IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.21322/2021 (GM-CPC)

BETWEEN:

SRI. BETTE GOWDA S/O LATE NARASHIME GOWDA AGED ABOUT 78 YEARS R/AT NO.194, NEAR WATER TANK KUMBAR KOPPAL, MYSURU-570004 Digitally signed REPRESENTED BY GPA HOLDER by RUPA V K.B. VIJAY KUMAR.

Location: H IGH …PETITIONER COURT OF (BY SRI. CHIDANANDA P, ADV.,)

KARNATAKA AND:

SMT. M.V. VIJAYALAKSHMI W/O KRISHNE GOWDA AGED ABOUT 56 YEARS R/AT NO.38, IST CROSS ADI PAMPA ROAD V V MOHALLA, MYSURU-570002.

…RESPONDENT (BY SRI. K.B. CHANDRA SHEKARA SWAMY, ADV.,)

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI SETTING ASIDE OR QUASHING THE ORDER DTD.7.9.2021 PASSED ON IA NO.13 BY THE HON'BLE PRL. FIRST CIVIL JUDGE AND JMFC AT MYSORE IN O.S.NO.255/2012 AT ANNEXURE-F & ETC.

THIS PETITION HAVING BEEN HEARD AND RESERVED ON

18.03.2026, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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

CAV ORDER

This writ petition is filed challenging the order dated

07.09.2021 passed on I.A.No.13 in O.S.No.255/2012, by the III Additional Civil Judge and JMFC, Mysuru.

2. The learned counsel for the petitioner submits that the petitioner-plaintiff has filed a suit for perpetual injunction against the defendant. In the said suit, the defendant disputed the description of the suit schedule property and to find out the factual matrix, the plaintiff filed an application for appointment of the Court Commissioner to survey and measure the suit schedule property as well as site No.228 claimed by the defendant. However, the Trial Court, under the impugned order, rejected the application solely on the ground that the application is filed belatedly and since the suit is for injunction, the plaintiff is required to prove his lawful possession. It is submitted that when the defendant has disputed the description of the property in question, the appointment of the Court Commissioner is a must. Hence, he seeks to allow the writ petition.

3. Per contra, the learned counsel for the respondent-defendant supports the impugned order of the Trial Court and submits that the plaintiff is required to prove his lawful possession over the suit schedule property by adducing the material evidence and therefore, filing of the application for appointment of the Court Commissioner would not arise. Hence, he seeks to dismiss the writ petition.

4. I have heard the arguments of the learned counsel for the petitioner, learned counsel for the respondent and perused the material available on record.

5. The material on record indicates that the plaintiff has filed a suit in O.S.No.255/2012 against the defendant for the relief of injunction by contending that the defendant and his agents, servants are interfering with the suit schedule property and are trying to put up a structure in a portion of the suit schedule property. The suit schedule property is shown as a residential house with asbestos sheet roofing at site No.227, carved out of Sy.Nos.228, 229/1, 229/2, 229/3, 231/2, 232 and 273/2 totally measuring 14 acres 5 guntas, out of which a site measuring East to West: 40+45/2 feet and North to South: 42 feet carved out in Sy.No.229/2 of Hebbal Village, Kasaba Hobli, Mysuru Taluk. The chakbandi to the schedule is also shown more particularly towards the western side as the property of Vanivilas House Building Co-operative Society. The defendant filed a detailed written statement denying the assertions of the plaint. It is averred that the description of the suit schedule property and the measurement is not correct. The same was disputed by the defendant and without seeking the relief of declaration, the suit is not maintainable. It is further averred that the defendant has purchased site No.228 carved out of the lands bearing Sy.Nos.228, 229/1, 229/3, 231/2, 232 and 273/2 of Hebbal Village, Ka