IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.53410/2017 (GM-CPC) BETWEEN:
1. SMT. ANITHA K.S. W/O.VIGNESHWARAPPA, D/O.KANTALATIRMA, AGED ABOUT 29 YEARS, HOUSEHOLD WORKER, R/O. KARATE VILLAGE, HONNALLI TALUK, DAVANGERE DISTRICT – 577 101 2. CHANNAMMA W/O.ERANAGOWDA HITTALAMANI, D/O.BASAMMA, AGED ABOUT 36 YEARS, HOUSEHOLD WORKER, R/O ARTAJI VILLAGE, HIREKERUR TALUK, HAVERI DISTRICT- 578 101 ...PETITIONERS (BY SRI. VIGNESHWAR S. SHASTRI, ADVOCATE) AND:
1. HALESHKUMAR K.S. S/O.SURENDRAPPA & KAMALAMMA, AGED ABOUT 27 YEARS, AGRICULTURIST, R/O. KAGINELE VILLAGE, SHIKARIPURA TALUK, SHIMOGGA DISTRICT-576 101 2. GADIGEPPA PALYAD S/O. LATE BASAPPA & GOWRAMMA, AGED ABOUT 55 YEARS, AGRICULTURIST, R/O. VASANA VILLAGE, HARIHAR TALUK, DAVANGERE DISTRICT – 577 101 3. SHARADAMMA W/O.MUDIGOWDA D/O.GOWRAMMA, AGED ABOUT 51 YEARS, AGRICULTURIST, R/O. UKKADAGATHRI VILLAGE, HARIHAR TALUK, DAVANGERE DISTRICT 577 101 4. BASAVARAJAPPA S/O KARIBASAPPA GANGAMMA AGED ABOUT 58 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 5. G KUBERAGOWDA S/O LATE GADIGEPPA AGED ABOUT 31 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 6. G SHIVAKUMAR S/O LATE GADIGEPPA AGED ABOUT 29 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 7. G MADHURAJA S/O LATE GADIGEPPA AGED ABOUT 27 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 8. CHANDRAPPA S/O LATE KARIBASAPPA & GANGAMMA AGED ABOUT 51 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 9. VASANTH KUMAR S/O LATE KARIBASAPPA & GANGAMMA ADOPTED SON OF TIRUKAPPA S/O VEERABHADRAPPA AGED ABOUT 49 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 10. SATISH S/O LATE KARIBASAPPA & GANGAMMA AGED ABOUT 41 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 11. THIMMENAHALLI TIRUKAPPA S/O LATE VEERABHADRAPPA AGED ABOUT 73 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 12. K GADIGEPPA S/O LATE HALAPPA & BASANUNA AGED ABOUT 51 YEARS AGRICULTURIST R/O HINDASAGATTA VILLAGE HARIHAR TALUK DAVANGERE DISTRICT 13. LALITHAMMA K W/O K CHANDRAPPA D/O BASAMMA AGED ABOUT 39 YEARS HOUSEHOLD WORKER R/O KAGINELE VILALGE SHIKARIPURA TALUK SHIMOGGA DISTRICT 14. K GADIGEPPA S/O RINDAPPA AGED ABOUT 46 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 15. KEMPAIAH S/O LATE SHIVALAYYA AGED ABOUT 66 YEARS R/O HOSA PALYA VILLAGE KADARA NAVAKANAHALLI POST HARIHAR TALUK DAVANGERE DISTRICT 16. K KARIBASAPPA S/O LATE SANGAPPA AGED ABOUT 55 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 17. K MALLAPPA S/O LATE SANGAPPA AGED ABOUT 50 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 18. SHIVAPPA K S/O LATE SANGAPPA AGED ABOUT 46 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 19. B VASANTHAPPA S/O LATE BASAPPA AGED ABOUT 46 YEARS AGRICULTURIST R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 20. B NANJAPPA S/O LATE BASAPPA B AGED ABOUT 51 YEARS DRIVER IN KSRTC R/O VASANA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 21. DHARMAPPA S/O KARIBASAPPA HOTTIBASAPPALARA AGED ABOUT 46 YEARS AGRICULTURIST R/O HOSAPALYA VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT 22. SMT PAVITHRA W/O DHARMAPPA AGED ABOUT 39 YEARS HOUSEHOLD WORKER R/O HOSA PALYA VILALGE HARIHAR TALUK DAVANGERE DISTRICT ...RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.31.8.2017 PASSED ON I.A.NO.10 IN O.S.NO.27/2015 ON THE FILE OF SENIOR CIVIL JUDGE AT HARIHARA AS PER ANNEX-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.Vigneshwar S. Shastri, learned counsel appearing for petitioners. Perused the records.
2. Petitioners have filed the suit O.S.No.27/2015 for partition and separate possession of suit schedule properties contending that said properties are joint family properties. On service of suit summons, 10th defendant appeared, filed written statement and denied the averments made in the plaint and has contested the suit. Some of the defendants who are purchasers of portion of suit properties have also contested the suit.
3. On the basis of pleadings of parties trial Court has framed issues. Certified copy of issues framed on 18.08.2016 has been made available by the learned counsel appearing for petitioners during the course of his submission. This Court has perused the same. As could be seen from the issues framed, burden of proving that item Nos.5, 7, 8, 9, 10 and 11 to 13 has been sold to defendant No.1, Yellappa s/o. Basappa, defendant No.14 and father of defendant Nos.15 to 17 respectively, is cast on 10th defendant. Said 10th defendant filed an application under Order III Rule 2 CPC to examine his adopted son to whom he has given special power of attorney to depose in the suit in question. Said application has been opposed to by the writ petitioners namely, plaintiffs contending that whole case of plaintiffs rests on the personal knowledge of 10th defendant and if 10th defendant were to appear through his power of attorney holder, it would prejudice their case. It is also contended by Sri.Vigneshwar S.Shastri, learned counsel for petitioners that trial Court without considering the objections filed in detail, has proceeded to allow the said application by permitting 10th defendant to examine his adopted son in the instant case. Hence, he prays for setting aside the impugned order.
4. There cannot be any dispute to the proposition of law that an agent can depose on behalf of principal in respect of acts which are within his knowledge. Hence, if the agent on behalf of principal were to depose facts, which are not within his personal knowledge, necessarily such evidence would not be considered or examined by the Courts. As to whether facts deposed by the agent are facts which are not within the personal knowledge of agent, can be examined only after such evidence is available on record. At this stage, no opinion can be expressed in that regard, inasmuch as, adopted son of 10th defendant whom he has proposed to examine in the instant case, is yet to tender his evidence.
5. In that view of the matter, without expressing any opinion with regard to evidence that may be tendered by the power of attorney holder of 10th defendant or its value, this petition is dismissed since trial Court has rightly observed that power of attorney holder can only depose the facts which are within his knowledge.
Subject to observations made hereinabove, writ petition stands dismissed.
SD/- JUDGE DR