IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO. 53562 OF 2018 (GM-CPC) BETWEEN: SHIVAPRAKASHA S/O LATE LAKSHMAPPA AGED ABOUT 52 YEARS RESIDING AT TORENURU VILLAGE KUSHALA NAGARA HOBLI SOMAWARAPETE TALUQ KODAGU DISTRICT-571 232 (BY SRI. SURESH S. LOKRE, ADV.) AND 1. PUTTASWAMY S/O LATE LAKKAPPA AGED ABOUT 63 YEARS 2. LAKSHMAMMA D/O LATE LAKKAPPA AGED ABOUT 70 YEARS 3. JAVARAMMA D/O LATE LAKKAPPA AGED ABOUT 74 YEARS 4. GANESHA S/O LATE VENKATAPPA AGED ABOUT 65 YEARS ... PETITIONER 5. LAKSHMAPPA S/O LATE VENKATAPPA 6. CHANDRASHEKARA S/O LATE VENKATAPPA AGED ABOUT 59 YEARS 7. SMT JAYAMMA D/O LATE VENKATAPPA AGED ABOUT 59 YEARS 8. SMT JAYALAKSHMI D/O LATE VENKATAPPA AGED ABOUT 55 YEARS 9. THIMMAPPA S/O LATE THIMMAPPA AGED ABOUT 87 YEARS 10. JAYALAKSHMAMMA W/O LATE LAKSHMAPPA AGED ABOUT 72 YEARS R1 TO R10 ARE RESIDING AT TORENURU VILLAGE KUSHALA NAGARA HOBLI SOMAWARAPETE TALUQ KODAGU DISTRICT-571232 11. PRABHAMANI W/O B PRAKASH KMF AGED ABOUT 50 YEARS D/O LATE LAKSHMAPPA HUTHA COLONY BHADRAVATHI TOWN BHADRAVATHI TALUK SHIMOGGA DIST-577 301 12. GOVINDARAJU S/O LATE LAKSHMAPPA AGED ABOUT 48 YEARS R/AT MULLUSOGE OMKARA BADAVANI KUSHALANAGARA HOBLI SOMWARPET TALUK KODAGU DISTRICT-571 232 13. CHINTHAMANI W/O SURESH LECTURER AGED ABOUT 46 YEARS LIBRARY NO.26, 9A CROSS ROAD 6TH MAIN ROAD, GNANAJOTHI NAGAR ULLALA ROAD BANGALORE-560 056 14. LOKESHA T L S/O LATE LAKSHMAPPA AGED ABOUT 48 YEARS R/AT E-2743, SKANDA NIVAS 1ST CROSS ROAD, 15TH MAIN ROAD E BLOCK, SAHAKARANAGAR WARD NO.7, BEHIND SWATHI GARDENIA BANGALORE-560 092 15. MAHESH S/O LATE LAKSHMAPPA AGED ABOUT 42 YEARS RESIDING AT TORENURU VILLAGE KUSHALA NAGARA HOBLI SOMAWARAPETE TALUQ KODAGU DISTRICT-571 232 ... RESPONDENTS (BY SRI. H C SHIVARAMU, ADV. FOR R1-R8 SRI. MALLANNA K., ADV. FOR R10 TO R15 NOTICE TO R9 IS D/W V/O DT. 25.03.2019) ********* THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER AT ANNEXURE-A BEING THE ORDER PASSED ON I.A.NO.10/2018 IN O.S.NO.26/2016 DTD:29.10.2018 ON THE FILE OF THE SENIOR CIVIL JUDE AND JMFC, ARKALGUDU, HASSAN DISTRICT; ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER I.A.NO.10/2018 IN O.S.NO.26/2016.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
Order The third defendant filed the present writ petition against the order dated 29.10.2018 passed on I.A.No.10 in O.S.No.26/2016 rejecting the application filed by him under Order XVI Rule 6 of CPC to summon the resolution book dated 25.11.2016 of the Torenuru Gram Panchayath and the book signed by the members of the Panchayath Social Justice Committee in the general body meeting.
2. The plaintiffs filed suit for partition and separate possession against the defendants in respect of suit schedule properties contending that the suit schedule properties are joint family properties and there was no partition. The defendants filed written statement denying the averments made in the plaint and contended that there was an earlier partition in the family in the presence of the Panchayath members held in the Gram Panchayath office and the said Panchayath has acted upon the same and relevant revenue entries are also incorporated and hence sought for dismissal of the suit. When the matter was posted for defendant’s evidence, the third defendant filed application under Order XVI Rule 6 of CPC to summon the concerned Panchayath members to produce the resolution book dated 25.11.2016 and Social Justice Committee resolution register contending that they are necessary and proper documents. The said application was resisted by the plaintiffs. The Trial Court considering the application and the objections, by the impugned order dated 29.10.2018, dismissed the said application. Hence, the present writ petition is filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri Suresh S. Lokre, learned counsel for the petitioner – third defendant contended that the impugned order is erroneous and contrary to the material on record. He would further contend that it is the specific case of the defendants in the written statement that there was an earlier partition in the joint family in the presence of Panchayath members in the office of the concerned Gram Panchayath and same has been acted upon . Therefore, the Trial Court ought to have allowed the application and summoned the concerned Panchayath to produce the documents as sought for. Therefore, he sought to allow the writ petition.
5. Per contra, Sri H. C. Shivaramu, learned counsel appearing for the respondent Nos.1 to 8 sought to justify the impugned order and contended that admittedly the documents sought to be produced are no way relevant to the suit filed by the plaintiff for partition. The Trial Court is justified in rejecting the application and hence he sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is an undisputed fact that the respondents who are the plaintiffs before the Trial Court filed the suit for partition and separate possession. The same is resisted by the defendants contending that there was an earlier partition and hence the suit is not maintainable. The Trial Court, considering the application and objection, by the impugned order has recorded a finding that strangely enough, third defendant is seeking to produce the resolution book dated 25.11.2016 held in the general body meeting of the Gram Panchayath and the book signed by the members of Panchayath and to lead evidence on those documents. Admittedly, the suit schedule property is a survey number land. In what way the production of those documents and the evidence of witness are relevant for arriving at the just conclusion, is not disclosed. Third defendant has to establish the semblance of relevancy. A party is entitled to call for documents and to examine the witness unless the court holds that the application lacks bonafides. Otherwise the court cannot refuse to examine witness. No valid reasons are assigned as to how the documents proposed to be produced are relevant for the purpose adjudicating the issues that has arisen in this suit for partition. Accordingly the application was rejected.
7. The material documents clearly depicts that according to the plaintiffs there was no partition and according to the defendants, there was partition. If really there was a partition held in the presence of concerned Gram Panchayath members, there was no impediment for the third defendant to file an application for a certified copy of such resolution effecting partition. The third defendant has not availed said opportunity and it is also not in dispute that some of the members of the Gram Panchayath are already summoned before the court. It is for the defendants to elicit about the alleged partition from the mouth of the concerned members of the Gram Panchayath about the plea of partition as alleged.
8. In view of the above, the impugned order passed by the Trial Court dismissing the application under Order XVI Rule 6 of CPC is just and proper. The petitioner has not made out any ground to interfere with the same in exercise of power under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
9. It is always open for the defendants to apply for the certified copy of the said resolution in the Gram Panchayath and produce the same in accordance with law.
Sd/- Judge RD