Smt. Sumathi Poojarthi, Vs Smt. Gulabi Amma

SRI. RAMESH UPADHYAYA AGED ABOUT 69 YEARS S/O. LATE NARAYANA UPADHYAYA R/AT NO.3, III CROSS, MUWESHWAR BLOCK NAGAPPA STREET, PALACE GUTTAHALLI MALLESHWARAM, BANGALORE-560008.

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SMT. SHASHIKALA V.SARALAYA AGED ABOUT 65 YEARS D/O. LATE NARAYANA UPADHYAYA W/O. VENKATRAMANA SARALAYA R/AT NO. 11,5^TH CROSS, II MAIN ARKERA I.I.B.M. POST, BANGALORE-560 076.

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SRI. M. MADHUSUDHAN UPADHYAYA AGED ABOUT 62 YEARS S/O. LATE NARAYANA UPADHYAYA R/AT NO. 127/6, III MAIN 1^ST CROSS, G.D.PARK EXTENTION VAISHALIKAVAL, BANGALORE-560003

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SRI. N. BALAKRISHNA UPADHYAYA AGED ABOUT 60 YEARS S/O. LATE NARAYANA UPADHYAYA R/AT NO.2/1, 12^TH MAIN ROAD N.VASANTH NAGAR WEST OPP. TO MOUNT CARMEL COLLEGE BANGALORE-560 052.

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SMT. SUNITHA M. RAO AGED ABOUT 55 YEARS D/O. LATE NARAYANA UPADHYAYA W/O. MANOJ RAO R/AT D.NO. 2626, ANANDA NILAYAM 19^TH MAIN, J.C. NAGAR KURUBARHALLI, BANGALORE-86.

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SMT. JYOTHI BHAT AGED ABOUT 52 YEARS D/O. LATE NARAYANA UPADHYAYA W/O. KRISHNAMOORTHI BHAT

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NC: 2026:KHC:14266 WP No. 36407 of 2025

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HC-KAR

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NO.89,D.D. AND SONS BUILDING 10^TH MAIN, J.C. NAGAR KURUBARHALLI, BANGALORE-86

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&RESPONDENTS

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(BY SRI. ARJUN P R, ADVOCATE FOR SRI M S NARAYAN., ADVOCATE FOR R1 TO R8)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED: 09.10.2025 PASSED IN I.A. NO. 1 IN O.S. NO. 93/2022 BY THE SENIOR CIVIL JUDGE AND ACJM, KARKALA. (ANNEXURE-A) AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

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ORAL ORDER

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In this writ petition, the petitioners-plaintiffs have called in question the order dated 09.10.2025 passed on I.A.No.1 in O.S.No.93/2022 filed under Order XXVI Rule 9 and Section 151 of CPC, whereby the application seeking appointment of a Commissioner has been rejected by the Senior Civil Judge and ACJM, Karkala (hereinafter referred to as 8Trial Court9 for short).

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NC: 2026:KHC:14266 WP No. 36407 of 2025

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HC-KAR

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For the sake of convenience, the parties are referred

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to as per their rankings before the Trial Court.

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The petitioners are the plaintiffs, who have filed the suit for possession and mesne profits. The petitioners filed I.A.No.1 under Order XXVI Rule 9 read with Section 151 of CPC seeking appointment of a Commissioner to assess the net agricultural income of the suit property by noticing the variety and extent of the agricultural produce and also to find out the alleged encroachment by the defendant over the 8A9 schedule property.

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The Trial Court, while dismissing the application, has rightly recorded a finding that insofar as the question of encroachment is concerned, since the suit is one for possession, appointment of a Court Commissioner is not necessary. However, no finding has been given with regard to the assessment of the net agricultural income of the schedule property by noticing the variety and extent of

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HC-KAR

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agricultural produce, particularly when the plaintiffs have also sought for mesne profits.

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In view of the above, the writ petition requires to be allowed by setting aside the order dated 09.10.2025 passed on I.A. No.1 in O.S.No.93/2022 filed under Order XXVI Rule 9 and Section 151 of CPC. Accordingly, the following order is passed:

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ORDER

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a) The writ petition is allowed .

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b) The impugned order dated 09.10.2025 passed

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by the Trial Court on I.A.No.1 in O.S.No.93/2022 filed under Order XXVI Rule 9 and Section 151 of CPC is hereby set aside.

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c) The Trial Court is directed to reconsider I.A.No.1 filed by the plaintiffs-petitioners under Order XXVI Rule 9 and Section 151 of CPC insofar as it relates to assessing the net agricultural income of the suit schedule

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NC: 2026:KHC:14266 WP No. 36407 of 2025

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