Karnataka High Court
Sri Sanjeevarayappa vs Sri Ugrappa on 28 June, 2023
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:22354
WP No. 2921 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 2921 OF 2021 (GM-CPC)
BETWEEN:
SRI SANJEEVARAYAPPA
S/O LATE HANUMAPPA
AGED ABOUT 58 YEARS,
R/AT VEERIAGONDHI VILLAGE
KASABA HOBLI
PAVAGADA TALUK-561202
DISTRICT TUMKUR.
...PETITIONER
(BY SRI. RAMACHANDRA R NAIK.,ADVOCATE)
AND:
1. SRI UGRAPPA
S/O LATE HANUMAPPA
Digitally
signed by AGED ABOUT 63 YEARS,
NARASIMHA
MURTHY
VANAMALA 2. SMT AKKAMUDDAKKA @ MUDDAKKA
Location:
HIGH W/O NAASAPPA
COURT OF
KARNATAKA AGED ABOUT 63 YEARS,
3. SMT SIDDALAKSHMAMMA
W/O M NARASAPPA
AGED ABOUT 43 YEARS,
4. SRI JAYARAMU
S/O NARASAPPA
AGED ABOUT 41 YEARS,
-2-
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5. SRINAGARAJU
S/O NARASAPPA
AGED ABOUT 35 YEARS,
ALL ARE RESIDENT OF
VEERIAGONDHI VILLAGE
KASABA HOBLI,
PAVAGADA TALUK-561202
DISTRICT TUMKUR.
...RESPONDENTS
(BY SRI.C. MUDDURAJ., ADVOCATE FOR R1, R2 R3 & R5;
VIDE ORDER DATED 28.06.2023, NOTICE TO R4 IS
DISPENSED WITH)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED
JUDGMENT AND ORDER DATED 03.02.2021 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC PAVAGADA IN IA NO.20,
IN O.S.NO.42/2017 VIDE ANNX-F.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition by the plaintiff in O.S.No.42/2017 on the file of
the Senior Civil Judge and JMFC, Pavagada (for short, 'the trial
Court') is directed against the impugned order passed on
I.A.No.XX whereby, the said application filed by the respondent
No.1-defendant No.1 under Order XXVI Rule 10(A) of the Code of
Civil Procedure, 1908 (for short, 'CPC') to send the dispute LTM of
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the plaintiff on Ex.D14 for scientific investigation by the forensic
science laboratory with the admitted LTMs of the plaintiff was
allowed by the trial Court.
2. Heard learned counsel for the parties and perused the
material on record. For the order proposed, notice to the fourth
respondent stands dispensed with.
3. The material on record discloses that the petitioner-
plaintiff instituted the aforesaid suit for partition and separate
possession of his alleged share in the suit schedule immovable
properties. The said suit is being contested by the respondents-
defendants. During the course of trial, the respondent No.1-
defendant No.1 produced a document marked as Ex.D14 and
alleged/contended that the same contains the LTM of the
petitioner-plaintiff. However, the petitioner-plaintiff disputed and
denied the said contention and contended that the alleged LTM
contained in Ex.D14 was not that of the petitioner-plaintiff and that
the said document (Ex.D14) was a concocted and fabricated
document. It was also contended that since the stamp paper did
not contain the names of the petitioner or the respondents, the said
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document was clearly a fabricated and concocted document and
also that the said document is not a registered document and
therefore, inadmissible in evidence.
4. After conclusion of trial, the respondent No.1-
defendant No.1 filed the instant application (I.A.No.XX) seeking to
refer the disputed LTM of the petitioner-plaintiff on Ex.D14 for
scientific investigation/comparison with his admitted LTMs. The
said application having been opposed by the petitioner-plaintiff, the
trial Court proceeded to pass the impugned order allowing
I.A.No.XX by holding as under:
"IA No.20 filed by the defendant No.1 Under Order 26
rule 10(A) of CPC to refer the thumb mark of the plaintiff in
Ex.D-14 with that of the thumb impression taken in the open
court and refer the same to the scientific investigation and
opinion of the FSL to meet ends of justice.
2. This application supported with an affidavit sworn by
the defendant No.1, contending that, the plaintiff has filed this
suit against him and other defendants for the relief partition
and separate possession. He has cross examine the PW-1 by
confronting Ex.D-14, but PW-1 has denied it. In order to
prove the defence that there is already partition between the
plaintiff and defendants, it is just necessary to send the
disputed document with the LTM of the plaintiff found on
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Ex.D-14 with that of the admitted LTM of the plaintiff.
Otherwise he will be put to hardship. Hence he prays for
allowing the application.
.
3. In the objections of the plaintiff, he has contended
that, this application is not maintainable either in law or on
facts. It is submitted that DW-1 in the chief examination has
deposed that already partition taken place on 21-07-1980 and
also on 30-01-1988, hence the defendant is not sure about
the said partition. DW-2 has deposed that he put his
signature on the partition deed dated 30-01-1988. The
defendants have produced unregistered partition deed dated
30-01-1988 on insufficient stamp paper, the said document is
not purchased either in the name of plaintiff or in the name of
the defendants. M.Narasappa who is father of defendant No.3
to 5 has filed suit for declaration and permanent injunction in
OS No.329/2010 based on the partition deed before the Prl.
Civil Judge & JMFC Court, Pavagada which was dismissed
on 17-03-2017. The plaintiff used to put his signature in all
the documents but not put his thumb impression to any
documents including to Ex.D-14. The said document is forged
document. Hence sending the said document is not
necessary to determine the case. hence prays for dismissal
of the application.
4. I have heard arguments of the respective Advocates
and perused the material available on record.
5. The following points would arise for my
consideration:-
1. Whether the defendant No.1 has made out
sufficient reasons to refer the Ex.D-14 with that of
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admitted LTM of the plaintiff for scientific
investigation?
2. What order?
6. My answer to above points as follows.
Point No.1 In the Affirmative.
Point No.2 As per the final order
for the following.
:: REASONS ::
7. Point No.1 : - It is undisputed that the suit property
was original belongs to the family of the plaintiff and
defendants. According to plaintiff, there is no partition
effected among the members of the joint family. Therefore, he
is entitled to his legitimate share. on the other hand the
defence of defendants is that it was already partitioned dated
30.01.1988, accordingly, the parties have taken their
respective shares and they have been in possession and
enjoyment of their respective shares.
8. No doubt burden is on the defendants to prove the
fact of prior partition as contended by the defendants. On
perusal of the written statement of the defendant No.4, he
has contended on 30-01-1988 the partition and division in
between M.Narasappa, plaintiff and defendant No.1 was
taken place in respect of their family properties including the
suit schedule properties. again he has pleaded there is a
partition and division dated 20-01-1988. There is a issued
framed by this court that "whether the defendant No. 1 to 3
and 5 proves that there was already partition of their family
properties?"
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The provision of Order 26 rule 10A contemplates
regarding Commission for scientific investigation.- (1) Where
any question arising in a suit involves any scientific
investigation which cannot, in the opinion of the court, be
conveniently conducted before the court, the court may, if it
thinks it necessary or expedient in the interests of justice so
to do, issue a commission to such person as it thinks fit,
directing him to inquire into such question and report thereon
to the court.
(2) The provisions of rule 10 of this Order shall, as far
as may be, apply in relation to a Commissioner appointed
under this rule as they apply in relation to a Commissioner
appointed under rule 9.
In this case the present application filed by the
defendant No.1 but not filed by the defendant No.4. In this
case evidence of both side is completed, when the matter is
posted for arguments on merits, this application came to be
filed.
9. No doubt the recitals of the Ex.D-14 discloses about
partition the family properties between M. Narasappa,
Ugrappa, plaintiff Sanjeevappa, since the Ex.D-14 is written
on insufficient stamp paper, therefore the document was
impounded and duty and penalty of Rs.2,750/- is collected
and thereafter marked as an Exhibit. Admittedly Ex.D-14 is
not a registered document. The name of the document is
shown as partition deed. But the recitals of the document
discloses they were already partitioned their family properties
and this document came into existence in the presence of
Panchayathdars by showing it is Panchayath Parikath. The
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witness by name Ashwathappa has deposed in his evidence
that the plaintiff has put his thumb mark on Ex.D-14. But
plaintiff counsel has denied that the plaintiff has not put his
thumb mark. It is just and necessary to prove, whether the
thumb mark found on Ex.D-14 is belongs the plaintiff or
otherwise, as because in the objections the plaintiff has
contended that the said thumb mark is create and forged. The
entire case is depending upon proof or otherwise of the
execution of Ex.D-14. the signatures may be different from
passing of time but thumb impressions can't be varied.
Therefore, I am of the view that referring the disputed
document with disputed thumb impression with that of the
admitted thumb impression of the plaintiff is necessary
decide the fact in issue between the parties. Which is also
necessary for court to give proper findings on the issues.
Hence I answer to this point is in the Affirmative.
10. Point No.2:- In view of my above discussion, I
proceed to pass following.
:: ORDER ::
I.A.No.20 filed by the defendant No.1 under
Order 26 Rule 10(A) of CPC is hereby allowed.
No order as to cost."
5. A perusal of the material on record and the impugned
order will indicate that the same does not suffer from any illegality
or infirmity inasmuch as the trial Court has taken into account the
specific contention of the petitioner/plaintiff that he was denying
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and disputing alleged LTM on Ex.D14 and consequently, the same
required to be sent for scientific investigation for comparison with
the admitted LTMs of the petitioner-plaintiff. Under these
circumstances, I am of the view that the impugned order passed by
the trial Court does not suffer from any illegality or infirmity nor has
the same resulted in miscarriage of justice warranting interference
by this Court in exercise of its powers under Article 227 of the
Constitution of India, as held by the Apex Court in the case of
Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423.
6. In the result, I proceed to pass the following:
ORDER
a) The petition stands disposed of without
interfering with the impugned order.
b) The trial Court is directed to send the disputed
LTM of the petitioner-plaintiff on Ex.D14 for
scientific investigation and comparison with the
admitted LTMs of the petitioner-plaintiff at the
sole cost/expense of the respondent No.1-
defendant No.1.
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All rival contentions between the parties including the
contentions urged by the petitioner-plaintiff that Ex.D14 is a
concocted and fabricated document, discrepancies in the stamp
paper, non-registration, inadmissible in evidence etc., are kept
open to be decided by the trial Court and no opinion is expressed
on the same.
Sd/-
JUDGE
RB
