The Karnataka High Court has clarified that in suits for perpetual injunction where the description of the suit property is contested, the trial court must appoint a Court Commissioner to ascertain boundaries. This is not a discretionary matter but a procedural necessity to enable just adjudication.
Background & Facts
The Dispute
The petitioner, Sri. Bette Gowda, filed Original Suit No. 255/2012 before the III Additional Civil Judge and JMFC, Mysuru, seeking a perpetual injunction against the respondent, Smt. M.V. Vijayalakshmi. The petitioner alleged that the respondent and her agents were interfering with his residential property located at Site No. 227, carved out of Survey Nos. 228, 229/1, 229/2, 229/3, 231/2, 232 and 273/2 in Hebbal Village, Kasaba Hobli, Mysuru Taluk. The suit property was described as measuring 40+45/2 feet (East-West) by 42 feet (North-South), situated within Survey No. 229/2.
Key Facts
- The suit property was claimed to have been acquired from Vanivilas House Building Co-operative Society
- The respondent disputed the description and measurement of the suit property
- The respondent claimed ownership of Site No. 228, which she alleged was purchased from Vanivilas Mohalla Gruha Nirmana Sahakari Sangha Ltd. under a registered sale deed dated 24.02.2007
- The respondent’s sale deed sketch indicated Site No. 228 lay within Survey No. 273/2
- The petitioner’s plaint and supporting affidavit asserted that the suit property was carved out of Survey No. 229/2
- The dispute centered on whether the suit property and the respondent’s claimed site were located in the same or different survey numbers
- No prior survey or demarcation had been conducted to resolve the boundary conflict
Procedural History
- 24.02.2007: Respondent executed registered sale deed for Site No. 228
- 2012: Petitioner filed O.S. No. 255/2012 for perpetual injunction
- 07.09.2021: Trial Court rejected I.A. No. 13 filed by petitioner seeking appointment of Court Commissioner under Order XXVI Rule 9 CPC, on grounds of delay and alleged burden of proof
- 18.03.2026: Writ Petition No. 21322/2021 heard and reserved by Karnataka High Court
- 24.03.2026: Judgment delivered by Justice Vijaykumar A. Patil
The Parties' Positions
Petitioner’s Position: The respondent’s denial of the suit property’s description created a factual ambiguity that could only be resolved by a Court Commissioner’s survey. The application was not dilatory and was necessary to establish lawful possession.
Respondent’s Position: The petitioner must prove lawful possession through documentary and oral evidence; appointment of a Commissioner is unnecessary and prejudicial. The suit is not maintainable without a declaration of title.
Relief Sought
The petitioner sought quashing of the order dated 07.09.2021 rejecting I.A. No. 13, and direction to the Trial Court to appoint a Court Commissioner to survey and demarcate the suit property and Site No. 228.
The Legal Issue
The central question was whether, under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, a Trial Court is obligated to appoint a Court Commissioner when the description and boundaries of the suit property are materially disputed by the defendant, particularly in a suit for injunction.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that Order XXVI Rule 9 CPC empowers the court to appoint a Commissioner to make a local investigation when the court requires assistance in ascertaining facts. The dispute over survey numbers and measurements rendered the pleadings insufficient for adjudication. Citing Smt. S. S. R. R. Ramachandra Rao v. Smt. S. S. R. R. Raghunatha Rao, he contended that in boundary disputes, the court must facilitate accurate factual determination before granting injunctive relief. Delay was not fatal as the issue was fundamental to jurisdiction.
For the Respondent
The respondent’s counsel contended that the burden of proving lawful possession lies on the plaintiff, and no statutory provision mandates a Commissioner’s appointment. Relying on K. S. Narayana v. K. S. Ramaiah, he argued that the plaintiff must establish title and possession through documents and witnesses, and that survey appointments are discretionary and should be denied if the claim is vague or dilatory.
The Court's Analysis
The Court examined the nature of the pleadings and the material on record. It noted that the respondent had not merely denied possession but had specifically challenged the survey number, measurement, and location of the suit property, asserting ownership over a different survey number. This was not a mere denial but a positive assertion of an alternative title and location.
"It is evident that there is a dispute with regard to the identification of the property claimed by the plaintiff as well as the defendant. The burden is on the plaintiff to establish his lawful possession over the suit schedule property by adducing the oral and documentary evidence before the Trial Court in order to grant the relief sought in the plaint."
The Court held that the Trial Court erred in rejecting the application solely on the ground of delay and the alleged burden of proof. It emphasized that Order XXVI Rule 9 CPC is a procedural tool designed to assist the court in resolving factual disputes that cannot be settled on pleadings alone. The appointment of a Commissioner is not an admission of title but a mechanism to ascertain facts.
The Court further observed that the respondent would retain full rights to cross-examine the Commissioner, challenge the report, and present rebuttal evidence. No prejudice would arise from the appointment. The failure to conduct a survey rendered the adjudication speculative and potentially unjust.
The Court rejected the notion that a suit for injunction is not maintainable without a declaration of title. It clarified that a suit for injunction can proceed independently where possession is claimed and interfered with, and the court may infer title from possession unless rebutted.
The Verdict
The writ petition was allowed. The impugned order dated 07.09.2021 rejecting I.A. No. 13 was set aside. The Trial Court was directed to appoint a Court Commissioner to survey and demarcate the suit property described in O.S. No. 255/2012 and Site No. 228 claimed by the respondent. No order as to costs was made.
What This Means For Similar Cases
Survey Appointments Are Mandatory in Boundary Disputes
- Practitioners must file applications under Order XXVI Rule 9 CPC whenever property description is contested, regardless of delay, if the dispute affects the court’s ability to determine possession
- Courts cannot reject such applications on grounds of delay alone when the factual ambiguity is material to the relief sought
Injunction Suits Do Not Require Prior Declaration of Title
- A suit for injunction based on possession is maintainable even without a declaration of title, provided the plaintiff alleges interference with possession
- The court may infer title from possession unless the defendant proves superior title
Commissioner’s Report Is Not Conclusive But Crucial
- The Commissioner’s report is evidence, not a final determination
- Parties retain full rights to cross-examine, object, and adduce contrary evidence
- Courts must treat such reports as essential tools for factual clarity, not procedural burdens
