COURT OF KARNATAKA - 2 - NC: WP No. 40492 of 2017 v. SAROJAMMA

Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:11725 WP No. 40492 of 2017 …PETITIONERS AGED ABOUT 32 YEARS, RESIDING AT NO.276, NAGONDAHALLI ROAD, CHANNASANDRA VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK, BANGALORE-560 049. (BY SRI. ANNAIAH C.V., ADVOCATE) AND:

1. SMT. V. SAROJAMMA D/O. SRI. VENKATARAMANAPPA, W/O. LATE VENKATRAM, AGED ABOUT 57 YEARS, RESIDING AT SHETTIGEHALLI VILLAGE, BEGUR POST, KUNIGAL TALUK, TUMKUR DISTRICT-572 130.

2. SMT. CHANDRAMMA D/O. SRI. VENKATARAMANAPPA, W/O. SRI. MUNIYAPPA, C/O. SRI. RAMAIAH, AGED ABOUT 53 YEARS, R/AT BYCHAPURA VILLAGE, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT, PIN: 562 110.

3. SRI. B.V. SRINIVAS S/O. SRI. VENKATRAMANAPPA, AGED ABOUT 44 YEARS, RESIDING AT BANAHALLI VILLAGE, NANDAGUDI HOBLI, HOSKOTE TALUK, BANGALORE RURAL DISTRICT, PIN: 562 122.

4. SRI. VENKATARAMANAPPA S/O. LATE VENKATAPPA GOWDA, AGED ABOUT 89 YEARS, RESIDING AT BANAHALLI VILLAGE, NANDAGUDI HOBLI, HOSKOTE TALUK, BANGALORE RURAL DISTRICT, PIN: 562 122. - 3 - NC: 2024:KHC:11725 WP No. 40492 of 2017 DETELED. AMENDMENT CARRIED OUT AS PER ORDER DATED 14.03.2022 & 25.03.2022

5. SMT. SUSHEELAMMA D/O. SRI. VENKATARAMANAPPA, W/O. MUNISHAMAPPA, C/O. SRI. RAJANNA, AGED ABOUT 69 YEARS, R/AT OPPOSITE K. MOHAN GARMENTS, GARVEBAVIPALYA, HOSUR ROAD, BANGALORE-560 068. DETELED. AMENDMENT CARRIED OUT AS PER ORDER DATED 14.03.2022 AND 25.03.2022.

6. SMT. SARASWATHAMMA D/O. SRI. VENKATARAMANAPPA, W/O. SRI. NARAYANAPPA (POSTMASTER), AGED ABOUT 66 YEARS, R/AT LALBAGH DASARAHALLI VILLAGE, HALASAHALLI POST, HOSKOTE TALUK, BANGALORE RURAL DISTRICT, PIN-562 114.

7. SMT. ANUSUYAMMA D/O. SRI. VENKATARAMANAPPA, W/O. KRISHNAPPA, AGED ABOUT 63 YEARS, R/AT BANAHALLI VILLAGE, NANDAGUDI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT, PIN-562 122. DETELED. AMENDMENT CARRIED OUT AS PER ORDER DATED 14.03.2022 AND 25.03.2022.

8. SMT. V. JAYALAKSHAMMA D/O. SRI. VENKATARAMANAPPA, W/O. L.P. KRISHNAPPA, AGED ABOUT 60 YEARS, R/AT KUBARPET, - 4 - NC: 2024:KHC:11725 WP No. 40492 of 2017 KUNDUR VILLAGE AND HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT, PIN-561 101. …RESPONDENTS (BY SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR RESPONDENT NOS.1 TO 3; NOTICE SERVED ON RESPONDENT NOS.6 AND 8; VIDE ORDER DATED 14.03.2022, PETITION AGAINST RESPONDENT NOS.4, 5, AND 7 STANDS DISMISSED) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 12.07.2017 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC AT HOSKOTE IN O.S.NO.125/2008 DISMISSING THE APPLICATION FILED THE PETITIONERS HEREIN UNDER ORDER XXVI RULE 10(a) READ WITH SECTION 151 OF CPC AT ANNEXURE-A AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The defendant No.6 in O.S.No.125/2008 on the file of the Additional Civil Judge and JMFC, Hoskote has filed this petition challenging the correctness of an order dated 12.07.2017 by which, an application filed by him under Order XXVI Rule 10A of Civil Procedure Code was rejected. - 5 - NC: 2024:KHC:11725 WP No. 40492 of 2017

2. The suit in O.S.No.125/2008 was filed for partition and separate possession of the plaintiffs share in the suit schedule properties. The defendant No.1 is the father of the plaintiffs who sold the property to the defendant No.6 on

12.07.1999.

3. The suit was contested by the defendant Nos.1 to 5. The defendant No.6 being the purchaser of the suit property also contested the suit.

4. Based on the rival contentions, the Trial Court framed the issues and set down the case for trial.

5. The plaintiff No.3 was examined as PW.1 and during his cross-examination, a sale deed dated 12.07.1999 was confronted to him by the defendant No.6 and he was questioned whether PW.1 had affixed his signature as a witness to the said sale deed. PW.1 denied it but deposed that he had no objection for a scientific examination of his signature found on the sale deed dated 12.07.1999 and to compare it with his admitted signatures found on the plaint as well as Vakalath. - 6 - NC: 2024:KHC:11725 WP No. 40492 of 2017

6. Following this, the defendant No.6 filed an application under Order XXVI Rule 10A of the Civil Procedure Code to compare the disputed signature of PW.1 in the sale deed and compare it with the admitted signatures found on the plaint and Vakalath. This application was opposed by the defendants. The Trial Court after considering the application as well as the objections filed there to, rejected it in terms of the impugned order, on the ground that the same was not required in view of the reliefs sought by the plaintiffs.

7. Being aggrieved by the said order this petition is filed.

8. The learned counsel for the defendant No.6 submitted that the plaintiff No.3/PW.1 was a witness to the sale deed executed by the defendant No.1 in favour of the defendant No.6 and when his signature was confronted to the plaintiff No.3, he denied it and deposed that he had no objection for comparison of his signature in the sale deed with the admitted signatures found on the plaint and Vakalath. He therefore, submits that since that was a crucial fact, the Trial Court must have allowed the said application, as it was for the - 7 - NC: 2024:KHC:11725 WP No. 40492 of 2017 defendant No.6 to establish that the plaintiff No.3 had attested the document, not as an attesting witness, but as a consenting witness. He contends that if PW.1 was a consenting witness, then his suit for partition would not be maintainable.

9. Per contra, the learned counsel for the plaintiffs submitted that even if the plaintiff No.3 had affixed his signature to the sale deed that cannot be construed as if he had consented to the sale deed executed by the defendant No.1. He submitted that such sale should be restricted to the interest of the defendant No.1 and cannot affect the interest of the plaintiff No.3. He further submits that the defendant No.1 in his written statement had admitted that the plaintiff No.3 had affixed his signature as an attesting witness to the sale deed and therefore there is no need to refer the document for scientific examination.

10. I have considered the submissions made by the learned counsel for the defendant No.6 as well as learned counsel for the plaintiffs.

11. The suit in O.S.No.125/2008 was filed for partition and separate possession of the suit schedule properties. The - 8 - NC: 2024:KHC:11725 WP No. 40492 of 2017 defendant No.6 was arrayed as party in the suit, as he had purchased the suit schedule properties from the defendant No.1. The defendant No.6 in his written statement had categorically stated that; "at the time of the execution and registration of the sale deed, the third plaintiff was very much present before the Sub-Registrar's office and has affixed his signature as one of the witnesses, the said transaction was well within the knowledge of third plaintiff, but the plaintiffs have not filed the above suit earlier. When the properties value has been increased abnormally, hence, the plaintiffs have filed the above suit with an intention to have wrongful and illegal gain'. Therefore, the plaintiffs were put on notice at an earliest point in time about the plaintiff No.3 affixing his signature to the sale deed executed by the defendant No.1 in favour of defendant No.6.

12. The sale deed was marked by confronting it to PW.1 as Ex.D1. The defendant No.6 also suggested to PW.1 that he had affixed his signature to the document at Ex.D1 as a witness, which was however denied. PW.1 expressed that he had no objection for comparing the signature confronted to him - 9 - NC: 2024:KHC:11725 WP No. 40492 of 2017 on Ex.D1 with his admitted signatures on the plaint and Vakalath.

13. Therefore, though the Trial Court could have exercised jurisdiction under Section 73 of the Evidence Act, 1872, it was bound to use it sparingly and if there is a way to compare the signatures of the plaintiff No.3 with his alleged signatures found on Ex.D1, the Court should explore that possibility.

14. In that view of the matter, the Trial Court must have allowed the application filed by the defendant No.6. However, a perusal of the impugned order shows that the Court did not consider the case of the defendant No.6 from his perspective, but merely held that scientific examination of signature was not necessary. The Trial Court was completely oblivious of the contentions urged by the defendant No.6 in the written statement. Therefore, the impugned order warrants interference.

15. Hence this petition is allowed and the impugned order dated 12.07.2017 passed by the Trial Court is set aside. The application filed by the defendant No.6 under Order XXVI - 10 - NC: 2024:KHC:11725 WP No. 40492 of 2017 Rule 10A of Civil Procedure Code is allowed. The Trial Court is directed to appoint a handwriting expert from the State Forensic Lab, Madivala, Benglauru to compare the alleged signature of plaintiff No.3 on Ex.D1 with his admitted signatures on the plaint and Vakalath.

16. Since the suit is filed in the year 2008, the Trial Court is directed to expedite the trial and obtain a scientific examination report at the earliest and dispose off the suit within a period of 01 year from the date of receipt of a copy of the report from the handwriting expert. Sd/- JUDGE HJ List No.: 1 Sl No.: 23