Allowed

Sri.K.M.Ganganna v. Sri.B.M.Nagappa

Karnataka HC6 Sept 2021WP/32649/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing a trial court order appointing a hand-writing expert to investigate documents whose genuineness was denied by the petitioner but not claimed as a burden on respondents. The judgment held that since respondents are not parties to the alleged sale, the burden lies with the agreement holder.

What did the court decide?

Impugned O.S. order dated 19.7.2018 allowing I.A. No.4 appointing expert was set aside and the application was rejected.

Sri.K.M.Ganganna Vs Sri.B.M.Nagappa — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF SEPTEMBER 2021

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BEFORE

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THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

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WRIT PETITION NO.32649 OF 2018 (GM-CPC)

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BETWEEN:

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SRI. K.M.GANGANNA SON OF LATE MARIYAPPA, AGED ABOUT 63 YEARS R/AT BYRAVESHWARA LAYOUT, VEERASAGARA ROAD, DOBBOSPET VILLAGE, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT.

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...PETITIONER

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(BY SRI. NAGAIAH, ADVOCATE)

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AND:

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1 . SRI. B.M.NAGAPPA SINCE DEAD BY LRS,

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1(a) SMT JAYAMMA, WIFE OF LATE B.M. NAGAPPA, AGED ABOUT 69 YEARS,

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1(b) SMT KALAVATHY DAUGHTER OF B.M. NAGAPPA, AGED ABOUT 49 YEARS

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1(c) SRI LOKESH SON OF LATE B.M. NAAPPA, AGED ABOUT 51 YEARS,

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1(a), 1(b) AND 1(c) ARE RESIDING AT MAKALI VILLAGE AND POST, DASANAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU-560 123.

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1(d) SMT ANUSUYA DAUGHTER OF B.M.NAGAPAP, AGED ABOUT 68 YEARS, RESIDING AT NO.440, 19-C MAIN ROAD, 1^ST "N" BLOCK, RAJAJINAGARA, BENGALURU – 560 010.

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1(e) SRI N MADHUKUMAR SON OF LATE B.M. NAGAPPA, AGED ABOUT 66 YEARS, RESIDING AT NO.195/17, MAHALAKSHMI LAYOUT, SERVICE ROAD, BENGALURU-560 086.

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…RESPONDENTS

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[BY SRI. S N ASWATH NARAYAN, ADVOCATE FOR R-1(a,b,c & e) R-1(d) SERVED AND UNREPRESENTED]

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, NELAMANGALA IN O.S.144/2005 DATED 19.7.2018 VIDE ANNEX-A AND ETC.

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THIS WRIT PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner aggrieved by the order dated 19.7.2018 passed by the Additional Civil Judge and JMFC, Nelamangala has filed this writ petition.

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Brief facts leading rise to filing of this petition are as under:

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The petitioner has filed a suit in

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O.S.No.144/2005 on the file of the Additional Civil

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Judge & JMFC, Nelamangala for possession and the consequential relief of permanent injunction against the respondents. The respondents appeared and filed written statement. The Trial Court framed the issues. Thereafter, the matter was posted for recording the evidence of the parties.

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2.1. The respondents filed application in I.A.No.4

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under Order XXVI Rule 10(A) read with 151 of CPC. In support of the said application, respondent No.1(c)

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filed an affidavit contending that the respondents have filed a written statement denying the plaint averments and have taken a definite stand that the petitioner is not the owner of the suit schedule property as the petitioner has sold the suit schedule property to his brother-in-law Mr.M.Govinda Reddy under agreement of sale dated 4.8.1986 and has acknowledged the receipt of the entire sale consideration amount and delivered possession to Mr.M.Govinda Reddy on the date of agreement of sale itself and further the petitioner executed a general power of attorney in favour of Mr.M.Govinda Reddy.

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2.2. During the course of cross examination,

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PW1 has denied execution of sale dated 4.8.1986 and the general power of attorney alleged to have been executed in favour of Mr.M.Govinda Reddy. In view of denial of his signature on the agreement of sale, general power of attorney and affidavit, in order to

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prove the signature of the petitioner, the respondents filed an application and prayed to allow the

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application.

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2.3. The petitioner opposed the said application by filing objection contending that the suit is filed for the relief of possession and permanent injunction and the application filed by the respondents is frivolous and with a malafide intention to drag the matter and the case is posted for defendants further arguments on the main and the learned counsel for the defendants has argued in part and it is further contended that the document submitted by the respondents cannot be a document of controversy between the persons who is not a party in the suit. Hence, prayed to reject the application.

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2.4. The Trial Court after hearing the parties and

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considering the material on record allowed the application filed by the respondents and directed to

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name the hand writing expert to be appointed as a Court Commissioner. The petitioner aggrieved by the order filed this writ petition.

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Heard learned counsel for petitioner and learned counsel for respondents .

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Learned counsel for the petitioner submits

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that no issue is framed placing the burden of proof on

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the respondents in regard to proof of agreement of sale, general power of attorney and affidavit. He further submits that there is no direct transaction between the petitioner and the respondents in respect of the suit schedule properties and he further submits that the said documents are marked only for collateral purposes. He further submits that the application was filed by the respondents at the stage of defendant arguments. He further submits that the said documents are not the subject matter of the suit

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property. He further submits that the alleged agreement of sale was executed in favour of one M Govinda Reddy who is not a party to the instant suit. Hence, the Trial Court without considering this aspect has proceeded to pass the impugned order which is arbitrary and erroneous. Hence, on these grounds he prayed to allow the writ petition.

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Per contra, learned counsel for the

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respondents submits that the respondents are in possession of the suit schedule property and the petitioner has entered into an agreement of sale with Mr.M.Govinda Reddy who is the brother-in-law of the petitioner and he further submits that Mr.M Govinda Reddy has delivered possession to the Trust and the Trust is in possession of the suit schedule property and he further submits that the order passed by the Trial Court is correct and does not call for any

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interference. Hence, on these grounds prays to dismiss the writ petition.

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Perused the records and considered the

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submissions made by learned counsel for the parties.

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It is the case of the petitioner that the

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petitioner is the owner of the suit schedule property and the respondents are in possession of the suit property. Hence, the petitioner has filed a suit for possession. The respondents filed a written statement denying the ownership of the petitioner over the suit schedule property. The trial Court on the basis of the pleadings framed the following issues :

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Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

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2. Whether the plaintiff proves that the defendant has illegally entered and encroached the

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suit schedule property by constructing a school which

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is known as Shrusti School?

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3. Whether the plaintiff further proves that he

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demanded the defendant to vacate and hand over the suit schedule property?

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4. whether the plaintiff proves that he is entitled for a decree of possession and permanent injunction?

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5. What Order or Decree?

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Issues framed by the Trial Court discloses

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that the burden is on the petitioner to prove the issues. No burden of proof is placed on the respondents. The respondents have not produced any records to show how the alleged agreement of sale, general power of attorney and affidavit are in the custody of the respondents. The agreement holder Sri M Govinda Reddy has not filed any suit for specific

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performance against the petitioner. The respondents cannot take advantage of the agreement of sale alleged to have been entered by the petitioner in favour of M Govinda Reddy. The respondents are not a parties to the alleged agreement of sale, general power of attorney and the affidavit. If the execution of the said documents are denied by the petitioner, it is for M Govinda Reddy to prove the said documents but not by the respondent by appointing Court Commissioner. The Trial Court without considering the said aspect has proceeded to pass the impugned order. Thus, the impugned order passed by the Trial Court is arbitrary and erroneous and the same is liable to be set aside.

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Accordingly, I proceed to pass the following

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order :

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ORDER

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i) Writ petition is allowed;

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ii) The impugned order dated 19.7.2018

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passed on I.A.No.4 in O.S.No.144/2005 is set aside.

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iii) I.A.No.4 filed by the respondent is rejected.

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SD/JUDGE

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Sri.K.M.Ganganna v. Sri.B.M.Nagappa

Case brief

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Sri.K.M.Ganganna v. Sri.B.M.Nagappa

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