Mr. Channe Gowda Vs Mr. K R Venkatesh

MR. K. R. VENKATESH, SON OF LATE RAMAIAH AGED 73 YEARS, R/AT KENGAL KEMPOHALLI VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BILLANAKOTE POST – 562 111 BENGALURU RURAL DISTRICT.

¶18

MR. K. R. SIDDAPPA, SON OF LATE RAMAIAH, AGED 70 YEARS, R/AT DEVASANDRA MAIN ROAD, K. R. PURAM, NEAR VENKATESHWARA THEATER, BENGALURU – 560 036.

¶19

2 -

¶20

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶21

HC-KAR

¶22

MR. K. R. SHIVAPPA, SON OF LATE RAMAIAH AGED 67 YEARS, R/AT KENGAL KEMPOHALLI VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BILLANAKOTE POST – 562 111 BENGALURU RURAL DISTRICT.

¶23

…RESPONDENTS

¶24

(BY SRI. P. B. RAJU, ADVOCATE)

¶25

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE/QUASH THE ORDER DATED 11.09.2025 PASSED IN O.S.NO.450/2015 BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, AT NELAMANGALA ON I.A.NO.XIII FILED UNDER ORDER XXVI RULE 9 OF THE CODE OF CIVIL PROCEDURE, 1908 - ANNEXURE-A AND/OR THE HON’BLE COURT MAY KINDLY PASS SUCH OTHER ORDER/DIRECTION IN FAVOUR OF THE PETITIONERS UNDER THE CIRCUMSTANCE OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.

¶26

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

¶27

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

¶28

ORAL ORDER

¶29

This petition by the defendants in O.S.No.450/2015 is directed against the impugned order dated 11.09.2205 passed on I.A.No.13, whereby the said application filed by the respondents –

¶30

plaintiffs under Order 26 Rule 9 CPC for appointment of court

¶31

commissioner was allowed by the trial court by holding as under:-

¶32

“ORDERS ON IA NO.XIII FILED UNDER ORDER 26 RULE 9 R/W SEC.151 OF CODE OF CIVIL PROCEDURE

¶33

3 -

¶34

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶35

HC-KAR

¶36

The plaintiff, through his counsel, has filed the present application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, seeking appointment of a Court Commissioner to ascertain the status of the suit schedule property, to prepare a local inventory, and to submit a report regarding the present status of the property, so as to ascertain the real truth of the matter on the basis of the records already produced and marked before this Court.

¶37

2. In the affidavit, the plaintiff has stated that the present suit relates to the lawful ownership and possession of 5 guntas of land situated in Sy. No. 14/1, which was originally part of 2 acres 9 guntas owned by one Venkatashamappa, who, under a registered sale deed dated 18.03.1960 bearing Document No. 3369/59 Vol. No. 948, Pages 191 to 194, Book No. 1, sold the said 5 guntas to the plaintiff's late father, Kumata Ramaiah, who thereafter got the property mutated in his name in M.R. No. 4/1959-60 and the same was reflected in the revenue records as Sy. No. 14/2, with his name also appearing in the RTC as owner and cultivator from 1975, and he continued in possession and enjoyment by cultivating the land and planting trees until his death on 07/02/2015, while the plaintiffs, being his three sons, have continued to remain in possession, their sisters' share having already been settled in earlier proceedings in O.S. No. 18/2010 on the basis of the same sale deed; however, in 1989, the name of the plaintiff's father was illegally replaced in the RTC by that of Rangadhamaiah, father of the defendants, who, in collusion with revenue officials, manipulated records to wrongfully claim the

¶38

4 -

¶39

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶40

HC-KAR

¶41

property, and ever since, the defendants have been denying the plaintiffs' rights, boundaries, access, and possession, while also providing false schedules and measurements in their pleadings, notwithstanding the clear recital of title in the original deed, the mutation extracts, encumbrance certificate, and revenue records in favor of the plaintiffs' father, which all establish their lawful ownership; therefore, in view of the conflicting claims of both parties and the variance between their boundaries and measurements, and since evidence from both sides has now been concluded, it has become absolutely necessary, just, and equitable for this Court to appoint a Commissioner to conduct a spot inspection, ascertain the true measurements, boundaries, and existing features such as trees, road, and structures, and submit a report to enable the Court to appreciate the ground reality, adjudicate the dispute fairly, prevent multiplicity of proceedings, and ultimately render justice, as this application is a bona fide attempt by the plaintiffs to place the true facts before this Court, without causing any hardship or prejudice to the defendants, but only to safeguard the rights of the plaintiffs which have existed lawfully since their father's purchase of the property. Hence, he prays to allow the application.

¶42

3. The defendants, through their detailed objections, strongly oppose the application filed by the plaintiffs and submit that the same is wholly untenable in law as well as on facts, and therefore liable to be dismissed with exemplary costs. It is their contention that the plaintiffs, having developed a habit of filing repeated and frivolous

¶43

5 -

¶44

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶45

HC-KAR

¶46

applications on false and vexatious allegations, have once again filed the present application only to drag the proceedings and gain wrongful benefit, especially since the suit itself has been pending since 2015 and both parties have already completed their evidence. The defendants categorically deny the averments made in paragraphs 1 to 3 of the plaintiffs affidavit, as well as the claim regarding the alleged 1960 sale deed, pointing out that the plaintiffs have not produced genuine supporting documents such as proper revenue records to establish their alleged title. According to the defendants, the alleged sale deed is concocted and cannot be considered in the absence of corroborating evidence, and the plaintiffs' request to appoint a commissioner is nothing but an impermissible attempt to collect fresh evidence and improve upon their weak case at the fag end of the trial. The defendants further assert that the plaintiffs' entire foundation is based on falsehood, since it is not true that one Venkatashamappa was the owner of 2 acres 9 guntas in Sy. No. 14/1; rather, he owned only 25 guntas in that survey number, which he sold under a registered sale deed dated 19.03.1960 (marked as Ex. D1) to Narayanappa, who along with his son subsequently conveyed 1 acre 20 guntas, including the 25 guntas, in favor of the defendants' father under a registered sale deed dated 18.04.1973 (marked as Ex. D3). The defendants highlight that the plaintiffs have misrepresented facts by alleging that Narayanappa and Thimmaiah sold 30 guntas instead of the actual 25 guntas, thereby misleading the Court. They also point out that the plaintiffs themselves are uncertain about

¶47

6 -

¶48

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶49

HC-KAR

¶50

the actual location of the property, as during the crossexamination of DW1, the plaintiffs' counsel suggested that the suit schedule property lies within the gramatana limits, and moreover, the encumbrance certificate produced by the plaintiffs (Ex. P54) shows that their father purchased only 48 x 8 gajas, which amounts to 3456 square feet, i.e., about 3 guntas, and not 5 guntas as falsely claimed. By calculating on the basis of 1 gunta = 1089 square feet, the defendants demonstrate that the plaintiffs' claim is exaggerated and baseless. Thus, the plaintiffs' reliance on wrong survey numbers, false measurements, and concocted documents clearly establishes the mala fide nature of their claim and their attempt to grab the defendants' property. Accordingly prayed to reject the application.

¶51

4. Heard the counsel for the plaintiff and defendants.

¶52

5. Upon hearing the counsel and on perusal of the materials available on record, the points that arise for my consideration is;

¶53

Whether the plaintiff has made out a ground for appointment of the Court Commissioner for local examination?

¶54

6. My findings to the above point is in the "Affirmative"

¶55

for the following:

¶56

REASONS

¶57

7. POINT: Admittedly, the present suit has been instituted by the plaintiffs seeking the relief of Declaration of title and Permanent Injunction in respect of the suit schedule property. The case of the plaintiffs is that their late father,

¶58

7 -

¶59

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶60

HC-KAR

¶61

namely Kumata Ramaiah, purchased an extent of 5 guntas of land in Sy. No. 14/1 through a registered sale deed dated No 18.03.1960. It is contended that the said property was duly mutated in his name under M.R. No. 4/1959-60 and that his name appeared in the revenue records, including RTC extracts, until it was later manipulated and replaced by the name of the defendants' father, allegedly in collusion with revenue officials. The plaintiffs further submit that they, being the lawful heirs of Ramaiah, are in possession of the suit property and continue to cultivate it with various trees and crops. They allege that the defendants, having no valid right, title, or interest, are attempting to interfere with their possession, deny their ownership, and encroach upon their 5 guntas of land.

¶62

8. The defendants, however, strongly dispute these claims. Their case is that the plaintiffs' entire foundation rests upon a concocted and unsubstantiated sale deed, which is not supported by relevant revenue records. The defendants contend that Venkatashamappa, from whom the plaintiffs' father is alleged to have purchased 5 guntas, was never the owner of 2 acres 9 guntas in Sy. No. 14/1 as claimed, but was only in possession of 25 guntas. They rely on Ex. D1, the registered sale deed dated 19.03.1960, to assert that Venkatashamappa sold 25 guntas of land to one Narayanappa, and further rely on Ex. D3, the registered sale deed dated 18.04.1973, by which Narayanappa and his son sold 1 acre 20 guntas, including the said 25 guntas, to the defendants' father. On this basis, they assert their own lawful ownership and possession over the property. The

¶63

8 -

¶64

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶65

HC-KAR

¶66

defendants further argue that the plaintiffs have exaggerated their claim by alleging purchase of 5 guntas, whereas their own documents, particularly the encumbrance certificate (Ex. P54), reveal only 48 x 8 gajas of land, which amounts to about 3456 square feet or roughly 3 guntas. According to the defendants, the plaintiffs' suit itself is misconceived, and the present application seeking appointment of a commissioner is a mala fide attempt to collect evidence and fill in lacunae after completion of trial.

¶67

9. Thus, from the rival pleadings and evidence, it becomes evident that the core issue before this Court is not only about ownership but more significantly about the identity, measurement, and boundaries of the suit schedule property. The plaintiffs insist that they are entitled to 5 guntas in Sy. No. 14/1, whereas the defendants categorically deny such existence, asserting instead that the plaintiffs' father purchased a much smaller extent in a different survey number. The plaintiffs allege encroachment by the defendants, while the defendants deny the very existence of the plaintiffs' alleged property in Sy. No. 14/1. Such a situation gives rise to confusion about boundaries, extent, and encroachment, which this Court cannot resolve solely on the basis of oral and documentary evidence without corroborating the factual position on the ground.

¶68

10. It is well settled that when there exists a dispute regarding encroachment, boundaries, and identification of property, the most effective and fair method available to the Court is to appoint a Court Commissioner under Order XXVI

¶69

9 -

¶70

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶71

HC-KAR

¶72

Rule 9 of CPC to conduct a local inspection and submit a report. The commissioner acts as an extended arm of the Court and is not intended to supplant evidence but merely to assist the Court in appreciating the true factual situation. A commissioner's report provides a neutral, impartial, and scientific record of the physical features of the property, including its extent, boundaries, adjoining lands, and existing structures. In cases of immovable property disputes, particularly where the boundaries and extent are hotly contested, such a report becomes indispensable to render justice.

¶73

11. In the present case, both parties have already completed their evidence, and the matter is listed for arguments. The defendants have argued that appointment of a commissioner at this stage would amount to collecting evidence on behalf of the plaintiffs. I am unable to agree with this contention. The appointment of a commissioner is not meant to collect fresh evidence but to clarify and confirm the ground reality so that the Court is not left to decide the case based on presumptions or conjectures. The commissioner's report will not automatically bind this Court; it will remain subject to objections by both sides and both parties will be at liberty to cross-examine the commissioner if they so desire. Therefore, there is no prejudice to the defendants in allowing the application. On the contrary, the denial of such an inspection would result in leaving the dispute unresolved as to actual measurements and boundaries, thereby increasing the likelihood of further litigation.

¶74

10 -

¶75

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶76

HC-KAR

¶77

12. Another important factor to be considered is that the plaintiffs allege encroachment and manipulation of boundaries by the defendants. Encroachment is essentially a question of fact, which can best be determined through local inspection by a commissioner. A commissioner can note down the existence of boundaries, the location of roads, pathways, trees, and structures such as houses or compound walls, and can compare the actual physical features with the descriptions contained in the sale deeds and revenue records. Only then can this Court appreciate whether the defendants have indeed encroached upon the plaintiffs 5 guntas of land or whether, as claimed by the defendants, the plaintiffs have no such property at all in Sy. No.14/1.

¶78

13. It is also settled by judicial pronouncements that the appointment of a commissioner in such disputes does not amount to evidence collection but is a tool to assist the Court in comprehensively resolving the matter. The Hon'ble Supreme Court and various High Courts have repeatedly held that in boundary disputes, encroachment allegations, and property identification issues, a commissioner's local inspection is not only permissible but often necessary to ensure effective adjudication. If such a report is not obtained, there is every possibility that the decree passed may not reflect the true state of affairs, which could render it ineffective or unenforceable.

¶79

14. In view of the above detailed discussion, and upon consideration of the rival submissions, I am of the

¶80

11 -

¶81

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶82

HC-KAR

¶83

considered opinion that the appointment of a commissioner is just, proper, and necessary in the present case. The controversy between the parties squarely relates to the existence, extent, and boundaries of the suit schedule property, as well as the alleged encroachment by the defendants. Such issues cannot be conclusively determined without a factual verification on the ground. The commissioner's report will greatly assist this Court in reconciling the documentary evidence with the physical features of the property and in arriving at a fair and conclusive decision. Hence, I answer the above point in the Affirmative and proceed to pass the following;

¶84

ORDER

¶85

I.A.No.XIII filed by the plaintiff under Order XXVI Rule 9 r/w Sec. 151 of the Code of Civil Procedure is hereby allowed.

¶86

Memo of instructions of both the parties.”

¶87

Heard learned counsel for the petitioners and learned counsel for the respondents and perused the material on record.

¶88

A perusal of the impugned order will indicate that the same is in conformity with the well settled principles of law governing appointment of Court Commissioner to conduct local inspection as enunciated by the co-ordinate Bench of Court in the case of Sri. Shadaksharappa Vs. Kumari Vijayalaxmi & others –

¶89

12 -

¶90

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶91

HC-KAR

¶92

2023 SCC OnLine KAR 53 and the judgment of the Apex Court in the case of Rahul S.Shah vs. Jinendra Kumar Gandhi –(2021) 6 SCC 418 , particularly when there was a dispute regarding identity, location, measurements, boundaries, etc., of properties claimed by both sides.

¶93

Upon re-appreciation, reconsideration and re-evaluation of

¶94

the entire material on record, I am of the considered opinion that the impugned order does not suffer from any illegality or infirmity nor has the same occasioned failure of justice warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in

¶95

the cases of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and

¶96

Mohamed Ali Vs. V. Jaya & others – (2022) 10 SCC 477 .

¶97

In the result, I pass the following:

¶98

ORDER

¶99

(i) Petition is hereby disposed of without interfering with

¶100

the impugned order.

¶101

13 -

¶102

NC: 2026:KHC:4337 WP No. 35635 of 2025

¶103

HC-KAR

¶104

(ii) Liberty is reserved in favour of the parties to submit their respective memos of instructions before the Court Commissioner including parties to file objections, if any, to the Commissioner’s report and examine / cross-examine, if they so desire.

¶105

(iii) Liberty is also reserved in favour of the parties to seek amendment of the their respective pleadings, if they so desire.

¶106

(iv) All rival contentions on all aspects of the matter including the report and evidence of the court commissioner are kept open and no opinion is expressed on the same.

¶107

Sd/(S.R.KRISHNA KUMAR) JUDGE

¶108

SRL List No.: 1 Sl No.: 75

Mr. Channe Gowda v. Mr. K R Venkatesh

Case brief

What is this about?

What did the court decide?

Mr. Channe Gowda v. Mr. K R Venkatesh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sri. Vikas Daga Vs Smt. Puttananjamma

Sri. B. L. Venugopal Vs Sri. Mohammed Amanulla

Smt. J.R. Shanmukhappa Vs Sri.N.T. Ganesh

Smt. Nagamma Vs Sri. Basavanna

Thirunellai Vishwakarma Vs Sendhil Kumar

Smt.Eshwari Vs Sarojamma