Dismissed

Jayamma v. Halappa

Karnataka HC26 Jul 2024WP/19596/2021

Case brief

AI extract

What is this about?

In a writ petition seeking to set aside a trial court order in a partition suit, the High Court dismissed the petition. The petitioners contended that the court should have ruled on the admissibility of expert evidence regarding a disputed signature. The court held that the trial court correctly deferred deciding the weight of such evidence until the final judgment, as the burden of proof lies wit

What did the court decide?

Writ petition filed under Article 227 praying to set aside the impugned order directing that the commissioner/expert report be considered in the final judgment was dismissed.

Jayamma Vs Halappa — Partition | Karnataka HC (2024)

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NC: 2024:KHC:29668 WP No. 19596 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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WRIT PETITION NO.19596 OF 2021 (GM-CPC)

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BETWEEN:

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SMT. JAYAMMA W/O. LATE CHANDRAPPA AGED ABOUT 54 YEARS R/O. NIDHIHALLALLI, RANEBENNUR TALUK, HAVERI DISTRICT-581 115.

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SMT. RATHNAMMA W/O. LATE RUDRAPPA, AGED ABOUT 53 YEARS, R/O. VINOBHANAGAR, DAVANAGERE-577 004.

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Digitally signed by MEGHA MOHAN

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Location: HIGH COURT OF KARNATAKA

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SRI RENUKAPPA S/O. BHEMMAPPA AGED ABOUT 51 YEARS,

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SMT. GOWRAMMA W/O. LATE SIDDAPPA AGED ABOUT 40 YEARS,

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MASTER KUSHAL S/O. LATE SIDDAPPA AGED ABOUT 9 YEARS,

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MASTER DHRUVA S/O. LATE SIDDAPPA AGED ABOUT 7 YEARS,

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THE RESPONDENT NO.5 & 6 ARE MINORS AND THEY ARE REPRESENTED BY THEIR

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NC: 2024:KHC:29668 WP No. 19596 of 2021

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GUARDIAN AND MOTHER SMT. GOWRAMMA.

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SMT. HEMAVATHI W/O. LATE HANUMANTHAPPA, AGED ABOUT 33 YEARS,

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KUM. THANUSHA D/O. LATE HANUMANTHAPPA, AGED ABOUT 4 YEARS, SINCE MINOR REP BY HER NATURAL GUARDIAN AND MOTHER SMT. HEMAVATHI.

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THE RESPONDENT NOS.3 TO 8 ARE ALL R/AT DOGGALI VILLAGE, HARIHARA TALUK, DAVANAGARE DISTRICT-577566.

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... PETITIONERS

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(BY SRI HARISH KUMAR M.S., ADVOCATE)

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AND:

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SRI HALAPPA S/O. BHEEMAPPA, AGED ABOUT 57 YEARS

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CHANDRASHEKARAPPA S/O. BHEEMAPPA, AGED ABOUT 49 YEARS

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SRI DHARMAPPA S/O. BHEEMAPPA AGED ABOUT 40 YEARS

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ALL ARE R/O. DOGGALLI VILLAGE HARIHARA TALUK, DAVANAGERE DISTRICT-577566.

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SMT. GANGAMMA W/O. LATE SIDDALINGAPPA AGED ABOUT 74 YEARS,

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SRI HANUMANTHAPPA S/O. SIDDALINGAPPA AGED ABOUT 59 YEARS,

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SMT. GANGAMMA W/O. CHANAPPA, AGED ABOUT 52 YEARS,

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SRI MARUTHI S/O. LATE CHANNAPPA AGED ABOUT 29 YEARS,

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SRI SANJEEVA S/O. LATE CHANNAPPA, AGED ABOUT 27 YEARS,

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SMT. NETHRA D/O. LATE CHANNAPPA, AGED ABOUT 25 YEARS,

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RESPONDENTS NOS.4 TO 9 ARE ALL RESIDENTS OF DOGGALI VILLAGE HARIHARA TALUK, DAVANAGERE-577566.

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SMT. UJJAMMA W/O. SIDDAPPA KURUBA AGED ABOUT 56 YEARS, R/O. NADHIHALLALLI, RANEBENNUR TALUK, DAVANAGERE-581115.

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SMT. GIRIJAMMA W/O. BEERAPPA AGED ABOUT 53 YEARS, R/O. IRANI, RANEBENNUR TALUK, HAVERI DISTRICT-581115.

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SMT. MANJAMMA W/O. SHIVAPUTRAPPA D/O. SIDDALINGAPPA AGED ABOUT 41 YEARS, R/O. PURA VILLAGE, KANIVE SIDDIGERE, RATTIHALLI TALUK HAVERI DISTRICT-581116.

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SMT. SHARADAMMA W/O. SHIVANANDAPPA KEB D/O. SIDDALINGAPPA, R/O. BYADAGI VILALGE, BYDAGI, HAVERI DISTRICT-581106.

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SMT. SHANTHAMMA W/O. NAGARAJA D/O. SIDDALINGAPPA AGED ABOUT 51 YEARS R/O. BENDIGERE (THANDA) VILLAGE, HARAPANAHALLI TALUK-583131.

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SRI BASAVAJAPPA S/O. SIDDALINGAPPA AGED ABOUT 48 YEARS R/O. DOGGALLI VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT-581123.

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SMT. ANUSUYAMMA W/O. NAGARAJ D/O. SIDDALINGAPPA AGED ABOUT 43 YEARS, R/O. INGALAGONDI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT. ... RESPONDENTS

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(BY SRI B.S. PRASAD, ADVOCATE FOR R-4 TO R-16; R-1, R-2 & R-3 ARE SERVED & UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY THE PRINCIPAL CIVIL JUDGE (SR.DN.) AND CJM, DAVANAGERE IN O.S.NO.152/2017 INSOFAR AS THE ORDER DATED 17.08.2021 VIDE ANNEXURE-M AND DIRECT THE COURT BELOW TO DECIDE THE WHETHER COMMISSIONER’S REPORT IS TO BE ACCEPTED OR NOT BEFORE DECIDING THE SUIT ON MERITS.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC:29668 WP No. 19596 of 2021

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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The present writ petition is filed aggrieved by the order dated 17.08.2021 in O.S.No.152/2017 by the Principal Civil Judge (Sr. Dn.) and CJM, Davangere, whereby, the Court below had rejected the contention of the plaintiffs that a finding should be given on the Commissioner’s report.

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The plaintiff filed a suit for partition. In that, defendants have filed a written statement stating that the father of the plaintiffs was a party to the earlier partition dated 02.02.2002, which is registered partition deed. The plaintiffs disputed the same and also disputed the signature of their father. Then, an application was filed by the plaintiffs to send the said partition deed for expert opinion and compare the signature of late Bheemappa on the said document and the Trial Court, by order dated 16.03.2019 has allowed that application and sent the same for the expert opinion. The expert after comparing the signature has given an opinion that the signature on the partition deed belongs to late Bheemappa, i.e., the father of the plaintiffs. Then, the plaintiffs raised objections to the Commissioner’s report and cross-examined

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NC: 2024:KHC:29668 WP No. 19596 of 2021

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the expert. The report of the expert cannot be taken into consideration as the expert has failed to follow the scientific procedure for arriving at such a conclusion and the plaintiffs wanted the Court to give a finding on the expert's opinion. The Court below by the impugned order dated 17.08.2021 had observed that Officer of FSL, Davanagere has submitted the Commissioner report on 04.01.2020. On careful consideration of the material available on record, as per the order sheet dated 10.11.2020 suit was posted for hearing on commissioner report and arguments on merits. Learned counsels have argued on commissioner report. Whether commissioner report has to be accepted or not is to be decided in the judgment. The Court also observed that the matter is of the year 2017, already evidence of both parties is over and whether the commissioner report is to be accepted or not will be discussed in the judgment. Both learned counsels were directed to advance the arguments on merits of the suit.

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petitioners/plaintiffs submits that the Court should have passed an order on the commissioner report. The petitioners would get an opportunity to send the same to another expert.

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NC: 2024:KHC:29668 WP No. 19596 of 2021

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Petitioners relied on the judgment of this Court in the case of Parappa and another vs. Bhimappa and another¹ . They

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relied on paragraph No.18 as under:-

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“Question No. 1:

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18. What is the evidentiary value of the Commissioner's report is to be found under Order 26, Rule 10(2) of CPC which reads as under:

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“Report and depositions to be evidence in suit-The report of the Commissioner and the evidence taken by him. (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.”

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Relying on this, learned counsel for the petitioners submits that the Court should have given findings on the Commissioner’s report or the Court should have come to the

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1 ILR 2008 KAR 1840

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conclusion that the Commissioner’s report cannot be considered, then the petitioners will get an opportunity to file another application. They have also relied on the judgment of

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the Apex Court in the case of Ram Lal and others Vs. Salig Ram and others² at paragraph No.17 it is held as under:

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“17. The fact that the Local Commissioner’s report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner’s report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view

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2 AIR 2019 SC 729

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NC: 2024:KHC:29668 WP No. 19596 of 2021

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that if the Local Commissioner’s report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner’s report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioner’s report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.”

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Relying on these two judgments, learned counsel submits that if a finding is not given by the Court, it would

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NC: 2024:KHC:29668 WP No. 19596 of 2021

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cause lot of hardship to the plaintiffs and all these aspects were not considered by the Court.

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Learned counsel for the respondents submits that only for the purpose of protracting the proceedings, this application is filed. He submits that even the evidence of the expert is a piece of evidence like any other evidence and the Court would consider the same at the time of passing of the judgment, whenever the evidence is let in. On every evidence, there can’t be a finding whether the Court is going to consider it or not. Further, he submits that the defendants are the one, who are relying on the partition deed. Apart from the signature, by adducing the necessary evidence, the burden lies on the defendants to prove that there was earlier partition. The expert is already cross-examined at length and those details are before the Court. As such, the Court has rightly observed that it will consider the expert opinion at the time of passing of the judgment and has rightly rejected the contention of the plaintiffs.

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Having heard the learned counsel for the respective

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parties, perused the material on record.

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NC: 2024:KHC:29668 WP No. 19596 of 2021

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This is a suit for partition, the plaintiffs are seeking

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partition and separate possession of the suit schedule properties. It is the case of the defendants that during the life time of the plaintiff’s father late Bheemappa, the partition had taken place and it is a registered partition deed and the same is acted upon. When the defendants are relying on the particular document, it is for the defendants to prove that there was a prior partition and the plaintiffs are not entitled for partition. But in this case, the plaintiffs had filed an application to send the said registered partition deed for comparing the signature of late Bheemappa as they have denied the said signature on the said document as a concocted document. They have filed objections and during the arguments, it is submitted that there is objection to send the document for expert opinion. Accordingly, it was sent and plaintiff has raised his objections and also expert was cross-examined at length. The entire evidence is before this Court. Even the Court can compare the signatures but in the earlier order, the Court has observed that as it can be done in more professional way by the experts, it was sent to expert opinion. This Court has considered the judgments that are relied on by the learned counsel for the

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NC: 2024:KHC:29668 WP No. 19596 of 2021

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petitioners. The judgments that are relied on by the petitioners cannot be applied as it is and it depends upon the facts and circumstances of each case. In this particular facts of the case,

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the partition deed is relied on by the defendants and it is the burden of the defendants to prove the said document on the expert opinion, plaintiff had filed his objections and has already cross-examined the expert and even that material is before this Court. In the considered opinion of this Court, the Court rightly held that it will consider the same in due course while passing the judgment. The contention of the plaintiff that lot of prejudice will be caused to him, if the order is not passed by the Court on expert’s opinion has no less to stand as to party who pleads has to proceed and it is the burden of defendants. Accordingly, the writ petition is dismissed.

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SD/(LALITHA KANNEGANTI) JUDGE

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List No.: 1 Sl No.: 3

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MBM

Jayamma v. Halappa

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Jayamma v. Halappa

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