IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.31514/2018(GM-CPC) BETWEEN:
1. SRI SHIVANNA S/O DODDAEGOWDA, AGED ABOUT 80 YEARS, 2. SRI SHANMUKA S/O SHIVANNA, AGED ABOUT 50 YEARS, 3. SMT. ASHA W/O SHANMUKA, AGED ABOUT 48 YEARS, ALL ARE RESIDING AT ABBANAGHATTA VILLAGE, GANDASI HOBLI, ARSIKERE TALUK, HASSAN -573119.
... PETITIONERS (BY SRI K G SADASHIVAIAH, ADVOCATE) AND:
1. SMT. KUSHALAMMA, W/O GANGADHARAPPA, D/O DODDAEGOWDA, AGED ABOUT 55 YEARS, R/AT GUDIGONDANAHALLI, KASABA HOBLI, TIPTUR TALUK, TUMKUR DISTRICT-572201 2. SRI DHANAPPA S/O BASAVALINGAPPA, AGED 53 YEARS, 3. SRI KANTHARAJU S/O BASAVALINGAPPA, AGED 48 YEARS, 4. SRI RAVEESH S/O BASAVALINGAPPA, AGED 44 YEARS, RESPONDENTS 2 TO 4 ARE RESIDING AT ABBANAGHATTA VILLAGE, GANDASI HOBLI, ARSIKERE TALUK, HASSAN-573119.
5. SMT. SULOCHANA W/O SHANTHAKUMAR, D/O BASAVALINGAPPA, AGED 51 YEARS, 6. SMT. CHANDRAMMA, W/O LINGAPPA, D/O DODDAEGOWDA, AGED 70 YEARS, 7. SRI SIDDAPPA S/O DODDAEGOWDA, AGED 62 YEARS, 8. SRI NATARAJU S/O DODDAEGOWDA, AGED 53 YEARS, RESPONDENTS No.5 TO 8 ARE RESIDING AT HENJAGONDANAHALLI, KASABA HOBLI, ARSIKERE TALUK, HASSAN DISTRICT-573103.
... RESPONDENTS (BY SRI M. K. GIRISH, ADVOCATE FOR R1;
NOTICE TO R3 IS DISPENSED WITH VIDE ORDER DATED 18.03.2019; R2, R4 TO R8 ARE SERVED, BUT UNREPRESENTED) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC., ARASIKERE ON I.A.NO.35 IN O.S.NO.17/2013 DATED 16.07.2018 AS PER ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners – defendant Nos.1 to 3 filed the present writ petition against the order dated 16.7.2018 on I.A. No.35 made in O.S. No.17/2013 on the file of the Senior Civil Judge & JMFC, Arsikere rejecting the application filed by the defendant Nos.1 to 3 under Section 75 r/w Order 26 Rule 10A of the Code of Civil Procedure.
2. The 1st respondent – plaintiff filed the suit for partition and separate possession contending that the suit schedule properties are the joint family properties of the plaintiff and the defendants and there was no partition and therefore she is entitled to share. The defendants filed the written statement and denied the plaint averments and contended that there was partition in the family on 9.5.1979 and therefore the very suit filed by the plaintiff for partition is not maintainable and sought for dismissal of the suit.
3. After completion of the evidence, when the matter was posted for arguments, at that stage, the defendant Nos.1 to 3 filed an application under Section 75 r/w Order 26 Rule 10A of the Code of Civil Procedure, to send the partition deed – Ex.P9 to compare the signature of the witness by name Ningappa in the said partition deed with the signatures in the other exhibited documents – Ex.P10 and Ex.P11 and to give report regarding the signature, contending that the 1st defendant is the son of late Doddegowda through his 1st wife - Chikkamma and further the plaintiffs & defendant Nos.9 and 10 are the sons and daughters of late Doddegowda through the 3rd wife Rudramma. Further, there was a division on 9.5.1979 among late Doddegowda, late Hanumappa and one Shivanna, who is the first son of Doddegowda. The original partition deeds were with Doddegowda and Hanumappa. After the death of Doddegowda, original document was with defendant Nos.9 and 10 and other one was with Hanumappa and after his death is with Shashidhara, who is the grandson of Hanumappa. The plaintiff has denied the partition deed and signatures of the parties and the witnesses. Therefore sending the matter to the handwriting expert is necessary. The said application was resisted. The trial Court considering the application and the objections by the impugned order dated 16.7.2018 rejected the application. Hence the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri K.G. Sadashivaiah, learned counsel for the petitioners – defendant Nos.1 to3 contended that the impugned order passed by the trial Court rejecting the application filed by the defendants 1 to 3 under Section 75 r/w Order 26 Rule 10A of the Code of Civil Procedure, is erroneous and contrary to the material on record. He would further contend that the Court below failed to notice that the issue involved in the suit is as to whether there was a severance of status in the family, by virtue of the unregistered partition deed dated 9.5.1979 and the burden was on the petitioners to prove the said document. If the burden is not proved, the petitioners are at risk to share the properties which were divided about more than 30 years ago. He would further contend that there was no delay on the part of the petitioners in conducting the case. In fact, the respondent Nos.4 to 10 also belong to the family of the 1st respondent who have not cooperated in filing the written statement and contesting the matter, which fact lost sight of the trial Court and resulted in passing the impugned order. He would further contend that the trial Court erred in rejecting the application mainly on the ground that to prove the signature of Ningappa, already there is sufficient material available on record and basically the document dated 9.5.1979 is not registered document and proof of the contents of the registered document as contained in the Evidence Act cannot be strictly pressed into service. Therefore he sought to allow the writ petition.
6. Per contra, Sri M.K. Girish, learned counsel for the Respondent No.1 sought to justify the impugned order passed by the trial Court and contended that there is sufficient material available on record to prove the signature of Ningappa on the alleged unregistered partition deed dated 9.5.1979. Therefore he sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is the specific case of the plaintiff that the suit schedule properties are the joint family properties of the plaintiff and the defendants and there was no partition. According to the defendants, the partition took place among the family members as per the unregistered partition deed dated 9.5.1979 and the suit is not maintainable. On the application filed by the defendants to send the partition deed – Ex.P9 to compare the signature of witness by name Ningappa with the other exhibited documents – Ex.P10 and Ex.P11 and to get the report, the trial Court was of the considered opinion that since the witness to partition deed viz., Ningappa has died, to prove his signature, the defendants have produced materials as per law. The trial Court recorded a finding that the 2nd defendant contended in the application that the plaintiff has denied the signature of the parties and witnesses. But, it is noticed that after Ex.D4, partition deed was produced on 16.10.2017. PW.1 is being cross-examined, wherein the signatures are not confronted to him. So, the said contention of the 2nd defendant cannot be accepted. To prove the signature of Ningappa, already there is sufficient material available on record. Basically the said document dated 9.5.1979 is not registered document and the proof of the contents of the registered document as contained in the Evidence Act cannot be strictly pressed into service. Considering the fact that the matter is of the year 2013 and there is already sufficient materials available on record and considering that the proceedings have already reached the stage of arguments, the trial Court was of the opinion that the application cannot be entertained and accordingly rejected the application.
8. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. The petitioners have not made out any ground to interfere with the impugned order in exercise of the power under Article 227 of the Constitution of India.
9. Accordingly, the writ petition is dismissed.
However, it is needless to observe that the trial Court recorded a finding that to prove the signature of Ningappa, already there is sufficient materials available on record. Therefore, in case, the trial Court finds any difficulty at the time of adjudication of the suit, it is always open for the trial Court to compare the admitted and disputed signatures under the provisions of Section 73 of the Indian Evidence Act. If the trial Court finds any difficulty to compare the signatures, the Court can suo motu appoint any expert to compare the disputed and admitted signatures under Section 45 of the Indian Evidence Act.
Ordered accordingly.
Sd/-
JUDGE Gss/-