Smt Kempamma Vs Sri. Swamy Alias Doreswamy — Writ and Judicial Review | Karnataka HC (2026)

Smt Kempamma Vs Sri. Swamy Alias Doreswamy — Writ and Judicial Review | Karnataka HC (2026)

What the court decided

AI extract

Outcome

Writ petition allowed; impugned order dated 22.07.2021 on I.A.No.4 in O.S.No.710/2014 set aside and I.A.No.4 restored, with liberty to press the application after conclusion of trial.

Issue for consideration

Whether the trial Court erred in dismissing I.A.No.4 (under Order XXVI Rule 9 read with Section 151 CPC) for appointment of a Court Commissioner to measure schedule 'B' property and trace the alleged encroachment, on the ground that the property stood specifically described and the plaintiff had yet to prove ownership.

Court's answer

The factum of encroachment must be ascertained by physical inspection by a Court Commissioner; the trial Court committed a grave error in rejecting the commissioner application merely because the schedule 'B' description was clear.

Ratio / Principle

Although the burden of proving ownership of schedule 'B' property rests on the plaintiff during trial, that circumstance alone cannot justify rejection of an application for appointment of a Court Commissioner where the plaintiff alleges encroachment by the defendant.

Key takeaways

A plaintiff alleging encroachment may establish it through pleadings and oral and documentary evidence, and is additionally entitled to seek appointment of a Court Commissioner to find out the encroachment.ratio¶¶32
Since the commissioner application was filed at an initial stage of the trial, the appropriate course is to permit the petitioner to press I.A.No.4 after conclusion of trial, with the trial Court to consider it, if need arises, on the evidence on record and keeping in mind the law laid down in Shadaksharappa v. Kumari Vijayalaxmi.ratio¶¶37

Detailed headnote1 paragraphs

Civil Procedure – Appointment of Court Commissioner – Order XXVI Rule 9 read with Section 151 CPC – Suit for declaration of ownership and possession wherein plaintiff alleged encroachment of schedule 'B' property – Trial Court rejected commissioner application holding that schedule 'B' was specifically described (check bandi) and plaintiff must first prove ownership – Held: factum of encroachment requires ascertainment by physical inspection by a Court Commissioner; the burden on the plaintiff to prove ownership during trial is not, by itself, a ground to reject such an application; a plaintiff alleging encroachment is entitled, in addition to pleading and evidence, to seek appointment of a Commissioner to locate the encroachment – Application having been filed at an initial stage of trial, petitioner permitted to press I.A.No.4 after conclusion of trial; impugned order set aside and I.A.No.4 restored – Trial Court to consider the application keeping in mind Shadaksharappa v. Kumari Vijayalaxmi and Others (WP.No.201274/2022, dated 24.01.2023).

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NC: 2026:KHC:19434 W.P. No.14655/2021

HC-KAR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF APRIL, 2026

BEFORE

THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.14655/2021 (GM-CPC)

BETWEEN:

Digitally signed by ARSHIFA BAHAR KHANAM Location: HIGH COURT OF KARNATAKA

SMT. KEMPAMMA W/O LATE VEERAIAH @ ERAIAH AGE 62 YEARS R/O. DEVIRAMMANAHALLI VILLAGE KASABA HOBLI, NANJANAGUD TALUK MYSORE DIST.

…PETITIONER (BY SRI. CHINMAY KURANDWAD, ADV., FOR SRI. R.C. NAGARAJ, ADV.,)

AND:

SRI. SWAMY ALIAS DORESWAMY S/O KULLAPPA AGED 67 YEARS R/O DEVIRAMANAHALLI VILLAGE KASABA HOBLI, NANJANAGUD TALUK MYSORE DISTRICT.

…RESPONDENT (V.C.O. DTD:04.10.2021, SERVICE OF NOTICE TO RESPONDENT IS H/S AND PLACED EXPARTE)

THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 22.07.2021 PASSED BY THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, NANJANGUD ON I.A.NO.4 IN O.S.NO.710/2014 PRODUCED AT ANNEXURE-A AS ILLEGAL & ETC.

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NC: 2026:KHC:19434 W.P. No.14655/2021

HC-KAR

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

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This petition is filed challenging the order dated 22.07.2021 passed on IA.No.4 in OS.No.710/2014 by the I Additional Civil Judge and JMFC, Nanjangud (for short ‘the trial Court’).

Heard Sri.Chinmay Kurandwad, learned counsel for Sri.Nagaraj R.C., learned counsel appearing for the petitioner and meticulously perused the material available on record.

Despite service of notice, the respondent

remained absent.

The petitioner/plaintiff filed OS.No.710/2014 seeking a declaration that she is the absolute owner of the schedule ‘B’ property, along with the consequential relief of possession. In the said suit, during the course of trial, the

3 - NC: 2026:KHC:19434 W.P. No.14655/2021

HC-KAR

GPA holder one Smt.Mahadevamma filed an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking the appointment of a Civil Engineer as Court Commissioner to measure the suit schedule property and to trace out the encroached portion of the schedule ‘B’ property by the defendant. The said application was dismissed by the trial Court mainly on the ground that the description of the schedule ‘B’ property in the plaint was specific with regard to its measurement and boundaries (check bandi), and that the defendant had objected that the ‘B’ schedule property is owned by them. The trial Court also recorded a finding that until the plaintiff proves her ownership, the application could not be entertained. It is to be noticed that the petitioner/plaintiff has approached before the trial Court with a specific prayer seeking declaration of ownership over the schedule ‘B’ property as well as possession, alleging that the defendant has encroached upon the said property, which forms the part of schedule ‘A’ property.

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NC: 2026:KHC:19434 W.P. No.14655/2021

HC-KAR

The factum of encroachment is required to be ascertained by physical inspection by a Court Commissioner. Hence, in my considered view, the trial Court has committed a grave error in rejecting the application on the ground that the measurement and description of the ‘B’ schedule property is clear and that the plaintiff must first prove her ownership. While it is not in dispute that the burden is on the plaintiff to prove the ownership of the ‘B’ schedule property during the course of trial. However, that same cannot be a ground to reject the application for appointment of a Court Commissioner particularly when the plaintiff is asserting that the defendant has encroached the ‘B’ schedule property. The said encroachment is required to be established by the plaintiff by way of pleading, by adducing oral and documentary evidence and in addition she is also entitled to seek the appointment of Court Commissioner to find out the encroachment. However, it is also to be noticed that the application for appointment of a Court Commissioner was filed at an initial stage of the trial.

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NC: 2026:KHC:19434 W.P. No.14655/2021

HC-KAR

In the circumstances, it would be appropriate to

permit the petitioner to press the application in IA.No.4 after the conclusion of the trial and the trial Court shall consider the said application, if need arises, based on the evidence available on record. Accordingly, the writ petition is allowed . With the above liberty and observations, the impugned order dated 22.07.2021 passed on IA.No.4 in OS.No.710/2014 by the I Additional Civil Judge and JMFC, Nanjangud is hereby set aside and consequently, IA.No.4 stands restored. The trial Court shall consider IA.No.4 after the conclusion of the trial, keeping in mind law laid down by this Court in the case of Shadaksharappa v. Kumari Vijayalaxmi and Others¹

Sd/(VIJAYKUMAR A. PATIL) JUDGE

ABK List No.: 1 Sl No.: 19

1 WP.No.201274/2022 dated 24.01.2023