Karnataka High Court
Smt. Susheela Bai vs Smt. Lakshmamma on 3 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2216
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.15868/2015 (GM-CPC)
BETWEEN:
SMT. SUSHEELA BAI,
W/O LATE PILLANARAYANA RAO,
AGED ABOUT 74 YEARS,
R/AT CHOWDENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
PIN CODE-562 110.
... PETITIONER
(BY SRI H S SOMASHEKAR, ADV. FOR
SRI SIDDAMALLAPPA P M, ADV.)
AND:
1. SMT. LAKSHMAMMA,
W/O LATE NEELAPPA,
AGED ABOUT 53 YEARS,
R/AT CHOWDENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
PIN CODE-562 110.
2. MS.LALITHA,
D/O LATE NEELAPPA,
AGED ABOUT 31 YEARS,
R/AT CHOWDENAHALLI VILLAGE,
KUNDANA HOBLI,
2
DEVANAHALLI TALUK,
PIN CODE-562 110.
3. SRI.NANDISH,
S/O LATE NEELAPPA,
AGED ABOUT 30 YEARS,
R/AT CHOWDENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
PIN CODE-562 110.
4. SRI.GIRISH,
S/O LATE NEELAPPA,
AGED ABOUT 28 YEARS,
R/AT CHOWDENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
PIN CODE-562 110.
5. MISS. SUJATHA,
D/O LATE NEELAPPA,
AGED ABOUT 26 YEARS,
R/AT CHOWDENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
PIN CODE-562 110.
6. SRI.NANJUNDACHARI,
S/O LATE GIRIYACHARI,
AGED ABOUT 88 YEARS,
R/AT VENKATAGIRIKOTE VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
PIN CODE-562 110.
7. SRI.CHIKKANANJUNDACHARI,
S/O LATE GIRIYACHARI,
AGED ABOUT 81 YEARS,
R/AT VIJANAPURA VILLAGE,
K.R.PURAM HOBLI,
3
BANGALORE EAST TALUK,
PIN CODE-560 036.
8. SRI.SIDDAPPA,
S/O LATE GIRIYACHARI,
AGED ABOUT 73 YEARS,
R/AT CHOWDENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
PIN CODE-562 110.
... RESPONDENTS
(R1, R3 TO 6 & R8-SERVED & UNREPRESENTED
R7-NOTICE D/W V/O DT.21.02.2017
R2-NOTICE SERVED ON TRIAL COURT ADVOCATE
UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD.22.01.2015 IN O.S.NO.498/2006 PASSED ON
APPLICATION FILED UNDER ORDER 16 RULE 6 READ WITH
SECTION 151 OF CODE OF CIVIL PROCEDURE ON THE FILE
OF ADDITIONAL CIVIL JUDGE AND JMFC, DEVANAHALLI
VIDE ANNEX-E.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 22-01-2015 passed in O.S.No.498/2006 on the file of the Additional Civil Judge and JMFC, Devanahalli, by which, application filed under Order XVI Rule 6 of CPC is allowed 4 directing the petitioner/4th defendant herein to produce the original registered sale deed dated 03-06-2005.
2. Petitioner is the 4th defendant and respondents 1 to 5 are plaintiffs in O.S.No.498/2006 filed for judgment and decree to declare that the suit schedule property as joint family property of the plaintiffs and defendants 1 to 3 and to declare that the registered sale deed executed by defendants 1 to 3 in favour of 4th defendant is illegal and also not binding on the plaintiffs and for permanent injunction. The plaintiffs/respondents No.1 to 5 filed application under Order XVI Rule 6 of CPC seeking for a direction to the 4th defendant to produce the original registered sale deed dated 03-06-2005. The plaintiffs also filed an application under Order XXVI Rule 10A of CPC for scientific investigation of the signatures found on the sale deed dated 03-06-2005. In the affidavit filed in support of the application filed under Order XVI Rule 6 of CPC it is stated that defendants No.1 to 3 and defendant No.4 5 colluded with each other and executed the registered sale deed in favour of the 4th defendant. It is also alleged that fictitious person is created on behalf of the mother/plaintiff No.1 and the mother has not signed the sale deed dated 03-06-2005. The petitioner/4th defendant filed objections to the I.A., contending that no material is available to show that the 4th defendant is in custody of the document which the plaintiffs sought for production from the 4th defendant. Further, it is contended that it is not the stage for seeking direction and only at the time of cross-examination, the plaintiffs shall be able to elicit from the 4th defendant with regard to the original document. The trial Court, by its order dated 22-01-2015 allowed the application filed under Order XVI Rule 6 of CPC and directed the 4th defendant to produce the original registered sale deed dated 03-06-2005 which order is impugned in this writ petition.
6
3. Heard the learned counsel for the petitioner and perused the writ papers. None appeared for the respondents even though they are served with court notice.
4. Learned counsel for the petitioner submits that the petitioner herein who is the 4th defendant is aged about 75 years and she is not in a position to refresh her memory about the registered sale deed dated 03-06-2005. It is further contended that no material is produced before the trial Court to indicate the custody of the document with the 4th defendant.
5. The suit is one for partition and declaration that registered sale deed dated 03-06-2005 executed by the defendants 1 to 3 in favour of 4th defendant is illegal and not binding on the plaintiffs. It is an admitted fact that defendants 1 to 3 have executed the sale deed in favour of the 4th defendant. The 4th defendant is the person in 7 whose favour the sale deed is executed and it is presumed that the sale deed would be with 4th defendant. When the document is executed in favour of 4th defendant, the 4th defendant cannot say that no material is produced to show the custody of the said document. Curiously the 4th defendant in her entire objection has not stated any where that the document is not in her possession. When the plaintiffs have made specific allegation that the first plaintiff/mother has not signed the sale deed and a fictitious person is created to execute the sale deed, and when an application filed under Order XXVI Rule 10A of CPC is pending, it is necessary to produce the original sale deed before the Court. The trial Court, by its reasoned order has allowed the application.
6. I find no error or irregularity in the order passed by the trial Court so as to warrant interfere by this Court, under Article 227 of the Constitution of India. Accordingly, the writ petition is rejected. 8
In view of rejection of the writ petition, I.A.No.1/2018 filed for extension of interim order does not survive for consideration and the same is hereby rejected.
Sd/-
JUDGE mpk/-* bms