IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.54238/2018 (GM-CPC) BETWEEN:
1. SRI.SHIVALINGAPPA, S/O CHANDAPPA, AGED ABOUT 69 YEARS, 2. SRI.NANJUNDAPPA, S/O CHANDAPPA, AGED ABOUT 64 YEARS, 3. SRI.PANCHAKSHARI, S/O CHANDAPPA, AGED ABOUT 59 YEARS, ALL ARE RESIDENTS OF GURUPURA EXTENSION, HOLEHONNUR ROAD, SHIVAMOGGA TALUK – 577 201. ... PETITIONERS (BY SRI MAHABALESHWARA RAO K.N., ADV.) AND:
SRI.ABBAS, S/O BABU SAB, AGED ABOUT 40 YEARS, AGRICULTURIST, R/O DADAMAGHATTA VILLAGE, BHADRAVATHI TALUK – 577 301. ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 06.10.2018 ON I.A.NO.3 VIDE ANNEXURE – F IN O.S.NO.548/2014 ON THE FILE OF III ADDL. CIVIL JUDGE & JMFC AT SHIVAMOGGA AND CONSEQUENTLY ALLOW I.A.NO.3 FILED BY THE PETITIONER VIDE ANNEXURE – C AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants filed the present writ petition against the order dated 06.10.2018 on I.A. No.3 made in O.S.No.548/2014 on the file of the III Additional Civil Judge (JD) and JMFC, Shivamogga rejecting the application filed by the defendants under Order 16 Rule 6 r/w 151 of CPC.
2. Respondent who is the plaintiff before the trial Court filed suit for permanent injunction and contended that he is absolute owner and in possession of the vacant site and defendants are strangers and have no manner of right, title or interest in interfering with the peaceful possession and enjoyment of suit schedule property.
3. The defendants filed written statement, denied the plaint averments and contended that defendants are in possession of the land coming in Sy.Nos.26/3 and 26/4. Sy.No.26/3 measuring 3 guntas was originally purchased by the father of the defendants by name G.N. Chandappa under the registered sale deed dated 16.02.1964 measuring 80 X 50 feet etc., and sought for dismissal of the suit.
4. When the matter was posted for cross examination of P.W.1, the defendants filed application under Order 16 Rule 6 read with Section 151 of Code of Civil Procedure to summon the Secretary, Holebenavalli Gramapanchayath, Shivamogga to produce the alleged grant said to have been issued by the Holebenavalli Gramapanchayath in favour of the M/s Mekhala Malnad Khadi and Silks Village Industries Development Association ® Shimoga. The original grant certificate said to have been issued in favour of the previous vendor of the plaintiff is bogus and it was not properly authenticated nor was it issued by the Mandal Panchayath Holebenavalli. The alleged grant certificate was based on the signature of the plaintiff merely forged. The Trial Court after considering the application and objections, by its order dated 6.10.2018 rejected I.A.No.3 filed by the defendants. Hence, this writ petition.
5. I have heard the learned counsel for the petitioners. Sri. Mahabaleshwara Rao, learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the application filed by the defendants under Order 16 Rule 6 read with Section 151 of C.P.C. is erroneous and contrary to material on record.
He further contended that plaintiff claiming to be in possession as the owner of the suit schedule property has pleaded that he has purchased the property from original grantee. In sale deed there is reference that Panchayath has granted the land and therefore the document, if any, is very necessary to dissolve the dispute between the parties. He further contended that the Court below without looking into the pleadings and also without analyzing the necessity of the document rejected the application. Therefore, he sought to allow the writ petition.
6. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiff filed the suit for permanent injunction claiming that he is owner of the suit schedule property in question. The defendants denied the plaint averments and contended that it is for the plaintiff to prove the source of his title before the Court below in a suit filed for permanent injunction. The plaintiff has not produced any documents to show that he was in possession as on the date of the suit filed. When the defendants denied the very plaint averments, it if for the plaintiff to prove his case on the basis of oral and documentary evidence to be adduced and produced at the time of the adjudication of the suit on merits. Application filed by the defendants directing to summon the concerned Panchayath to produce the grant if any itself was not maintainable. In the present case, entire burden lies upon the plaintiff to prove whether he was in possession of the suit schedule property as on the date, the suit filed.
7. The documents now sought by the defendants are not essential documents for adjudication of the case on hand. The entire burden is on the plaintiff to prove his possession to get relief as prayed for. The defendants filed written statement that they are in possession of the suit schedule property, they have to substantiate their version by producing clinching and convincing evidence before the Court below.
In view of the above, impugned order passed by the Trial Court rejecting the application filed by the defendants is just and proper. The petitioner has not made out a case to interference with the impugned order in exercise of power under Article 227 of Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/- JUDGE HR