SRI HALAPPA LAXMAN RAJAPUR vs SRI MANOHAR MARUTI RAJAPUR
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC-D:17869
WP No. 102456 of 2024
CNR: KAHC020068432024
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 30 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 102456 OF 2024 (GM-CPC)
BETWEEN:
SRI HALAPPA LAXMAN RAJAPUR
AGED 55 YEARS, OCC. AGRICULTURE,
R/O HIDKAL, TQ. RAIBAG, DIST. BELGAUM-590001.
…PETITIONER
(BY SRI. RAMACHANDRA A. MALI, ADVOCATE)
AND:
1. SRI MANOHAR MARUTI RAJAPUR
AGED 60 YEARS, OCC. AGRICULTURE,
2. SRI VITHAL MARUTI RAJAPUR
AGED 55 YEARS, OCC. AGRICULTURE,
3. SRI SADASHIV MARUTI RAJAPUR
AGED 53 YEARS, OCC. AGRICULTURE
4. SRI ASHOK MARUTI RAJAPUR
AGED 51 YEARS, OCC. AGRICULTURE,
5. SMT. YAMANAVVA W/O SATYAPPA WADEYAR
AGE 75 YEARS, OCC. AGRICULTURE,
6. SRI. LAXMAN PUNDALIK SANNAKKINAVAR
AGE 75 YEARS, OCC. AGRICULTURE,
Digitally
signed by
SAROJA
HANGARAKI
Location: high
court of
karnataka,
dharwad bench
7. SRI MARUTI PUNDALIK SANNAKKINAVAR
AGE 65 YEARS, OCC. AGRICULTURE,
8. SRI APPASAB PUNDALIK SANNAKKINAVAR
AGE 63 YEARS, OCC. AGRICULTURE,
9. SRI RAMU PUNDALIK SANNAKKINAVAR
AGE 61 YEARS, OCC. AGRICULTURE,
10. SRI KIRAN VASANT PATIL
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WP No. 102456 of 2024
CNR: KAHC020068432024
AGE 49 YEARS, OCC. ADVOCATE,
ALL ARE R/O HIDAKAL, TQ. RAIBAG,
DIST. BELAGAUM-590009.
…RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R1 TO R4;
NOTICE TO R5 TO R10 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS IN O.S. NO.158/2019 ON THE FILE OF ADDL. CIVIL JUDGE
AND JMFC, RAIBAG AND ISSUE A WRIT OF CERTIORARI OR ANY
OTHER WRIT OR ORDER IN THE LIKE NATURE TO QUASH THE
ORDER DTD. 16-4-2022 MADE ON I.A. DTD. 25-3-2022 FILED BY
RESPONDENTS 1 TO 4 HEREIN IN O.S. NO. 158/2019 PASSED BY
THE ADDL. CIVIL JUDGE AND JMFC, RAIBAG PRODUCED AT ANNEX-
E AND CONSEQUENTLY DISMISS THE I.A. DTD. 25-3-2022 FILED BY
THE RESPONDENTS 1 TO 4 HEREIN IN O.S. NO. 158/2019 ON THE
FILE OF ADDL. CIVIL JUDGE AND JMFC RAIBAG AND ALLOW THE
MEMO DTD. 25-10-2019 FILED BY THE PETITIONER VIDE
ANNEXURE-C IN THE SAID SUIT AS PRAYED FOR THEREIN IN THE
INTEREST OF THE A JUSTICE AND EQUITY AND ETC.
THIS WP 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. 158/2019,
is before this Court, being aggrieved by the order dated
16.04.2022 passed by the trial Court, whereby the
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HC-KAR
NC: 2026:KHC-D:17869
WP No. 102456 of 2024
CNR: KAHC020068432024
application filed by the defendants under Order XXVI Rule
9 of the Code of Civil Procedure, 1908, seeking
appointment of a Court Commissioner to measure the
suit property, came to be allowed.
2. Learned counsel for the plaintiff-petitioner submits that
the petitioner had filed a memo seeking dismissal of the
suit as not pressed on the ground that the dispute had
been settled out of Court. Though the said memo was
filed on 25.10.2019, no order has been passed thereon
till date.
3. He further submits that the application seeking
appointment of a Court Commissioner came to be allowed
on the premise that the plaintiff-petitioner had expressed
no objection to such appointment, as the matter was
likely to be settled. He contends that no such submission
was made on the instructions of the petitioner and that
the earlier counsel appearing for the petitioner had made
such a submission without obtaining his instructions. He
submits that, upon coming to know of the impugned
order passed by the trial Court, the petitioner engaged
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WP No. 102456 of 2024
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another counsel and, thereafter, approached this Court
by filing the present writ petition. Hence, he seeks
allowance of the writ petition.
Per contra
4. , learned counsel for the respondents submits
that the impugned order was passed on 16.04.2022 and
has already been acted upon. Pursuant thereto, a Court
Commissioner was appointed, who measured the
property and submitted a report indicating that the
petitioner had encroached upon the land belonging to the
defendants.
5. It is further contended that the petitioner has approached
this Court after a lapse of nearly two years from the date
of the impugned order, only with a view to overcoming
the Commissioner's report and the findings recorded
therein. It is also submitted that the petitioner had earlier
instituted a similar suit, which came to be withdrawn, and
that the present suit is the second suit instituted by him.
6. He further submits that the memo filed by the petitioner
seeking withdrawal of the suit was on the ground that the
matter had been settled out of Court. However, the
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respondents had filed objections disputing the alleged
settlement.
7. Heard and perused the records.
8. The memo filed by the petitioner, produced at Annexure-
C, is dated 25.10.2019 indicates that the petitioner
intended to withdraw the suit on the ground that the
dispute had been settled out of Court. The defendants
filed their objections to the said memo on 12.02.2020,
produced at Annexure-C1, specifically denying that any
such settlement had been arrived at between the parties.
9. Thereafter, the defendants filed an application under
Order XXVI Rule 9 of the Code of Civil Procedure on
25.03.2022. No objections were filed by the petitioner to
the said application. The impugned order indicates that
the petitioner had consented to the appointment of a
Court Commissioner.
10. In the aforesaid circumstances, it is the proceedings and
orders recorded by the trial Court that have to be given
due consideration, and not the subsequent oral
submission to the effect that the petitioner's earlier
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counsel had consented to the appointment of a
Commissioner without his instructions, particularly in the
absence of any justifiable material to substantiate such a
contention.
11. At this juncture, learned counsel for the
respondents also points out that the petitioner's
contention that his earlier counsel had consented to the
appointment of the Commissioner without his instructions
is untenable, inasmuch as the earlier counsel had
continued to represent the petitioner in the suit even
thereafter and had continued to appear till the filing of
the present writ petition.
12. In view of the aforesaid facts and circumstances,
this Court is of the considered opinion that the impugned
order passed by the trial Court does not warrant
interference. The petitioner has failed to make out any
ground for interference under Articles 226 and 227 of the
Constitution of India.
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WP No. 102456 of 2024
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dismissed
13. Accordingly, the writ petition stands as
bona fides
being devoid of merit and , with costs of
₹5,000/- payable by the petitioner to the respondents.
Sd/-
(M.G.S. KAMAL)
JUDGE
VB, CT:VP/LIST NO.: 1 SL NO.: 34