IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.37504/2016 (GM-CPC) BETWEEN:
SMT. AKKAYYAMMA W/O. LATE CHIKKATHIMMARAYAPPA AGED ABOUT 68 YEARS, R/AT HOROBANDE VILLAGE, KASABA HOBLI, CHIKKABALLAPUR TALUK AND DISTRICT – 562 101 REP. BY HER GPA HOLDER SRI. R.A. GOPALAPPA S/O. R.C. ANJINAPPA, AGED ABOUT 50 YEARS, R/AT RAMANATHAPURA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT – 562 110 ...PETITIONER (BY SRI. CHANDRASHEKAR SWAMY K.B., ADVOCATE) AND:
1. SRI. MUNIRAJU S/O. LATE THIMMADASAPPA, AGED ABOUT 48 YEARS, 2. SMT. VENKATALAKSHMAMMA W/O. MUNIRAJU, AGED ABOUT 36 YEARS, 3. MASTER THARUN S/O. MUNIRAJU, AGED ABOUT 10 YEARS, 4. KUM. THANUSHRI D/O. MUNIRAJU, AGED ABOUT 10 YEARS, RESPONDENT NO.3 AND 4 ARE REP. BY THEIR NATURAL GUARDIAN & NEXT FRIEND AND THEIR FATHER SRI. MUNIRAJU – RESPONDENT NO.1 5. SMT. T. THRISHILA D/O. LATE THIMMADASAPPA, AGED ABOUT 31 YEARS, ALL ARE RESIDING AT HOROBANDE VILLAGE, KASABA HOBLI, CHIKKABALLAPUR TALUK AND DISTRICT – 562 101 6. SRI. P. JAGADISH S/O. P.S. GANGADHARACHARI AGED ABOUT 40 YEARS, R/AT NO.152/2, T.G.TANK ROAD, WARD NO.9, CHIKKABALLAPUR CITY, CHIKKABALLAPUR DISTRICT – 562 101 7. SMT. NASEEMA BEGUM D/O. GOUSE MOHIYUDDIN, W/O. MOHAMMAD SADIK, AGED ABOUT 53 YEARS, R/AT HOROBANDE VILLAGE, KASABA HOBLI, CHIKKABALLAPUR TALUK AND DISTRICT – 562 101 ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 18.04.2016 VIDE ANNEX-D PASSED BY THE I ADDL. CITY JUDGE & JMFC, CHIKKABALLAPUR, IN O.S.NO.88/2008 ON I.A.4, FILED UNDER ORDER 16 RULES 6 & 7 R/W SEC. 151 OF CPC FOR ISSUE OF WITNESS SUMMONS TO PRODUCE THE ORIGINAL DOCUMENT BY THE SUB-REGISTRAR OF CHIKKABALLAPUR;
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. K.B. Chandrashekara Swamy, learned counsel appearing for the petitioner. Respondent Nos.1 to 4 though served are unrepresented. Perused the records.
2. Petitioner herein has filed the suit O.S.No.88/2008 for declaring her to be the absolute owner of suit schedule property and for perpetual injunction against the defendants and for cancellation of partition cum release deed dated 19.04.2001 on the ground that said document is sham, forged and concocted and has come into existence fraudulently by impersonating the plaintiff and for recovery of possession of plaint schedule properties and other consequent reliefs.
3. Defendants have appeared and filed their written statement. First defendant has appeared and filed the written statement. Though other defendants have been served with the suit summons they are said to have not filed the written statement.
4. On the basis of pleadings of parties trial court has framed issues on 02.06.2014. As could be seen from the issues so framed, burden of proving issue Nos.4 and 8 has been cast on the plaintiff. Said issues read as under:
“4. Whether plaintiff proves that the partition deed dated 19.04.2001 is not binding upon plaintiff’s share?
8. Whether the plaintiff is entitled for the relief of cancellation deed dated 19.04.2001 as prayed for?”
It is in this background, plaintiff has tendered her evidence by filing affidavit of examination-in-chief and has also been cross-examined. However, on account of her incoherent speech while in witness box, trial court has recorded on 27.11.2015 that it is not possible to record her cross-examination since her speech is slurred and not clear and hence, her cross examination has been taken as NIL.
5. Be that as it may. Plaintiff filed an application under Order 16 Rule 6 and 7 read with Section 151 CPC to summon the Original Registration Book pertaining to registered partition deed cum release deed dated 16.04.2001 registered on 19.04.2001 in the Office of Sub-Registrar, Chikkaballapur, registered in Book No.I, Volume No.1755 at pages 60 to 63 registered as No.129/2001-02, since the burden of proving issue Nos.4 and 8 was on her. Trial court has rejected the said application by impugned order on the ground that plaintiff has not sought for comparison of her signature with the signature found on the release cum partition deed dated 16.04.2001 (registered on 19.04.2001). However, perusal of application filed by the plaintiff before trial court, which is at Annexure-C, would disclose that plaintiff had sought for comparison of thumb impression found on disputed document with that off her admitted thumb impression to be taken in open Court. As such, trial court was not justified in rejecting the application on the ground of plaintiff having not sought for comparison of her left thumb impression found on disputed document.
6. Since the very foundation of plaintiff as could be seen from the plaint averments to dispute the document namely, registered partition deed cum release deed is on the basis that same is the outcome of fraud. Hence, trial Court has rightly framed issue Nos.4 and 8 and has cast the burden on plaintiff to prove the same. In order to establish said two issues, summoning of document would be essential. However, trial Court has erroneously held that there was no prayer sought for by the plaintiff to the effect that comparison of thumb impression found on the disputed document i.e., registered release deed cum partition deed with admitted thumb impression is not sought for, though application filed by plaintiff would itself indicate otherwise namely, an omnibus prayer has been made by the plaintiff. Hence, this Court is of the considered view that impugned order cannot be sustained. However, liberty is also granted to the plaintiff to file an independent application, if so advised.
7. For the reasons aforestated, I proceed to pass the following:
ORDER (i) Writ petition is hereby allowed.
(ii) Order dated 18.04.2016 is hereby set aside.
(iii) I.A.No.4 filed under Order 16 Rule 6 and 7 read with Section 151 CPC is restored to file of trial Court for adjudication afresh by keeping in mind the observations made hereinabove.
(iv) Plaintiff would also be at liberty to file application seeking for comparison of her left thumb impression found on the disputed document with that of her admitted left thumb impression and if such application is filed, trial Court shall consider the same keeping in mind observation made hereinabove.
Ordered accordingly.
SD/- JUDGE DR