SMT. DEVEERAMMA vs SRI. S MAHADEVU
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:56978
WP No. 19312 of 2021
CNR: KAHC010395282021
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. 19312 OF 2021 (GM-CPC)
BETWEEN:
1. SMT. DEVEERAMMA
W/O LATE MAHALINGASETTY
AGED ABOUT 76 YEARS
2. SRI MALLIKARJUN
S/O LATE MAHALINGASETTY,
AGED ABOUT 50 YEARS,
3. SRI MAHADEVU
S/O LATE MAHALINGASETTY,
AGED ABOUT 45 YEARS,
4. SRI SHIVAKUMAR
S/O LATE MAHALINGASETTY,
AGED ABOUT 37 YEARS,
ALL ARE R/AT SY NO 167,
(2ND ITEM OF THE SUIT PROPERTY)
OF VIJAYAPURA, KASABA HOBLI,
GUNDLUPET TALUK,
CHAMARAJNAGAR DISTRICT 571111.
…PETITIONERS
(BY SRI. MUNIYAPPA, ADVOCATE)
AND:
SRI. S MAHADEVU
S/O LATE SHIVALINGASETTY,
DEAD BY LRS
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56978
WP No. 19312 of 2021
CNR: KAHC010395282021
1. SMT GAYATHRI,
S/O LATE S MAHADEVU,
AGED ABOUT 53 YEARS,
2. SRI M PRAMOD
S/O S MAHADEVU,
AGED ABOUT 27 YEARS,
3. SRI M PRADEEP
S/O S MAHADEVU,
AGED ABOUT 24 YEARS,
R1 TO R3 ARE R/AT
F W S NO 20, 2ND STAGE, K H B COLONY,
KUVEMPUNAGARA, MYSURU 570023.
4.
SRI NAGEGOWDA,
S/O LATE DODDEGOWDA,
SINCE DEAD BY HIS LRS
SMT MAYAMMA,
W/O LATE NAGEGOWDA,
AGED ABOUT 60 YEARS,
5. SRI NAGU
S/O LATE NAGEGOWDA,
AGED ABOUT 45 YEARS,
6. SRI CHANNAPPA
S/O LATE NAGEGOWDA,
AGED ABOUT 43 YEARS,
7. SRI RAJU
S/O LATE NAGEGOWDA,
AGED ABOUT 41 YEARS,
8. SMT JAYAMMA
D/O LATE NAGEGOWDA,
AGED ABOUT 39 YEARS,
9. SRI MANJU
S/O LATE NAGEGOWDA,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56978
WP No. 19312 of 2021
CNR: KAHC010395282021
AGED ABOUT 37 YEARS,
R4 TO R9 ARE R/AT MAHADEV PRASAD NAGAR,
1ST STAGE, VIJAYAPURA,
NEAR SOUTH DEPOT, GUNDLUPET TOWN,
CHAMRAJNAGAR DISTRICT 571111.
10. SRI GANESH
S/O NOT KNOW,
AGED ABOUT MAJOR,
REGISTERED SURVEYOR,
O/AT TALUK SURVEY OFFICE,
MINI VIDHANA SOUDHA, GUNDLUPET TOWN,
CHAMRAJNAGAR DISTRICT 571111
…RESPONDENTS
(BY SRI. PRAMOD .R AND SRI. PRAKASHA .H.C, ADVOCATES
FOR R4 TO R9;
R10 SERVED)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDERS
DATED 29.09.2021 ON I.A. NO.12 IN O.S.NO.229/2011
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, AT
GUNDLUPET VIDE ANNX-A; 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
The captioned petition is filed by the plaintiffs
assailing the order passed by the learned Judge rejecting
the application filed by them under Order XXVI Rule 9 of
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56978
WP No. 19312 of 2021
CNR: KAHC010395282021
the Code of Civil Procedure, 1908 (for short, ‘the CPC’),
seeking appointment of a Commissioner for local
inspection of the suit schedule ‘B’ property.
2. Heard the learned counsel appearing for the
petitioners and perused the impugned order as well as the
pleadings in the plaint.
3. The petitioners, who are the plaintiffs in
O.S.No.229/2011, have instituted the suit seeking a
declaration of title by way of adverse possession and
consequential relief of permanent injunction. After
completion of the evidence, when the matter was set down
for arguments, the plaintiffs filed an application under
Order XXVI Rule 9 of the CPC seeking local inspection of
the suit schedule ‘B’ property to ascertain and record its
existing physical features and status. The learned Judge,
upon consideration of the application, has rejected the
same. Aggrieved by the said order, the plaintiffs are
before this Court.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56978
WP No. 19312 of 2021
CNR: KAHC010395282021
4. The question that arises for consideration is
whether, at the stage when the suit is set down for
arguments, the plaintiffs can seek appointment of a
Commissioner for local inspection to ascertain the existing
physical features and status of the suit schedule property.
5. It is well settled that the power under Order
XXVI Rule 9 of the CPC is intended to assist the Court in
elucidating any matter in dispute which may require local
investigation. Such power cannot be exercised to enable a
party to collect evidence in support of its case or to fill up
lacunae in the evidence already adduced.
6. In the present case, the plaintiffs seek a
declaration of title by way of adverse possession and
consequential relief of permanent injunction. The burden is
on the plaintiffs to establish the necessary ingredients of
adverse possession and their entitlement to the reliefs
sought in the suit on the basis of the pleadings and
evidence on record. The existing physical features or
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56978
WP No. 19312 of 2021
CNR: KAHC010395282021
status of the suit schedule property, by themselves,
cannot establish the plaintiffs’ claim of title by adverse
possession or their entitlement to the consequential relief
of injunction.
7. Further, the application has been filed after
completion of the evidence and when the matter was
posted for arguments. In the facts and circumstances of
the case, permitting a local inspection at this stage, in the
manner sought by the plaintiffs, would amount to enabling
them to gather additional evidence after conclusion of the
trial. Such a course cannot be permitted under the guise
of an application under Order XXVI Rule 9 of the CPC. This
Court, therefore, finds no illegality or infirmity in the order
passed by the learned Judge warranting interference in
exercise of its supervisory jurisdiction under Article 227 of
the Constitution of India.
8. For the foregoing reasons, the writ petition,
dismissed
being devoid of merit, stands .
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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HC-KAR
NC: 2026:KHC:56978
WP No. 19312 of 2021
CNR: KAHC010395282021
All pending interlocutory applications, if any, stand
disposed of.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
(SACHIN SHANKAR MAGADUM)
JUDGE
CA
List No.: 1 Sl No.: 38