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2017 DIGILAW 1465 (KAR)

Thontaradya v. Channaveeramma

2017-11-07

B.VEERAPPA

body2017
JUDGMENT : 1. The legal representatives of the defendant No.1 have filed the present writ petition, against the order dated 28.4.2017 passed on I.A.No.27, filed under Order 26 Rule 10(A) read with Section 151 of the Code of Civil Procedure, in O.S.No.868/1995, rejecting the application filed by the defendant No.1(a). 2. The respondent Nos.1 to 5, who are the plaintiffs before the Trial Court had filed the suit for declaration of title and for permanent injunction contending that they are the owners in possession of the suit schedule property under registered sale deed dated 6.4.1994 and that the defendants had no manner of right, title or interest over the suit schedule property. 3. The defendants had filed the written statement denying the plaint averments and contended that they are in possession of the suit property by virtue of the partition deed effected in the year 1974 and sought for dismissal of the suit. 4. After completion of evidence on both the sides, when the matter was posted for arguments, at that belated stage, the defendant No.1(a) filed an application under Order 26 Rule 10(A) read with Section 151 of the Code of Civil Procedure and Section 45 of the Indian Evidence Act, seeking to refer Exs.D14, 15, 16, 17, 19, 21, 27, 29(a) to (e) and 30(a) (f) with the LTM of the plaintiff No.1 and signatures of plaintiff Nos.2 and 3, to the handwriting experts for their opinion reiterating the averments made in the written statement. The same was opposed by the plaintiffs reiterating the averments made in the plaint and contended that the application filed is belated and only to protract the proceedings. 5. The Trial Court considering the application and the objections, by the impugned order dated 28.4.2017, dismissed the application filed by the defendant No.1(a). Hence, the present writ petition is filed. 6. I have heard Sri. Vasanth Kumar K.M, learned counsel appearing for Sri. Srikanth Patil K., learned counsel for the petitioners. 7. The learned counsel appearing for the petitioners contended that the impugned order of the Trial Court, rejecting the application, is erroneous and contrary to the material on record. He contended that the plaintiffs have to prove issue Nos.2, 3, 6 and 7. He further submitted that the entire documents had been summoned from the office of the Tahasildar and that PW6 during his cross-examination had denied his signature in the revenue records. He contended that the plaintiffs have to prove issue Nos.2, 3, 6 and 7. He further submitted that the entire documents had been summoned from the office of the Tahasildar and that PW6 during his cross-examination had denied his signature in the revenue records. Hence, in order to prove the revenue records, it is just and necessary to refer the documents to the handwriting expert. The Trial Court has failed to consider the same. Therefore, he sought to quash the impugned order by allowing the present writ petition. 8. Having heard the learned counsel for the petitioners, it is not in dispute that the plaintiffs had filed the suit for declaration and permanent injunction based on the registered sale deed dated 6.4.1994. The same is disputed by the defendants and contended that they are in possession of the suit property by virtue of the partition effected between the parties mutually. It is also not in dispute that after completion of evidence on both sides, when the matter was posted for arguments, the application came to be filed to refer the documents to the handwriting expert. 9. The Trial Court after considering the material on record had recorded a finding that Ex.D14 was a Xerox copy of the registered partition deed certified by the Tahasildar and the signatures appearing in the said deed are not clear and not the original signatures of the parties. The defendants had summoned the entire documents with respect to MR No.85/1985-86 and got marked them as exhibits. Further, it is recorded that the Tahasildar, Shikaripura, was examined by the defendants as DW14 and during the course of her cross-examination, she had admitted as under: “(KANADA)” 10. The Trial Court further recorded that as per the admission of the Tahasildar, Ex.D14 was given as a certified copy of the Xerox copy of the partition deed available in the record and as per her evidence, the Katha had been transferred only on the basis of the Xerox copy of the partition deed but not on the basis of the original partition deed. Thus, it is recorded that the original partition deed had not been produced by the parties and the Tahasildar had not issued a copy of the original partition deed, but it was a certified copy of the Xerox copy. Thus, it is recorded that the original partition deed had not been produced by the parties and the Tahasildar had not issued a copy of the original partition deed, but it was a certified copy of the Xerox copy. Thus, the defendants wanted to refer the Xerox copy certified by the Tahasildar, to the handwriting experts for comparison. But, the signatures in the documents are not legible. Thus, it is found that the defendants wanted to send Xerox copy of the partition deed to the handwriting experts and not the original disputed signatures and it is not permissible under law. Hence, the Trial Court was of the opinion that it was not required to send the Xerox copy to the handwriting expert for comparison. 11. It is not in dispute that the document proposed to be sent to the handwriting experts is only the Xerox copy, certified by the Tahasildar and the signatures on the said document are not legible. If the signatures on the documents are not legible, the question of referring the documents to the handwriting expert under Order 26 Rule 10(A) of the Code of Civil Procedure, does not arise. The Trial Court after considering the entire material on record, by the impugned order, dismissed the application. The same is in accordance with law. The petitioners have not made out a ground to interfere under Articles 227 of the Constitution of India. Accordingly, the petition is dismissed.