IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.32267/2014(GM-CPC) BETWEEN MR KAREGOWDAPPA S/O BASAVANAGOWDA AGED ABOUT 65 YEARS RESIDENT OF MUDAHADADI VILLAGE DAVANAGERE TALUK-577 002. ... PETITIONER (BY SRI MUHAMMAD SHAMIL FOR SRI P.B.AJIT, ADVOCATES) AND MR KARIBASAPPA S/O MAHADEVAPPA AGED ABOUT 60 YEARS RESIDENT OF MUDAHADADI VILLAGE DAVANAGERE TALUK-577 002. ... RESPONDENT (BY SRI DEEPASHREE, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 3.2.2014 IN O.S.NO.405/2009 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, DAVANAGERE (ANNEXURE-H) I.A.NO.11 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Defendant in OS.No.405/2009 on the file of Additional Civil Judge, Davanagere, has come up in this writ petition impugning the order dated 3.2.2014 passed on IA.11 filed under Order 11 Rule 14 of CPC by the plaintiff in the said suit. The parties herein are referred to by their rank in the court below.
2. Admittedly, suit in OS.No.405/2009 is for the relief of declaration that the plaintiff is the owner in possession of suit schedule property, which is measuring to an extent of 1 acre 26 guntas out of 4 acres 36 guntas in Re.Sy.No.6/3 of Mudahadi village, Davanagere Taluk. The fact that the plaintiff and defendant are members of the same family is not in dispute. It is also not in dispute that the plaintiff’s father and defendant’s father are brothers. However, when it comes to plaintiff, he is the only son to his father whereas, defendant is adopted son of his father.
3. The material on record would indicate that there was partition in the family of the plaintiff’s father and defendant’s father, wherein the properties of the family were divided between them under a partition which has taken place in the year 1976. However, it is the case of the plaintiff that subsequently on 21.11.1981 there was a further partition in the family, in which the suit schedule property has come to the share of plaintiff, as such he is in possession, cultivation and enjoyment of the same.
4. In the said suit, the defendant filed written statement, wherein he would deny the further partition which has taken place in the family and would state that suit schedule property is in his possession and cultivation for more than 30 years. According to him, when he was adopted to his father, he was aged about 3 years and in the year of adoption itself his adoptive father died, thereafter, he continued to be in the said family along with his mother. Subsequently, when the proceedings in the court below reached the stage of trial, the defendant in his evidence would state that his father has created a document in conveying all the properties that are given to him in the partition, the said document was given to the defendant and the same which was available with him was given to his Lawyer at the time of filing of written statement. In fact, based on such statement in the evidence of defendant, the plaintiff filed the application in IA.11 calling upon the defendant to produce the said document.
5. Now what is to be seen in this background is, admittedly there are two partitions referred to by the parties and the admission is not specifically with reference to which of the partitions is reduced in to writing. Even assuming that there was some partition which was reduced in to writing, how far the statement of the defendant in his evidence is correct cannot be understood for the reason that in one place he would state that he was aged about 3 years when he was taken in adoption and that his father died within one year of his adoption, subsequently in another place he would state that his father had executed certain documents and had given it to him, which was with him. When he was 3 years old, how could he know that a document was prepared by his father and was given it to his custody, it is something which this Court cannot accept and understand. Be that as it may.
6. Now, in the absence of evidence showing the exact date of partition which is referred to and accepted by the defendant in his evidence, which of the documents is called for by the plaintiff is also not forthcoming. Therefore, in the fact situation, it is open for the court below to take appropriate steps to ensure that the relevant document would come on record. However, at this juncture this Court would observe that in the event of document not coming forth, it is open for the court below to put to test the defence raised by the defendant in his written statement where he would state that the father of the plaintiff has given a report in accepting the registration of revenue entry in the name of defendant when he was alive. If necessary steps are to be taken by the parties to secure the original file with reference to the proceedings of katha of the property in question to the name of the defendant, whether such report is given by the plaintiff’s father for registering katha of the property in question in the name of defendant and by that the defendant’s statement could be established by him, they can exercise such option otherwise, the court below can take appropriate decision with reference to the suit prayer of the plaintiff and defence raised by the defendant in accordance with law on merits of the case as it can observe in the course of trial.
With such observations, this writ petition is disposed of.
Sd/- JUDGE nd/-