of the suit, the reliefs claimed and
the necessity of ascertaining the alleged encroachment
has resulted in an erroneous exercise of jurisdiction. The
impugned order, therefore, suffers from material
irregularity and perversity warranting interference by this
Court in exercise of its supervisory jurisdiction under
Article 227 of the Constitution of India.
8. For the foregoing reasons, this Court proceeds
to pass the following:
ORDER
allowed
(i) The writ petition is .
(ii) The order dated 15.12.2021 passed on
I.A.No.10 in O.S.No.6390/2012 by the XVIII
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56914
WP No. 537 of 2022
CNR: KAHC010010212022
Additional City Civil Judge (CCH-10), Bengaluru,
produced at Annexure-E, is hereby quashed and
set aside.
(iii) Consequently, I.A.No.10 filed by the
plaintiff under Order XXVI Rule 9 of Code of Civil
procedure, 1908 stands allowed.
(iv) The plaintiff and the defendants are at
liberty to submit their respective memos of
instructions, if any, indicating the specific
aspects to be examined by the Court
Commissioner.
(v) Upon receipt of the memos of
instructions, the learned Trial Judge shall appoint
a competent Court Commissioner, preferably
possessing the requisite technical expertise, to
conduct a local inspection and ascertain the
location and extent of the alleged encroachment,
with reference to the relevant survey records,
boundaries and other relevant particulars.
(vi) The Court Commissioner shall confine
the enquiry to the matters referred for local
inspection and submit a report to the learned
Trial Court. The parties shall be at liberty to raise
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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WP No. 537 of 2022
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their respective objections to the report in
accordance with law.
(vii) All contentions of the parties on the
merits of the suit are kept open.
(viii) The learned Trial Court shall proceed
with the suit in accordance with law and
endeavour to dispose of the same expeditiously.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
(SACHIN SHANKAR MAGADUM)
JUDGE
CA
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