ORDER : 1. The plaintiff filed the present writ petition against the order dated 31.07.2017 rejecting I.A.No.13 filed by the plaintiff under Order XXVI Rule 10A read with Sections 75(e) and 151 of Code of Civil Procedure to appoint a Court Commissioner for scientific investigation of DNA profiling of blood samples of plaintiff and defendant No.3 to prove the plaintiff’s biological relationship. 2. The plaintiff filed O.S.No.121/2012 for partition and separate possession of all the suit schedule properties; to declare that the partition deed dated 11.09.2012 registered before the office of the SubRegistrar, Shivamogga Taluk, is null and void and it is not binding upon the lawful right of the plaintiff and for permanent injunction restraining the defendants from alienating, transferring, conveying, mortgaging, creating any manner of charge etc., over the suit schedule properties, more fully, described in the plaint by contending that defendant Nos.1 and 2 are legally wedded husband and wife, defendant Nos.3 to 7 are the sons and daughters of defendant Nos.1 and 2. Defendant No.1 had contacted second marriage with one Sundaramma and the plaintiff is the son of defendant No.1 through second wife Sundaramma. The genealogical tree of the family is also produced. It is further contended that the plaintiff and defendant Nos.1, 3 to 7 constitute an Undivided Hindu Joint family and the plaintiff is also one of the coparcener and member of the family. Defendant No.1 owned and possessed valuable movable and immovable properties, more fully, described in the petition plaint. Therefore, he filed a suit for the relief sought for. 3. Defendant Nos.1 to 7 filed the written statement denying the plaint averments and contended that the plaintiff’s original name is Dhudya Naika and not Dayananda Gowda. They admitted that defendant Nos.1 and 2 are legally wedded husband and wife. Defendant Nos.3 to 7 are the sons and daughters of defendant No.1 are true and denied the fact that the plaintiff is the son of defendant No.1 through second wife by name Sundaramma. It is further contended that defendant No.1 and the plaintiff’s mother Sundaramma are not husband and wife. The plaintiff belongs to Banjara Community (lambani religion). The defendants belong to Vakkaliga Community. There is no relationship between the plaintiff and defendants family. The plaintiff’s original name is Dhudya Naika son of Rama Naika who is the native of Malebennur Village of Harihara Taluk. The plaintiff belongs to Banjara Community (lambani religion). The defendants belong to Vakkaliga Community. There is no relationship between the plaintiff and defendants family. The plaintiff’s original name is Dhudya Naika son of Rama Naika who is the native of Malebennur Village of Harihara Taluk. The plaintiff and his mother Sundaramma deserted her husband and came to her parents house at Mandenakoppa Village and resided in her parents house. Defendant No.1 is aged 86 years and he lost his memory power due to age factor. The plaintiff and his mother were working as labourers in the land of defendants as daily wagers. The plaintiff’s school admission certified copy issued by the Head Master clearly depicts the name of Sundaramma as wife of Rama Naika and not the wife of defendant No.1 as averred in the plaint. It is further contended that the plaintiff was working with defendant No.1 as an agricultural coolie on daily wage basis. Defendant No.1 is an illiterate and he does not know reading and writing. Therefore, the plaintiff taking undue advantage obtained signature to the blank papers and used the said papers for his convenience to create some false documents in favour of the plaintiff and used those documents to knock of the valuable properties of defendant No.1. Hence, he sought for dismissal of the suit. 4. After completion of evidence on both sides, when the matter was posted for arguments, the plaintiff filed an application under Order XXVI Rule 10A read with Sections 75(e) and 151 of Code of Civil Procedure to appoint a Court Commissioner for scientific investigation preferably a qualified Technical Laboratory for DNA profiling of blood samples of the plaintiff as well as defendant No.3 to know the biological relationship between the parties. Reiterating the averments made in the plaint, the said application was opposed by the defendants by contending that an attempt of the plaintiff by filing application itself is veiled admission that he is unsuccessful in proving the paternity. The trial Court on considering the application and objections, by impugned order dated 31.07.2017, rejected the application. Hence, the present writ petition is filed. 5. I have heard the learned counsel for the parties to lis. 6. The trial Court on considering the application and objections, by impugned order dated 31.07.2017, rejected the application. Hence, the present writ petition is filed. 5. I have heard the learned counsel for the parties to lis. 6. Sri H.S.Prashanth, learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the application filed by the plaintiff under Order XXVI Rule 10A read with Sections 75(e) and 151 of Code of Civil Procedure is erroneous and contrary to the material on record. He would further contended that the trial Court failed to notice the requirement of appointment of Court Commissioner to determine paternity of the petitioner by DNA profiling, which is necessary in view of total denial by the defendants. With regard to dispute in relationship of plaintiff’ mother Sundaramma with defendant No.1 Venkatappa, he would further contended that the defendants have produced the documents to show that the plaintiff is not the son of Venkatappa through Sundaramma. Though, the documents produced by the plaintiff indicates that he is the son of defendant No.1Venkatappa through Sundaramma issued by the authorities concerned, the same is disputed by the defendants and produced the contra documents. Therefore, the DNA test is inevitable and the trial court ought to have allowed the application. 7. In support of the above said contention, the learned counsel for the petitioner has relied upon the dictum of this Court in the case of P.S.Shivakumar Vs. P.H.Subbarayappa and Others reported in 2018 (1) AKR 39 by contending that the writ petition has to be allowed. 8. Per contra, Sri Raghavendra A.Kulkarni, learned counsel for the respondents/defendants has sought to justify the impugned order and contended that the plaintiff has come to the Court for the relief sought for and he has to prove that he is the son of late Venkatappa through second wife Sundaramma. The documents produced by the defendants before the trial Court clearly depicts that the plaintiff’s original name is Dhudya Naika and not Dayananda Gowda and he belongs to Banjara Community (lambani religion) and the defendants belong to Vakkaliga Community. The evidence on record clearly proved that he is no way concerned to the family of the defendants. Therefore, he sought to dismiss the writ petition. 9. The evidence on record clearly proved that he is no way concerned to the family of the defendants. Therefore, he sought to dismiss the writ petition. 9. Having heard the learned counsel for the parties, the points that arise for consideration are as under: (i) Whether the trial Court is justified in rejecting the application I.A.No.13 filed under Order XXVI Rule 10A read with Sections 75(e) and 151 of Code of Civil Procedure to appoint the Court Commissioner for scientific investigation of DNA profiling of blood samples of plaintiff and defendant No.3? (ii) Whether the plaintiff has made out a case to allow the application I.A.No.13 under the facts and circumstances of the case? 10. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 11. It is the case of the plaintiff that he is the son of defendant No.1Venkatappa through his second wife Sundaramma. The plaintiff and defendants constitute an Undivided Hindu Joint Family. It is the definite case of the defendants in the written statement denied the relationship between the parties and contended that the original name of the plaintiff is Dhudya Naika son of Rama Naika and not Dayananda Gowda. He is the native of Malebennur Village of Harihara Taluk. The plaintiff and his mother Sundaramma deserted her husband and came to her parents house at Mandenakoppa Village. The plaintiff belongs to Banjara Community (lambani religion). The defendants belong to Vakkaliga Community. The plaintiff and his mother Sundaramma were working as an agricultural coolie under defendant No.1 and they have created the documents. The plaintiff has produced certain documents such as ration card and voter ID card to prove that he is the son of Venkatappa through his second wife Sundaramma. The defendants have produced the document such as school TC to show that the plaintiff name is Dhudya Naika son of Rama Naika and geological tree of defendant Nos.1 to 7 issued to that effect by the authorities and other documents to show that the plaintiff is no way concerned to the family of the defendants. The defendants have produced the document such as school TC to show that the plaintiff name is Dhudya Naika son of Rama Naika and geological tree of defendant Nos.1 to 7 issued to that effect by the authorities and other documents to show that the plaintiff is no way concerned to the family of the defendants. It is also not in dispute that during the course of evidence on the voluntary approach by the plaintiff and one S.R.Srinivas, Smt. Vani Sachdev, Assistant Director of Truth Labs, New Delhi, examined the DNA profile test of both the persons at CCMB (Center for Cellular and Molecular biology Centre) and opined that Dayananda Gowda and S.R.Srinivas are paternally related. The defendants have disputed the said relationship. 12. The plaintiff has filed a suit for partition and separate possession of all the suit schedule properties by metes and bounds and to put the plaintiff in possession and enjoyment of his 1/7th share in the suit schedule properties alleging that he is the son of Venkatappa through his second wife Sundaramma. The defendants produced number of documents to disprove that he is not the son of Venkatappa through second wife. The trial Court proceeded to hold that the plaintiff has specifically pleaded that defendant No.2 is the legally wedded wife of defendant No.1 and his mother Sundaramma was the second wife. Therefore, burden is on the plaintiff to prove that his mother Sundaramma was the second wife of defendant No.1Venkatappa. The plaintiff is not the biological son of defendant No.1 as there is no exclusive proof regarding legitimacy as per Section 112 of the Evidence Act. Further, the trial Court held that burden is on the defendants to prove that the mother of the plaintiff Sundaramma was the wife of one Rama Naika. 13. The plaintiff also filed an application under Section XXVI Rule 10A read with sections 75(e) and 151 of CPC. The trial Court has not come to a definite conclusion whether the plaintiff is the son of defendant No.1Venkatappa through Sundaramma as alleged by the plaintiff and whether the plaintiff’s original name is Dhudya Naika son of Rama Naika and Sundaramma was not the second wife of defendant No.1Venkatappa and she is the wife of Rama Naika. Without arriving at any conclusion proceeded to reject the application. Without arriving at any conclusion proceeded to reject the application. In view of dispute with regard to relationship between the parties and the plaintiff has produced certain documents to show that he is the son of Venkatappa through second wife Sundaramma. The defendants have also produced number of documents to prove that he is the son of Rama Naika and Sundaramma is not the wife of defendant No.1Venkatappa. There is a serious dispute with regard to the said relationship. In the absence of any proof, in a suit for partition, the Court has to appoint a scientific person to conduct DNA as sought for. 14. The learned counsel for the respondents has relied upon the decision of the Hon’ble Supreme Court in the case of Goutam Kundu Vs. State of West Bengal reported in 1993 (3) SCC 418 , wherein it is held that normally the courts in India cannot order blood test as a matter of course and also cannot be entertained and unless there must be a strong prima facie case in that the husband must establish nonaccess in order to dispel the presumption arising under Section 112 of the Evidence Act. In the said case, maintenance was sought for against the father of the child where he has disputed the paternity of the child. Under those circumstances, the Hon’ble Supreme Court held that the routine blood check up should not be allowed and ultimately, it is for the husband to dispel the presumption arising under Section 112 of the Evidence Act. The said case has no application to the facts and circumstances of the present case. 15. In the instant case, unfortunately both defendant No.1 – Venkatappa and alleged second wife Sundaramma are dead. Now, the dispute between the plaintiff and defendants No.2 to 4 the legal representatives of defendant No.1Venkatappa is that the plaintiff claims to be the legal representative through second wife. In the absence of any documents, the trial Court ought to have allowed the application filed by the plaintiff. In the absence of any material and any admission made by the defendants, in the peculiar facts and circumstances of the present case, the Court in order to do justice between the parties has to order for appointment of Court Commissioner for DNA test as prayed for. In the absence of any material and any admission made by the defendants, in the peculiar facts and circumstances of the present case, the Court in order to do justice between the parties has to order for appointment of Court Commissioner for DNA test as prayed for. The presumption under Section 112 of the Evidence Act would not attract in the facts and circumstances of the present case. If appointment of Court Commissioner for scientific investigation of DNA profiling of blood samples of plaintiff and defendant No.3 is ordered to prove the plaintiff’s biological relationship, no prejudice would be caused to the defendants. Admittedly, defendant No.1Venkatappa and alleged second wife Sundaramma are also dead. 16. Sri Raghavendra A.Kulkarni, learned counsel for the respondents contended that the defendants’ father had filed O.S.No.1123/2012, which came to be decreed. Miscellaneous petition and miscellaneous appeal filed by the petitioner also came to be dismissed and also in the execution petition there was eviction and it was the subject matter before this Court in W.P.Nos.39958-39959/2014. This Court allowed the writ petition and set aside the impugned order dated 04.08.2014 passed in I.A.Nos.3 and 4 and stayed the execution proceedings till the disposal of OS.No.121/2012. The said submission is placed on record. 17. In the interest of justice and in the peculiar facts and circumstances of the present case, it is a fit case to allow the application. This Court while considering the similar circumstances in the case of P.S.Shivakumar relied upon by the learned counsel for the petitioner and Goutham Kundu’s case relied upon by the learned counsel for the respondents, where application filed by the plaintiff for DNA test was allowed and the same was challenged before this Court and this Court, in turn, dismissed the writ petition confirming the order passed by the trial Court allowing DNA test. Paragraph Nos.20 and 40 of the said judgment reads as under: “20. Interlocutory application I.A.No.54 AnnexureL is accompanied by the affidavit of first defendant. It is the specific plea of first defendant that plaintiff is the son of Sri K.L.Vasanthaiah and his wife Smt.B.N.Rangamma. He has specifically denied that plaintiff is not his son and he is not born to him through his first wife Smt.Radhamma. Hence, it is pleaded by first defendant that to arrive at the truth, plaintiff should be subjected to DNA test along with him and Smt.Radhamma. He has specifically denied that plaintiff is not his son and he is not born to him through his first wife Smt.Radhamma. Hence, it is pleaded by first defendant that to arrive at the truth, plaintiff should be subjected to DNA test along with him and Smt.Radhamma. Said application having been allowed by trial Court, plaintiff is before this Court assailing said order. 40. The presumption available under Section 112 of Evidence Act would come into play where the husband questions the paternity of son or daughter, as the case may be, by contending that he had no access to the wife. A presumption of a fact depends upon satisfaction of certain circumstances. Those circumstances would ultimately lead to the fact sought to be presumed. This is what Section 112 provides for by way of presumption. Said Section would be inapplicable to the facts on hand, inasmuch as, it is not the case of first defendant that he had no access to his wife or there was no cohabitation between them. But on the other hand, it is not only the case of first defendant father of plaintiff but also it is the case of mother D.W.5 also that she could not conceive and beget any children and as such she has forced first defendant to marry second defendant. In fact, she has categorically denied that plaintiff is her son. As such, presumption available under Section 112 of the Evidence Act would not come into play in the instant case or in other words, it would not be applicable to the facts obtained in the instant case”. 18. In view of the aforesaid reasons, writ petition is allowed. The impugned order dated 31.07.2017 passed by the trial Court on I.A.No.13 in O.S.No.121/2012 is hereby quashed. I.A.No.13 filed by the plaintiff under Order XXVI Rule 10A read with Sections 75(e) and 151 of Code of Civil Procedure for appointment of Court Commissioner for scientific investigation of DNA profiling of blood samples of plaintiff and defendant No.3 to prove plaintiff’s biological relationship is allowed. Ordered accordingly.