N G Ranganathaswamy Vs Smt. Manjula

N G UMESH S/O LATE M GANGAPPA, AGED ABOUT 50 YEARS, DR.MRUTHYUNJAYA BUILDING WEAVERS COLONY, BHAJANE MANDIRA ROAD, BEHIND RAMANJANEYA TEMPLE, NELAMANGALA TOWN, BENGALURU RURAL DISTRICT- 562 123

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…PETITIONERS

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(BY SRI GANGADHARAPPA A V, ADVOCATE)

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AND:

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SMT. MANJULA W/O VISHVANATHA,

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AGED ABOUT 63 YEARS NO.5105, VIJAYANAGARA, NELAMANGLA TOWN BENGALURU RURAL DISTRICT -562 123

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SMT PARVATHAMMA W/O RAMANNA, AGED ABOUT 53 YEARS, RESIDING AT NO.100, 100 FEET ROAD, GOVINDARAJANAGARA, MAGADI ROAD, BENGALURU-560 040

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SMT SOWBHAGYA W/O NAGARAJ, AGED ABOUT 67 YEARS, RESIDING NEAR SUN RISE SCHOOL, SUBHASH NAGARA, NELAMANGALA TOWN, BENGALURU RURAL DISTRICT -562 123

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…RESPONDENTS

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(BY SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR R1 AND R2; VIDE ORDER DATED 15.01.2025 STEPS IN R/O R3 EXEMPTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.1.2020 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AT NELAMANGALA ON IA NO.IV IN O.S.NO.281/2011 CERTIFIED COPY WHICH IS PRODUCED AS ANNEXURE-H AND ETC.,

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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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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioners who are the defendant Nos.1, 3 and 4 in a suit in O.S.No.281/2011 on the file of Senior Civil Judge, Nelamangala which is filed by the plaintiff Nos.1 and 2/respondent Nos.1 and 2 herein for the relief of declaration and partition of the suit schedule property, are before this Court being aggrieved by order dated 13.01.2020.

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The specific case of the plaintiffs is that the deed of partition dated 28.09.2006, under which the defendants are claiming their right is a frivolous, got up, manipulated document through misrepresentation, coercion and undue influence. It is in the light of these allegations, an application is made by the plaintiffs in I.A.No.4, filed under Order 11 Rule 16 of CPC for a direction to the petitioners/defendants to produce the original registered partition deed dated 28.09.2006.

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Objection statement to the said application came to be filed by the petitioners/defendants contending that they do not possess the original. That they had produced the original of the said deed of partition before the Revenue Officer seeking change of the khata and pahani and the petitioners/defendants

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have no knowledge, if it was returned or not after the registration of khata and entries in the pahani. It is further contended that if the plaintiffs wanted to prove the said allegation they could summon the documents from SubRegistrar Office, Nelamangala or prove by leading the secondary evidence.

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The Trial Court however decline to accept the said contentions of the petitioners/defendants proceeded to allow the application directing the petitioners/defendant Nos.1, 3 and 4 to produce the original document.

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Learned counsel appearing for the

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petitioners/defendant Nos.1, 3 and 4 reiterating the grounds urged in the memorandum of petition submits that when the petitioners have categorically stated of they not having the original document in their possession, the Trial Court ought not to have directed them to produce the original, which is an order not only impractical to comply with but also impossible to comply. He submits in view of the objections placed on record, the Trial Court ought to have proceeded further directing the parties to lead their evidence in the manner

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known to law, instead of directing the petitioners to do the impossible. Hence seeks to allow the petition.

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Learned counsel for the respondents/plaintiffs

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appearing through the video conferencing submits that if a statement/declaration with regard to petitioners/defendant Nos.1, 3 and 4 not having the original deed of partition in their possession is made on affidavit, same would serve the purpose and the plaintiffs would explore the other possibilities of leading the secondary evidence in the manner known to law.

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Heard and perused the records.

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As noted above, in the statement of objection filed by

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the petitioners/defendant Nos.1, 3 and 4 to the application filed by the respondents/plaintiffs for production of document, at paragraph No.4 following is stated:

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''4. It is false to say that with deliberate intention the 1^st defendant has not produced the same after partition. It has produced for the revenue officer to change Katha and pahanis.. The defendant have no knowledge whether, when it has returned after katha and pahani. It has not with the 1^st defendant. If really the plaintiff wants to prove fact to summon document from SubRegister office, Nelamangala or to prove from secondary evidence.''

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At paragraph No.11 of the writ petition, the

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petitioners/defendant Nos.1, 3 and 4 has pleaded as under:

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''11. The trial court has failed to notice that petitioner specifically contended in the objection that they do not possess the original document of partition dated 28/9/2006. When they do not possess the document in question, question of directing them to produce will not arise and therefore the impugned order suffers from illegality of substantial nature.''

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The above averments in the writ petition are supported by a verifying affidavit affirming the authenticity of the contents of the writ petition. This statement being available as the records requirement of petitioners/defendant Nos.1, 3 and 4 filing additional affidavit as insisted by the learned counsel for the plaintiff is unwarranted. When the petitioners/defendant Nos.1, 3 and 4 have filed their version in writing of they not possessing the original, insisting them to produce the original is an exercise in futility. The other options under the provisions of law enabling production of secondary document/evidence summoning the records/documents and even drawing of inference from the concerned Sub-Registrar are all available for the parties seeking to prove the point.

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In that view of the matter, the impugned order dated 13.01.2020 directing the production of original is set-aside.

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Liberty is reserved to the parties to raise such contention as may be available under law including liberty to seek for production of secondary evidence and drawing inferences as is permissible under law and under the facts and circumstances of the case.

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With the above observation, petition is disposed of.

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SD/(M.G.S. KAMAL) JUDGE

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RL

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List No.: 1 Sl No.: 23

N G Ranganathaswamy v. Smt. Manjula

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N G Ranganathaswamy v. Smt. Manjula

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