Sri Nagaraja @ Nagaiah vs Sri. K E. Basavarajaiah
2022 Latest Caselaw 1513 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF FEBRUARY, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
         WRIT PETITION NO.35358 OF 2015 (GM-CPC)
BETWEEN:
SRI NAGARAJA @ NAGAIAH
S/O DODDAMMA AND ERANNA
AGED ABOUT 40 YEARS
R/O MALLASANDRA - 572 101
TUMKUR TALUK
TUMKUR DISTRICT.
                                             ...PETITIONER
(BY SRI V.B SIDDARAMAIAH, ADVOCATE)

AND:
1.     SRI K.E. BASAVARAJAIAH
       S/O GANGAMMA AND ERANNA
       AGED ABOUT 40 YEARS
       R/O KADEGOWDANAHATTI
2.     SRI K.E. SHIVAKUMAR
       S/O GANGAMMA AND ERANNA
       AGED ABOUT 28 YEARS
       BOTH ARE R/AT KADEGOWDANAHATTI
       SOMPAUR POST
       GUBBI TALUK - 572 216
       TUMKUR TALUK AND DIST.
3.     ERANNA
       S/O DASAPPA
       AGED ABOUT 66 YEARS
       R/O MALLASANDRA - 572 101
       TUMKUR TALUK, TUMKUR DISTRICT.
                                  2



4.   SHIVAMMA
     W/O ERANNA
     AGED ABOUT 51 YEARS,
     R/O BELADHARA GOLLAHATTI
     KORATAGERE TALUK - 572 129
     TUMKUR DISTRICT.
                                                ...RESPONDENTS
(BY SMT. MONICA PATIL FOR
 SRI. SURAJ PATIL, ADVOCATES FOR R1 & R2;
 NOTICE TO R3 & R4 DISPENSED WITH)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 25.07.2015, PASSED IN O.S.NO.78/1999 PASSED
BY THE LEARNED 2ND ADDL. SENIOR CIVIL JUDGE AND JMFC,
TUMKUR, PASSED ON I.A., FILED UNDER ORDER 16 RULE-6 OF
CPC VIDE ANNEX-E AND CONSEQUENTLY ALLOW THE I.A., VIDE
ANNEX-C.


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING     IN    'B'   GROUP,   THIS   DAY,   THROUGH       VIDEO
CONFERENCE, THE COURT MADE THE FOLLOWING:


                            ORDER

Petitioner being aggrieved by the order dated

25.07.2015 passed in O.S. No.78/1999 by the II Additional

Senior Civil Judge and JMFC, Tumkur has filed this writ

petition.

2. Brief facts leading to filing of the petition is as

under:

Respondent Nos.1 and 2 filed a suit for partition and

separate possession in O.S. No.78/1999 against the

petitioner and other respondents. In the said suit, the

petitioner herein has filed the written statement and

respondent No.3 has also filed separate written statement.

On 04.11.1999, respondent Nos.1 and 2 have relinquished

their right over the suit schedule property by receiving

Rs.1,05,000/-. On 05.11.1999, deceased defendant No.1

sold Item No.1 of the suit schedule property to respondent

Nos.1 and 2 and respondent No.1 has signed as witness. In

view of the settlement, the suit came to be dismissed. The

said decree was challenged in CRP No.1243/2000 and same

came to be disposed of vide order dated 17.04.2002 with a

liberty to file appropriate application. Accordingly, the

application was filed and consequently suit came to be

restored. Respondent Nos.1 and 2 have relinquished their

right on 04.11.1999. The deceased defendant No.1

executed a registered Will dated 22.03.2001 in respect of

Item Nos.2 and 3 in favour of respondent No.4 and

petitioner. The deceased defendant No.1 died on

02.02.2002. Respondent No.4 filed a suit in O.S.

No.161/2005 for relief of permanent injunction. The said

suit came to be dismissed vide judgment and decree dated

27.03.2014. Respondent No.4 being aggrieved by the

judgment and decree passed by the trial Court preferred an

appeal in R.A. No.105/2014. The same is pending.

Respondent Nos.1 and 2 have admitted the Sale Deed in

respect of Item No.1 of the suit schedule property and

release deed was confronted to respondent Nos.1 and 2

witness and marked as Exs.D.1 and D.4. It is contended by

the petitioner that the witness and scribe of the Will are no

more, when O.S. No.161/2005 was pending. The petitioner

filed an application for summoning the admitted document

i.e., thumb impression of the deceased defendant No.1 i.e.,

Dasanna to prove the Will. In support of the said

application, the petitioner has filed an affidavit contending

that the said Dasanna, who is the grand-father purchased

the suit property under a registered Sale Deed. It is

contended that the said Dasanna sold the purchased

property to one Sharada under a registered Sale Deed.

While purchasing the property by Dasanna, the Sub-

Registrar of Gubbi Taluk, Gubbi got obtained thumb mark in

the register maintained by them. The sale deed under

which he purchased the property is not in dispute. The said

Dasanna, who is grand-father of the petitioner executed a

registered Will in favour of the petitioner and other persons.

It is further contended that the attesting witnesses to the

Will and scribe are no more. It is contended that the thumb

mark of Dasanna in the register is required to compare the

same with the thumb mark in the Will in order to prove the

execution of the Will. Comparison of the thumb mark in the

sale register is just and necessary. Hence, on these grounds

prays to allow the application. Respondent Nos.1 and 2 filed

objections contending that Dasanna's thumb impression was

in the previous court proceedings as he was party and also

defendant No.1 in the suit. Hence, prays to dismiss the

application. The trial Court after hearing the parties rejected

the application filed by the petitioner. Hence, this petition.

3. Heard the learned counsel for the petitioner and

learned counsel for respondent Nos.1 and 2.

4. Learned counsel for the petitioner submits that

deceased defendant No.1 executed a registered Will Deed in

favour of petitioner and other persons. He further submits

that attesting witnesses and scribe are no more. In order

to prove the contention of the Will, it is necessary to call for

the Thumb Impression Register maintained in the office of

the Sub-Registrar, while registering the Sale Deed dated

22.08.1983, which contain the Thumb Impression of

deceased Dasanna. Therefore, he submits that the trial

Court has committed an error in rejecting the application.

On these grounds, he prayed to allow the writ petition.

5. Per contra, learned counsel for the respondent

submits that the trial Court was justified in rejecting the

application filed by the petitioner. She further submits that

respondent No.4 has filed a suit for declaration and

possession in O.S. No.161/2005 wherein, the Will was

subject matter of the said suit and the trial Court has

framed issue No.1 in respect of alleged registered Will

dated 22.03.2001. In the said suit petitioner was also one

of the party to the said suit. She further submits that the

trial Court has already recorded the findings that the

plaintiff in the said suit has failed to prove the execution of

the registered Will dated 22.03.2001. She further submits

in view of the finding recorded by the trial the said finding

has attained finality. She further submits that during

pendency of the said suit respondent No.1 has filed the suit

in O.S. No.78/1999. She further submits that when the

civil Court has already recorded the finding that the Will has

not been proved, now the petitioner has no right to file such

application. She further submits that the application filed

by the petitioner is only with malafide intention to drag on

the proceedings. She further submits that the trial Court

was justified in rejecting the application filed by the

petitioner. Hence, on these grounds she prayed to dismiss

the writ petition.

6. Heard the arguments addressed by the learned

counsel for the parties and perused the records and

considered the submissions of the learned counsel for the

parties.

7. It is not in dispute that respondent Nos.1 and 2

filed a suit for partition and separate possession in O.S.

No.78/1999. Prior to the filing of the said suit respondent

No.4 has filed a suit for declaration and possession based on

the alleged registered Will dated 22.03.2001. Wherein, in

the said suit the petitioner was defendant No.1. In the said

suit, the petitioner though appeared through counsel, but

did not choose to file written statement. The trial Court

after recording evidence has held that the plaintiff in the

said suit has not acquired the suit schedule property by

virtue of registered Will dated 22.03.2001 and further the

trial Court has also recorded the finding that the plaintiff

has not proved execution of the Will in accordance with

Section 68 of Evidence Act. Respondent No.4 being

aggrieved by the judgment and decree passed in O.S.

No.161/2005 had preferred Regular Appeal No.105/2014

which was subsequently renumbered as Regular Appeal

No.64/2020. It is submitted that by the learned counsel for

petitioner that the said appeal came to be dismissed for

default on 05.01.2022 and the finding recorded in the said

suit has attained finality. When it is the further case of the

petitioner that the attesting witnesses and scribe are no

more it is for the petitioner to take steps as per Section 69

of Evidence Act. Without taking any steps under Section 69

of Evidence Act, petitioner has filed an application to

summon the Thumb Impression Register from the office of

the Sub-Registrar. Mere securing document from the office

of the Sub-Registrar does not amount to proving the

contents of the Will. The trial Court after considering the

material on record was justified in rejecting the application.

I do not find any ground to interfere with the order

impugned by exercising supervisory power under Article 227

of the Constitution of India. Accordingly, the writ petition is

dismissed.

Sd/-

JUDGE

MBM