Karnataka High Court
Gayathri vs M Girish on 27 June, 2018
Author: S G Pandit
Bench: S G Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR. JUSTICE S G PANDIT
WRIT PETITION NOS.26998-26999 OF 2018
(GM-CPC)
BETWEEN:
Gayathri,
Aged about 56 years,
W/o T.J.Marigowda,
#412, Sy. No.13, 20th Main Road,
Laggere Village Nandini Layout,
Bengaluru - 560 096,
Represented by her SPA
Holder T.J.Marigowda.
... Petitioner
(By Sri.G.S.Prasanna Kumar, Adv)
AND
M.Girish,
Aged about 41 years,
S/o Moganna Gowda,
#58/A, 13th Cross,
Mahalakshmi Layout,
Bengaluru - 560 086,
Represented by his GPA Holder
Moganna Gowda.
... Respondent
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These Writ Petitions are filed under Article 227 of
the Constitution of India praying to set aside the
impugned order dated 11.06.2018 passed by the
learned City Civil and Sessions Judge, Bengaluru at
Annexure-A in O.S. No.1712/2017 dismissing the I.A.s
19 and 20 filed by the petitioner herein seeking for
production of documents and summoning of witness
and etc.,
These Writ Petitions coming on for preliminary
hearing this day, the Court made the following:-
ORDER
The petitioner is before this court under Article 227 of the Constitution of India challenging the order dated 11.06.2018 on I.A Nos.19 & 20 in O.S. No.1712/2007 on the file of City Civil and Sessions Judge, Bengaluru.
2. The petitioner is the defendant and respondent is the plaintiff in O.S. No.1712/2007 which is filed for declaration to declare that the plaintiff is the owner of the schedule 'A' property, to remove the unauthorized shed and for damages. The defendant has filed her written statement. After trial, the matter -3- was posted for final arguments. At that stage, I.A No.19 is filed under Order 16 Rule 1 and 2 CPC to summon the witness to produce four documents and I.A No.20 is filed under Order 11 Rule 14 CPC seeking for a direction to the plaintiff to produce the documents as prayed. The said applications are rejected by the trial Court by order dated 11.06.2018 which is impugned in the petition.
3. Heard the learned counsel for the petitioner and perused the writ papers.
4. The suit is filed for declaration to declare that the plaintiff is the owner of the schedule 'A' property. The contention of the petitioner/defendant is that respondent/plaintiff has no manner of right, title over the suit schedule 'A' property and the petitioner/defendant is the owner and in possession of residential site bearing No.75A, VI Cross, I Main Road, Nandini Layout, Laggere Village. It is further -4- contended that she is in continuous possession and enjoyment of the schedule property. The applications are filed to summon the witness and to produce the documents. According to the petitioner, they are necessary since it is the contention of the petitioner/defendant that the site was allotted by BDA through Kengal Housing Credit Co-operative Society to the plaintiff. It is the contention of the defendant/petitioner that the plaintiff is not a member of the said society and there are no documents to show that the plaintiff was a member of the Society. I.A No.20 is filed seeking a direction to the plaintiff to produce four documents, that are also with regard to the membership of the plaintiff in Kengal Housing Credit Co-operative Society and with regard to the allotment of sites.
5. The suit filed by the plaintiff is for declaration. It is for the plaintiff to prove his case that he is the owner of the suit 'A' schedule property either by -5- allotment by BDA or Kengal Housing Credit Co- operative Society or the manner of acquisition made by the plaintiff. If the plaintiff is able to prove his title, then he is entitled for declaration on the material made available before the court. Therefore, the application filed by the defendant is not relevant for the purpose of relief sought for by the plaintiff. It is for the plaintiff to prove his case.
6. The trial Court has rightly observed that burden lies on the plaintiff to prove his title to the schedule property. Therefore, calling upon the third party to produce the documents would not arise. In the present facts and circumstances of the case, the trial Court has not committed any error or irregularity while passing the impugned order. The petitioner has not made out any ground to interfere with the order passed by the trial Court under Article 227 of the Constitution of India.
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Hence, these writ petitions are dismissed as devoid of merits.
Sd/-
JUDGE NBM