SRI. S N BABU @ G N R BABU vs SRI. DR B C MUTHAPPA
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:58443
WP No. 20739 of 2026
CNR: KAHC010457382026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 14 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION NO. 20739 OF 2026 (GM-CPC)
BETWEEN:
1.
SRI. S N BABU @ G N R BABU
S/O. LATE NARAYANASWAMY REDDY,
AGED ABOUT 58 YEARS, RESIDING AT NO. 18,
6TH MAIN, N.S.PALYA, BTM II STAGE,
BENGALURU-560 076.
2. SRI.S.N.SHEKAR,
S/O. LATE NARAYANASWAMY REDDY,
AGED ABOUT 56 YEARS, RESIDING AT NO. 18,
6TH MAIN, N.S.PALYA, BTM II STAGE,
BENGALURU-560 076.
…PETITIONERS
Digitally
signed by
VINUTHA B S
Location:
High Court of
Karnataka
(BY SRI. BHADRINATH R.,ADVOCATE)
AND:
1. SRI. DR B C MUTHAPPA
S/O. LATE B.I.CHENGAPPA, AGED ABOUT 81 YEARS,
RESIDING AT NO.207, WEST FANNIN, CLARKEVILLA,
TEXAX UNITED STATES OF AMERICA, REPRESENTED
BY POWER OF ATTORNEY HOLDER,
SMT.K.DEVAKI KALAPPA,
AGED ABOUT 48 YEARS,
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W/O.LATE K.M.KALAPPA,
RESIDING AT NO.20, K.H.ROAD,
BENGALURU-560 027.
2. THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY, NO.7,
T.CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE-560 020
…RESPONDENTS
(BY SRI. K.G. KAMATH, ADVOCATE FOR R-1,
SRI. M H HANEEF, ADVOCATE FOR R-2)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE
IMPUGNED ORDER DATED 10.04.2026 IN O.S.NO.6610 OF
2014 PASSED BY THE IX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-5) ON THE INTERIM
APPLICATION (I.A.NO.NIL) FILED BY THE
PLAINTIFF/RESPONDENT NO.1 UNDER ORDER XXVI RULE 9 OF
THE CODE OF CIVIL PROCEDURE AS FOUND AT ANNEXURE-A
AND CONSEQUENTLY TO REJECT THE INTERIM APPLICATION
FILED BY THE PLAINTIFF/RESPONDENT NO.1 I.A.NO.NIL
UNDER ORDER XXVI RULE 9 OF THE CODE OF CIVIL
PROCEDURE FILED BY THE PLAINTIFF/RESPONDENT NO. LAS
FOUND AT ANNEXURE-E.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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HC-KAR
NC: 2026:KHC:58443
WP No. 20739 of 2026
CNR: KAHC010457382026
CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND
ORAL ORDER
This petition impugns the order dated 10.04.2026,
whereby the application filed under Order XXVI Rule 9 of the
Code of Civil Procedure, 1908, came to be allowed and a Court
Commissioner was appointed.
2. Learned counsel appearing for the petitioners submits
that the plaintiffs claim the suit schedule property, namely, Site
No.28, as forming part of Survey Nos.56, 57 and 60 of
Bilekahalli Village and Survey Nos.61, 71 and 72 of N.S. Palya
Extension, Bengaluru, whereas the property of the petitioners
forms part of Survey No.172/5, measuring 32 guntas, situated
at Bilekahalli Village, Begur Hobli, Bengaluru South Taluk.
2.1 It is submitted that, since the plaintiffs have instituted
the suit seeking the reliefs of declaration and injunction, the
burden is on them to establish their case, and a Court
Commissioner cannot be appointed for the purpose of collecting
evidence. It is further submitted that the appointment of a
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Court Commissioner before the conclusion of the trial is
premature and impermissible.
3. Per contra , learned counsel appearing for respondent
No.1 submits that, if the case of the petitioners is that their
property forms part of Survey No.172/5 of Bilekahalli Village,
whereas the suit schedule property is claimed to form part of
different survey numbers of Bilekahalli Village and N.S. Palya
Extension, no prejudice would be caused to the petitioners by
the appointment of a Court Commissioner.
3.1 Learned counsel further submits that the petitioners
have, even before the Hon’ble Supreme Court, contended that
the two properties are unconnected with each other. It is
further submitted that, since the plaintiffs claim rights over the
suit schedule property through an allotment made by the
Bangalore Development Authority (BDA), the appointment of
BDA officials as Court Commissioners is justified.
4. Learned counsel appearing for respondent No.2-BDA
submits that, as the documents relating to the property in
question are in the custody of the BDA, the appointment of an
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officer of the BDA as Court Commissioner is justified. It is
further submitted that, if this Court considers it appropriate to
appoint any other person as Court Commissioner, an officer of
the BDA may also be appointed as a co-commissioner to
conduct a joint inspection.
5. Considered the submissions made by learned counsel for
the parties and perusal of the impugned order.
6. The suit is one for declaration and for removal of the
structures allegedly put up by the petitioners herein by
encroaching upon the suit schedule property. The specific
contention of the petitioners/defendant Nos.1 and 2 is that
their property forms part of Survey No.172/5, measuring 32
guntas, situated at Bilekahalli Village, Begur Hobli, Bengaluru
South Taluk.
7. One of the principal points of dispute is the identity of the
suit schedule property. In view of the divergent contentions
raised by the parties regarding the identity of the property, the
appointment of a Court Commissioner is necessary to ascertain
whether the suit schedule property forms part of Survey
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Nos.56, 57 and 60 of Bilekahalli Village and Survey Nos.61, 71
and 72 of N.S. Palya Extension, Bengaluru, or whether the
petitioners are in possession of property forming part of Survey
No.172/5 of Bilekahalli Village.
8. The Co-ordinate Bench of this Court, in W.P.
No.201274/2022 , by order dated 24.01.2023 , in the case of
Shadaksharappa v. Kumari Vijayalaxmi and Others , has
categorically held that, where the identity of the property or the
extent of encroachment constitutes the central dispute in a
suit, the appointment of a Court Commissioner during the
course of the trial is desirable. The report of the Court
Commissioner would not only assist the Court in adjudicating
the dispute but also enable the parties to clarify their respective
stands. Further, both parties would have the opportunity to
raise objections to the Commissioner's report and, if necessary,
cross-examine the Court Commissioner.
9. In view of the above, this Court finds no error or infirmity
in the impugned order warranting interference in the present
writ petition. However, the submission made by learned
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counsel for the petitioners that officials of the BDA ought not to
be appointed as Court Commissioners merits consideration.
10. The plaintiffs claim right, title and interest over the suit
schedule property through the acquisition of land, formation of
a layout and allotment made by the BDA. If, upon adjudication,
the suit schedule property is found either not to exist or to be
incapable of identification, the plaintiffs may necessarily have
recourse to appropriate remedies against the BDA. In such
circumstances, the BDA has an interest in the outcome of the
suit. If an official of the BDA is appointed as Court
Commissioner to conduct the survey, there would be a
possibility of apprehension of bias, which may defeat the very
purpose of appointing a Court Commissioner. The object of
such appointment is to assist the Court in adjudicating the
dispute impartially, without favouring either party.
11. In that view of the matter, this Court is of the considered
opinion that the Assistant Director of Land Records having
jurisdiction over the disputed area, namely, Bengaluru South
Taluk, may be appointed as Court Commissioner. The
particulars of the competent officer, along with the proposed
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instructions to be issued to the Commissioner, shall be placed
before the Trial Court by both parties on the next date of
hearing.
12. The learned counsel appearing for respondent No.2-BDA
submits that a joint inspection involving officials of the BDA
would serve the purpose of the commission. However, in view
of the observations made hereinabove regarding the BDA's
interest in the outcome of the suit, the said request cannot be
acceded to.
13. The Co-ordinate Bench of this Court, in the judgment
referred to supra , has categorically held that the appointment
of a Court Commissioner should not result in, or be used as a
means of, delaying the proceedings. Having regard to the fact
that the appointment of the Court Commissioner is being
permitted during the course of the trial, the commission shall
be executed and the report submitted within one month from
the date on which the Trial Court issues the necessary
instructions.
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WP No. 20739 of 2026
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14. In the light of the above, the impugned order dated
10.04.2026, stands modified to the extent indicated
hereinabove.
15. Learned counsel for the petitioners is at liberty to file a
fresh memo of instructions in accordance with the observations
made hereinabove.
Accordingly, the writ petition is disposed of .
Sd/-
(K. V. ARAVIND)
JUDGE
DDU
List No.: 1 Sl No.: 11