IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JUNE, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.25817/2017 AND WRIT PETITION NOS.25818-25819/2017(GM-CPC) BETWEEN:
SMT. ASHWATHAMMA, W/O JAYARAMAIAH, D/O LATE B. BYANNA, AGED ABOUT 63 YRS, R/AT NO.27, 3RD CROSS, 1ST MAIN, RMV 2ND STAGE, BANGALORE-560 094.
... PETITIONER (BY SRI YESHU MISHRA, ADVOCATE) AND:
1. SRI B. V. THAMMAIAH, S/O LATE T. VENKATASWAMAPPA, AGED ABOUT 64 YEARS, 2. SRI B. V. NARAYANASWAMY S/O LATE T. VENKATASWAMAPPA, AGED ABOUT 58 YEARS, 3. SRI B. V. JAYARAM, S/O LATE T. VENKATASWAMAPPA, AGED ABOUT 52 YEARS, RESPONDENTS NO.1 TO 3 ARE RESIDENTS OF DASAPPANAPALYA, CHIKKABANAVARA VILLAGE, BANGALORE NORTH TALUK-560 090.
4. SRI M. NARASIMHA MURTHY, S/O LATE T. MUNISWAMPPA, AGED ABOUT 64 YEARS, 5. SRI M. NAGARAJ, S/O LATE T. MUNISWAMAPPA, AGED ABOUT 55 YEARS, 6. SRI M. VENKATESH, S/O LATE T. MUNISWAMAPPA, AGED ABOUT 50 YEARS, RESPONDENTS NO.4 TO 6 ARE RESIDENTS OF DASAPPANAPALYA, CHIKKABANAVARA VILLAGE, YESHWANTHPURA HOBLI, BANGALORE NORTH TALUK-560 090.
7. SRI KESHAVALAL G. PAKUR, S/O GOPAL PAKUR, MAJOR, SHRI GANESHA SAW MILL, NO.58/1, TUMKUR ROAD, T. DASARAHALLI, NEAR OLD TOLL GATE, BANGALORE-560 057.
8. SRI T. M. LALA, MAJOR, SY NO.32/2, CHIKKASANDRA VILLAGE, BEHIND RAILWAY STATION, YESHWANTHPURA HOBLI, BANGALORE NORTH TALUK.
9. SRI MANJUNATHA, MAJOR, LORRY DRIVER, SY NO.32/2, CHIKKASANDRA VILLAGE, BEHIND RAILWAY STATION, YESHWANTHPURA HOBLI, BANGALORE NORTH TALUK.
10. SRI MANJUNATHA, MAJOR, WORKING IN PLD BANK, SY NO.32/2, CHIKKASANDRA VILLAGE, BEHIND RAILWAY STATION, YESHWANTHPURA HOBLI, BANGALORE NORTH TALUK.
11. SMT. PADMA, MAJOR, W/O M. K. MANJUNATHAMURTHY, LAKSHMIPURA 1ST CROSS, ARASIKERE TOWN, HASSAN DISTRICT.
12. SRI M. K. MANJUNATHAMURTHY, MAJOR, S/O LATE A. KRISHNAPPA, LAKSHMIPURA 1ST CROSS, ARASIKERE TOWN, HASSAN DISTRICT, 13. SRI HANUMANTHAPPA, MAJOR, S/O MUNIYAPPA, DODDATHUMAKUR, MADURAI HOBLI, DODDABALLAPURA TALUK.
14. SMT. M. D. VEENAMBA, MAJOR, W/O T. P. GOMASUDEVAIAH, NO.198, 8TH CROSS, 8TH MAIN, HARIHARESHWARA VILLAGE, MSR NAGAR, BANGALORE-560 054.
... RESPONDENTS (BY SRI T. SESHAGIRI RAO, ADVOCATE FOR C/R1-R6) **** THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE IMPUGNED ORDER ON I.A.28 TO 30 IN O.S.7403/1994 DATED 7.6.2017 ON THE FILE OF I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT ANNEXURE-A AND ALLOW THESE WRIT PETITIONS.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The present writ petitions are filed by the plaintiff against the order dated 7th June 2017 on I.A. Nos.28 to 30 made in O.S. No.7403/1994 dismissing the said applications.
2. The plaintiffs filed O.S. No.7403/1994 for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendant Nos.1 to 6 and therefore they are entitled to partition as prayed in the plaint. The defendant Nos.1 to 6 filed the written statement and contended that there was already a partition in the year 1989 and hence the very suit filed by the plaintiffs for partition is not maintainable and therefore sought for dismissal of the suit.
3. After completion of evidence on both the sides, when the matter was posted for arguments, at that stage, I.A. Nos.28 to 30 were filed by the plaintiff.
4. I.A. No.28 is filed under Order 26 Rule 10A read with Section 151 of CPC for appointment of handwriting/finger print expert for comparing signatures of defendant Nos.1 to 6 and thumb impression of late Muniswamappa on Ex.P33 and signatures of defendant Nos.4 to 6 and thumb impression of late Muniswamappa on Ex.P19 and signatures of defendant Nos.1 to 3 on Ex.P20 with the admitted signatures of defendant Nos.1 to 6 and admitted thumb impression of late Muniswamappa and give report, since the signatures and the said documents were denied by the defendants. It is also contended that the Court has got power to verify itself the signatures of defendants 1 to 6 and thumb impression of late Muniswamappa on the said documents – Ex.P33, Ex.P19 and Ex.P20 with the admitted signatures of defendant Nos.1 to 6 and the admitted thumb impression of late Muniswamappa.
5. I.A. No.29 is filed under Section 151 of CPC to re-open the case of the plaintiff and permit the plaintiff to examine the witnesses in support of her case.
6. I.A. No.30 is filed under Order 16 Rules 1 and 2 read with Section 151 of CPC to permit the plaintiff to file list of witnesses to examine the witnesses in support of her case.
7. The said applications - I.A. Nos.28 to 30 were resisted by the defendants by filing common objections contending that there was already partition and the suit filed is not maintainable. Further, inspite of direction issued by this Court in CRP No.312/2016 dated 3.3.2017 directing disposal of the suit itself on or before 30.6.2017, the plaintiff has filed I.A. Nos.28 to 30 only to protract the proceedings in the present suit which is of more than 23 years old. Therefore sought for dismissal of the applications.
8. The trial Court considering the applications and objections, by the impugned order has dismissed the said applications. Hence, the present writ petitions are filed.
9. I have heard the learned Counsel for the parties to the lis.
10. Sri Yeshu Mishra, learned Counsel for the petitioner-plaintiff vehemently contended that the impugned order passed by the trial Court rejecting the applications – I.As. 28 to 30 is erroneous and contrary to the material on record. He further contended that in the suit filed by the petitioner-plaintiff for partition and separate possession, the defendants though have not disputed the relationship and joint family properties, but have contended that there was a partition. The same is disputed by the plaintiff contending that there was Koutumbika Oppandada Kararu Pathra by the defendants. Therefore, the trial Court ought to have considered the applications for appointment of handwriting and finger prints expert to identify the signatures of defendant/respondent Nos. 1 to 6. He further contended that in order to substantiate her case for partition, the petitioner-plaintiff wanted to examine one witnesses. Therefore, an application seeking re-opening of the plaintiff’s case to examine one more witness was filed, but the trial Court without giving an opportunity to her to establish her case has dismissed the same. Therefore, he sought for quashing of the impugned order passed by the trial Court by allowing the present writ petitions.
11. Per contra, Sri T. Sheshagiri Rao, learned Counsel for caveator/defendant/respondent Nos. 1 to 6 sought to justify the impugned order passed on I.As. 28 to 30 strenuously contending that the suit is filed as long back as in the year 1994 and even after the lapse of 23 years, the plaintiff has not filed any application within time and now at the stage, when the matter is posted for arguments, the petitioner-plaintiff has filed an application belatedly which is nothing but protracting the proceedings. He further contended that the said suit is filed by the petitioner- plaintiff for partition and separate possession and it is for the plaintiff to establish her case based on oral and documentary evidence adduced and produced by the both parties and there is no necessary for referring the disputed signatures to the hand writing expert to conduct scientific investigation as alleged by the petitioner-plaintiff. Therefore, he sought to dismiss the applications filed by the petitioner-plaintiff.
12. Having heard the learned Counsel for the parties to the lis, the only point that arise for consideration in the present writ petition is:
Whether the impugned order passed by the trial Court rejecting I.As. 28 to 30 filed under Section 151 of the CPC for re- opening of the case and under Order XVI Rules 1 and 2 of CPC for examining of witness and Order XXVI Rule 10A of CPC for referring the disputed signatures to the handwriting expert is just and proper in the facts and circumstances of the present case?
13. I have given my anxious consideration to the arguments advanced by the learned Counsel for both parties and perused the entire material on record carefully.
14. It is an undisputed fact that the petitioner-plaintiff filed the suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the joint family properties and the petitioner-plaintiff and respondents-defendants are entitled for their share. The said averments made in the plaint had been in toto denied by the defendants/respondents contending that there was an oral partition and therefore, the suit is not maintainable. It is also not in dispute that the both parties have led in evidence and produced material documents, which have been marked before the trial Court and when the matter was posted for arguments on 28.4.2017, at that stage, these applications are filed by the petitioner-plaintiff. When all the documents produced before the Court are marked, it is for the Court to consider the oral and documentary evidence on record and decide the controversy between the parties based on the evidence on record. The suit is filed as long back as in the year 1994, more than 23 years has elapsed. Unfortunately, the suit is not disposed of at the intervention of both the parties to the lis. Since the suit is for partition, the petitioner-plaintiff has to establish her case that the suit schedule properties are the joint family properties and all the plaintiff and defendant Nos. 1 to 6 are the members of the joint family. If there is any dispute with regard to signatures relied upon by the petitioner-plaintiff and documents relied upon by the respondents-defendants, it is for the Court to look into both oral and documentary evidence and if there is any dispute with regard to signatures, it is always open for the Court to compare the disputed signatures with that of the admitted signatures of the parties in exercise of powers under Section 73 of the Indian Evidence Act. In view of the same, the point raised in the present writ petition is answered in the affirmative holding that the impugned order passed by the trial Court dismissing the applications is just and proper.
15. The trial Court considering the entire material both oral and documentary evidence on record has recorded a finding that the petitioner-plaintiff has filed a suit for partition claiming 1/3rd share in the suit schedule properties and also declaration of release deed dated 31.10.1989 and compromise petition filed earlier in O.S.No.5479/1989 as cancelled. The petitioner-plaintiff is claiming partition as coparcener. The document – Kautumbika Oppandada Kararu Patra’ is not a suit document. It is only a supplementary document upon which the petitioner-plaintiff contended that the respondents-defendants conceded their right. But since the petitioner-plaintiff is claiming partition as co-parcener, this document i.e., Kautumbika Oppandada Kararu Patra has nothing to do with her claim. Further, it has noted that the petitioner-plaintiff though has undertaken before this Court in CRP No.312/2016 to complete her evidence on or before 25.3.2017, the same has not complied. Instead, she has filed the present applications to lead further evidence by re-opening the case and for referring the document for expert opinion. But as it has already stated that the document has nothing to do with the claim of the petitioner-plaintiff, if she is able to prove the release deed and compromise entered in earlier suit are liable to be cancelled and there is no need to allow the present applications. Accordingly, applications are dismissed.
16. For the reasons stated above, the point raised in the present writ petitions is answered in the affirmative holding that the trial Court was justified in dismissing I.As. 28 to 30 filed by the plaintiff-petitioner.
17. The material documents clearly establish that there is a dispute with regard to partition and according to the respondents-defendants, there was a partition. The Court has to proceed and decide the suit based on both oral and documentary evidence on record and if there is any dispute between either of the plaintiff or defendants, the Court has to exercise its powers under Section 73 of the Indian Evidence Act to compare the disputed signatures with that of the admitted signatures and to pass judgment and decree in accordance with law.
For the reasons stated above, the petitioner-plaintiff has not made out any ground to interfere with the impugned order passed by the trial in exercise of supervisory powers under Article 227 of the Constitution of India. Accordingly, writ petitions are dismissed.
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