SHRI. SUKRA S/O LACHMEYYA NAIKA vs KUPPAYYA S/O KARIYA GOND

Court
Karnataka High Court

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD

ND
DATED THIS THE 2 DAY OF NOVEMBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE M.G.S. KAMAL

WRIT PETITION NO. 100651 OF 2025 (GM-CPC)

BETWEEN:

1. SHRI. SUKRA S/O. LACHMEYYA NAIKA
AGE: 69 YEARS, OCC: HOUSEWFIE,
R/O.LACHAMAYYANAMANE,
KEMMANNAGADDE, GOLIBEELURU,
BHATKALA-581320.
… PETITIONER
(BY SRI. PRANAV BADAGI, ADVOCATE FOR
SRI. R.H. ANGADI, ADVOCATE)

AND:

1. KUPPAYYA S/O. KARIYA GOND
AGE: 80 YEARS, OCC: RETIRED,
R/O. KARIYANAMANE KEMMANNAGADDE,
GOLIBEELURU, TQ: BHATKALA,
DIST: UTTARA KANNADA-581320.

2. SANNI W/O KUPPAYYA KARIYA GOND
AGE: 58 YEARS, OCC: HOUSEHOLD
R/O. KARIYANAMANE KEMMANNAGADDE,
GOLIBEELURU, TQ: BHATKALA,
DIST: UTTARA KANNADA-581320.
… RESPONDENTS
(BY SRI. VENKATESH M. KHARVI, ADVOCATE FOR R1 AND R2)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN ORDER IN
THE NATURE OF WRIT OF CERTIORARI QUASHING THE
IMPUGNED ORDER ON I.A. NO. I FILED BY THE PLAINTIFF











Digitally
signed by
SAROJA
HANGARAKI
Location: high
court of
karnataka,
dharwad
bench

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UNDER ORDER XXVI RULES 9 R/W SEC. 151 OF CPC, DATED.
09/01/2025, IN O.S. NO. 23/2022, ON THE FILE OF PRINCIPAL
CIVIL JUDGE AND JMFC., BHATKAL, VIDE ANNEXURE-G, AND
CONSEQUENTLY ALLOW I.A. NO. I FILED BY THE PLAINTIFF
UNDER ORDER XXVI RULES 9 R/W SEC. 151 OF CPC, DATED.
02/04/2022, VIDE ANNEXURE-E, FILED BY PETITIONER TO
MEET THE ENDS OF JUSTICE.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN B’GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:

CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

ORAL ORDER

1. The petitioner, who is the plaintiff in O.S.No.23/2022, is
before this Court, being aggrieved by the order dated
09.01.2025 passed therein, whereby the application filed by the
petitioner in I.A.No.1 under Order XXVI Rule 9 read with
Section 151 of CPC, seeking appointment of a Commissioner to
conduct a survey and identify the property in possession of the
plaintiff and the defendants, has been rejected.
2. The case of the petitioner/plaintiff is that he is the owner in
possession of land bearing Sy.No.32/4B, measuring 00-08-08
(A.G.A), situated at Golibeeluru Village, Bhatkal Taluk, and that
an extent measuring 00-03-02 (A.G.A), forming part of the said

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land is in illegal possession of the defendants. Hence, the suit is
filed seeking declaration and delivery of possession.
3. Defendant No.1, in paragraph 19 of the written statement,
has contended that he is the absolute owner in possession of
land bearing Sy.No.32/6, measuring 00-00-04 (A.G.A), and
Sy.No.32/4A, measuring 00-07-08 (A.G.A), of the said village.
According to defendant No.1, the said lands were granted by
the Land Tribunal, Bhatkal.
4. The application seeking appointment of a Commissioner
indicates that there is a dispute with regard to the boundaries
of the 'A' schedule property and the extent of land in
possession of the defendants. The trial Court has rejected the
said application on the premise that there is sufficient material
already on record to adjudicate the matter and that the belated
application filed for appointment of a Commissioner cannot be
allowed. Being aggrieved by the said order, the present petition
is filed.
5. Learned counsel for the petitioner submits that the trial
Court has not appreciated the contentions urged in the

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application, particularly with regard to identification of the
extent of land in possession of the defendants and the
boundaries of the schedule property.
6. Learned counsel for the respondents/defendants, on the
other hand, submits that the defendants are in possession of
the property as mentioned in paragraph 19 of the written
statement, in their own right, and that they have not
encroached upon any portion of the property belonging to the
petitioner. Hence, he submits that rejection of the application
by the trial Court is justified.
7. Heard and perused the records.
8. The petitioner/plaintiff claims to be the absolute owner in
possession of land bearing Sy.No.32/4B, measuring 00-08-08
(A.G.A), of which, according to the plaintiff, the defendants are
in possession of 00-03-02 (A.G.A). The boundaries given in the
application are: North by Sy.No.32/4A; East by a portion of the
same survey number; South by survey line; and West by
survey line.

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9. The defendants, on the other hand, claims to be in
possession of land bearing Sy.No.32/6, measuring 00-00-04
(A.G.A), and Sy.No.32/4A, measuring 00-07-08 (A.G.A).
10. In the affidavit accompanying the application, at paragraph
2, the plaintiff has contended as under:
"I say that I have filed the suit for possession in
respect of the 'A' schedule property against the
defendant. My main contention is that the
defendants have illegally encroached upon the 'A'
schedule property. Further, the main point of
contention between me and the defendants is the
boundary of the 'A' schedule property and the extent
of land in possession of the defendant. The
defendant has disputed the said extent."
11. The trial Court, however, as seen from the impugned order,
has rejected the application on the premise that there is
sufficient material on record and that the application has been
filed belatedly.
12. If paragraph 2 of the affidavit accompanying the application
is perused, the petitioner appears to be contending that the
defendants are in possession of land in excess of the extent
claimed by them. If that be the case, the trial Court shall
ascertain whether the defendants are in possession of land in

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excess of the extent mentioned in paragraph 19 of the written
statement and thereafter consider the feasibility of appointing a
Commissioner. The suit bring clarity in the respective conetions
and claims of the parties for effective adjudication of the matter
by the Trial Court.
13. In that view of the matter, this Court proceeds to pass the
following:
ORDER
allowed
(i) The writ petition is .
(ii) The impugned order dated 09.01.2025 passed on
I.A.No.1 in O.S.No.23/2022 by the Principal Civil
Judge and JMFC, Bhatkal, is hereby quashed.
(iii) The matter is remitted to the trial Court for fresh
consideration of I.A.No.1, in accordance with law.
(iv) The parties are at liberty to place on record their
respective contentions as to whether the defendants
are in possession of land in excess of the extent
claimed by them in paragraph 19 of the written
statement.

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(v) If such a contention is raised, the trial Court shall
consider the feasibility of appointing a Commissioner
in accordance with law for effective adjudication of the
lis.
(vi) All contentions of the parties are kept open.


Sd/-
(M.G.S. KAMAL)
JUDGE





VB/CT:GSM/LIST NO.: 1 SL NO.: 45