Disposed

Smt.Kalavakunta Jyothi v. Smt.Jayamma

Karnataka HC29 Jan 2026WP/36305/2024

Case brief

AI extract

What is this about?

This High Court disposed of a writ petition challenging an order allowing the appointment of a court commissioner in an original civil suit regarding property boundaries. The Court held that the impugned order was correct and did not suffer from illegality, disallowing interference under Article 227.

What did the court decide?

Petition disposed of without interfering with the impugned order; liberty reserved to file instructions and seek amendment.

Smt.Kalavakunta Jyothi Vs Smt.Jayamma — Landlord and Tenant | Karnataka HC (2026)

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NC: 2026:KHC:5144 WP No. 36305 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF JANUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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WRIT PETITION NO. 36305 OF 2024 (GM-CPC)

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BETWEEN:

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SMT.KALAVAKUNTA JYOTHI W/O.N.MURALI MOHAN AGED ABOUT 40 YEARS, R/A.NO.2A, 1^ST FLOOR, NO.344, 9TH MAIN, 'A' BLOCK, AECS LAYOUT, SINGASANDRA, BANGALORE-560068

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SRI.NELLEPALLI MURALI MOHAN S/O.LATE DORESWAMY REDDY AGED ABOUT 45 YEARS M R/A.NO.2A, 1^ST FLOOR, NO.344, 9^TH MAIN, 'A' BLOCK, AECS LAYOUT, SINGASANDRA, BANGALORE-560068

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…PETITIONERS

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Digitally signed by MADHURI S Location: High Court of Karnataka

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(BY SRI. B.J. KRISHAN, ADVOCATE FOR SRI. PRASHANTH CHANDRA S. N., ADVOCATE)

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AND:

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SMT.JAYAMMA W/O.LATE PILLA ABBAIAH AGED ABOUT 78 YEARS, R/A.NO.230, 1^ST MAIN, 7^TH CROSS, SINGASANDRA, BEGUR HOBLI, BENGALURU SOUTH TALUK BENGALURU-560 068

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…RESPONDENT

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(BY SRI.M. SRINIVASA GOWDA .,ADVOCATE FOR C/R)

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NC: 2026:KHC:5144 WP No. 36305 of 2024

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HC-KAR

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THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD. 03.12.2024 PASSED BY THE XXIX ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-30) IN O.S.NO. 2320/2023 ON IA NO. V VIDE ANNX-F, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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

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ORAL ORDER

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This petition by the defendants in O.S.No.2320/2023 is directed against the impugned order dated 03.12.2024 passed on I.A.No.5, whereby the said application filed by the respondent – plaintiff under Order 26 Rule 9 CPC for appointment of court commissioner was allowed by the trial court by holding as under:-

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ORDERS ON IA.NO.5

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The Plaintiff has filed IA.No.5 U/o.26 Rule 9 of CPC for appointment of Court Commissioner to visit the the spot and to conduct the survey of the suit schedule property for the purpose of elucidating the dispute between the plaintiff and defendants. In support of IA.No.5, the plaintiff herein sworn to an affidavit and stated the reasons.

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The defendants have filed the objection to IA.No.5 and contended that the plaintiff has filed the present

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NC: 2026:KHC:5144 WP No. 36305 of 2024

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HC-KAR

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application in order to fill up the lacuna. The PW-1 was unable to answer regarding identification of the suit schedule property, the plaintiff has not produced the documents regarding the identification of the suit schedule property. Therefore, the plaintiff has filed the present application for appointment of Court Commissioner. If the court commissioner is appointed, it amounts to collection of evidence. The appointment of court commissioner for collecting the evidence is not permissible under law. As the layout was formed by the society, there is no existence of suit schedule property. If the court commissioner is appointed, no purpose would serve. Moreover, there are no bonafide grounds for appointment of court commissioner. As such, the application filed by the plaintiff is liable to be dismissed.

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Heard the learned counsel for plaintiff and defendants on IA.No.5.

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The following points arise for my consideration:

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1. Whether the plaintiff has made out bonafide grounds for appointment of court commissioner as prayed in the application?

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2. What order?

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My answer to the above points are as follows: Point No.1 : In the Affirmative Point No.2 : As per final order for the following:

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NC: 2026:KHC:5144 WP No. 36305 of 2024

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HC-KAR

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REASONS

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POINT NO.1:- The plaintiff has filed the present suit against the defendants seeking relief of mandatory injunction to restrain the defendants from putting up construction over the suit schedule property and other consequential reliefs. The subject matter of the present suit is Sy.No.72/5 measuring 5 guntas of Singasandra Village, Begur Hobli, Bangalore South Taluk. The defendants property is site No.385A. It is alleged that the suit schedule property was not acquired for the formation of the residential layout by Air Craft Employees House building Co-Operative Society. The defendants property comes within Sy.No.68/1, but the defendants have illegally encroached upon the portion of suit schedule property and constructed the house. Such being the case, the defendants have contended that the Site bearing No.385A is situated in Sy.No.68/1 and it is not situated in Sy.No.72/5 of Singasandra Village. They have constructed their house in Site No.385A which is situated in Sy.No.68/1, they never encroached the plaintiff's property as alleged in the plaint.

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On appreciation of aforesaid facts, it clearly goes to show that there is a dispute that the Site No.385A is situated in Sy.No.68/1 or Sy.No.72/5 of Singasandra Village. But the defendants have contended that as the plaintiff has filed the present suit seeking relief of permanent injunction, she has to establish that she is in lawful possession and enjoyment of the suit schedule property. If the court commissioner is appointed, it amounts to collection of evidence. In that

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NC: 2026:KHC:5144 WP No. 36305 of 2024

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HC-KAR

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regard, the learned counsel for defendants relied upon the decision reported in ILR 1996 KAR 1443, Puttappa V/s Ramappa, Wherein, the Hon'ble High Court of Karnataka has held that;

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“In a suit for injunction, the question as to who is in possession of the property, is a matter to be decided by the court on the basis of the evidence, either oral or documentary, to be adduced by the parties. That function cannot be delegated to a commissioner who cannot find out as to who is in possession of the property”.

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In view of the ratio laid down in the above decision, it is very clear that in a suit for injunction, the court commissioner cannot be appointed to ascertain who is in possession of the property. In the case on hand, it is not in dispute that the property bearing Sy.No.72/5 belonged to the plaintiff. It is also not in dispute that the defendants have purchased the property bearing Site No.385A. But there is a dispute that the site No.385A either situated in Sy.No.68/1 or in Sy.No.72/5. It is well settled law that if there is a dispute regarding the identification of the property, the assistance of the court commissioner is very much required to adjudicate the lis between the parties. In order to ascertain that site No.385A is situated either in Sy.No.68/1 or Sy.No.72/5 of Singasandra Village, the appointment of court commissioner is very necessary. If the court commissioner has visited and conducted the survey of Sy.No.68/1 and 72/5 of Singasandra Village, the report of the court commissioner will assist the court to arrive at a proper conclusion. In the absence of the commissioner report, it is very difficult for the court to give a findings that the Site No.385A is situated in Sy.No.68/1 or

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NC: 2026:KHC:5144 WP No. 36305 of 2024

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HC-KAR

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Sy.No.72/5. Considering all these aspects, this court is of the opinion that the plaintiff has made out bonafide grounds to appoint the court commissioner as prayed in the application. Accordingly, I hold Point No.1 in the Affirmative.

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8. POINT NO.2 :- In view of the above discussion made

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on Point No.1, this Court proceed to pass the following;

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ORDER

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IA.No.5 filed U/o.26 Rule 9 of CPC by the plaintiff is hereby allowed.

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The Taluk Surveyor, Bangalore South Taluk is hereby appointed as court commissioner.

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The court commissioner fee is fixed at Rs.3,000/-.

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To deposit the court commissioner fees and to file their Memo of Instructions.”

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

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A perusal of the impugned order will indicate that the

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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 –

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NC: 2026:KHC:5144 WP No. 36305 of 2024

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HC-KAR

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2023 SCC OnLine KAR 53 and the judgment of the Apex Court in

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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.

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Upon re-appreciation, reconsideration and re-evaluation

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of 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 the cases of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohamed Ali Vs. V. Jaya & others – (2022) 10 SCC 477 .

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In the result, I pass the following:

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ORDER

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(i) Petition is hereby disposed of without interfering with the impugned order.

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NC: 2026:KHC:5144 WP No. 36305 of 2024

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HC-KAR

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(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.

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

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(iv) All rival contentions on all aspects of the matter including

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the report and evidence of the court commissioner are kept open and no opinion is expressed on the same.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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BMC/SRL List No.: 1 Sl No.: 76

Smt.Kalavakunta Jyothi v. Smt.Jayamma

Case brief

What is this about?

What did the court decide?

Smt.Kalavakunta Jyothi v. Smt.Jayamma

Case brief

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