1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23 RD DAY OF JANUARY 2015 BEFORE THE HON BLE MR. JUSTICE B.MANOHAR WRIT PETITION No.8438/2014(GM-CPC) BETWEEN: Shri.K.N.Sananda Ganesh, S/o.Late K.T.Nagappa Reddy, Aged about 58 years, R/t Dodda Kannahalli Village, Karmallaram Post, Bangalore South Taluk. Petitioner (By Sri.M.Rama Mohan, Advocate) AND: 1. Smt.Roopa, D/o.Shivananda Reddy, Aged about 47 years, 2. Smt.Lalitha, D/o.Shivananda Reddy, Aged about 44 years, 3. Shri.Naveen, S/o.Shivananda Reddy, Aged about 41 years, Sl.No.1 to 3 are residing at: B.Channasandra Village,
2 Banaswadi Post, Bangalore 560 043. 4. Shri.Shivananda Reddy, S/o.Late K.T.Nagappa Reddy, Aged about 54 years, 5. Shri.K.N.Shivashankar Reddy, S/o.Late K.T.Nagappa Reddy, Aged about 60 years, Sl.No.4 and 5 are residing at: Dodda Kannahalli Village, R/at Dodda Kannahalli Village, Karmallaram Post 560 034, Bangalore South Taluk. 6. Smt.Kanakarathnamma, W/o.Late Krishna Reddy, D/o.Late K.T.Nagappa Reddy, Aged about 75 years, R/at Dodda Kannahalli Village, Bangalore 560 035. 7. Smt.Meenakshamma, Since deceased LRs 7(a) Smt.Padma, W/o.Chandra Reddy, Aged about 40 years, R/at Dodda Kannahalli Village, Karmallaram Post Bangalore 560 035. 8. Smt.Parvathamma, W/o.Late Rajagopal Reddy, D/o.K.T.Nagappa Reddy,
3 Aged about 55 years, R/at No.272/2, 2 nd Main Koramangala, VIII Block, Adugodi Post, Koramangala, Bangalore 560 043. 9. Smt.Gowramma, W/o.Late L.Veerappa Reddy, D/o.K.T.Nagappa Reddy, Aged about 80 years, R/at Kuvempu Road, B.Channasandra, Bangalore 560 035. 10. Smt.Shamantha, W/o.Sananda Ganesh, Major in Age, R/at Dodda Kannahalli Village, Sarjapura Road Village, Karmallaram Post, Bangalore 560 035. 11. Smt.P.Sujatha, D/o.M.Papaiah, W/o.S.G.Prabhakar, Major in Age, R/at No.243/22, Chandra Nivas, 2 nd Cross, Venkatapura Main Road, Koramangala Post, Bangalore 560 034. 12. Sri.Prabhakar, S/o.Gundappa, Major in age, R/at No.243/22,
4 Chandra Nivas, 2 nd Cross, Venkatapura Main Road, Koramangala Post, Bangalore 560 034. 13. Sri.Thomas, S/o.Joseph, Aged about 51 years, R/at No.100, K.H.B.Colony, Koramangala, Bangalore 560 095. 14. Adarsh Group Developers, No.10, Ananda Bhavan, 3 rd Floor, Marketing Division, Dr.Vittal Malya Road, Bangalore 560 001. 15. Sri.Srinivas Reddy, S/o.Krishna Reddy, Since dead by his L.R.S. 15(a) Smt.Radamma, W/o.Late K.A.Srinivasa Reddy, Major in Age. 15(b) Sri.Jagadeesh Reddy, S/o.Late Sri.Srinivas Reddy, Major in Age. 15(c) Sri.Satish Reddy, S/o.Late Sri.Srinivas Reddy, Major in Age. 15(d) Sri.Suresh Reddy, S/o.Sri.Srnivas Reddy,
5 Major in Age, The Respondents 15(a) to 15(d) are the Above resident of No.27, Kasavanahalli, Carmalaram Post, Sarjapura Road, Bangalore 560 034. 16. Sri.K.S.Suresh, S/o.Srinivas Reddy, Resident of No.27, Kasavanahalli, Sarjapura Road, Bangalore 560 043. 17. Indrashekar Reddy, S/o.Shekar Reddy, Major in Age, Agara Village, R/at Sarjapura Road, Agara Post, Bangalore South Taluk 560 043. 18. R.Anuradha, D/o.Muniyappa Reddy, Major in Age, Agara Village, R/at Sarjapura Road, Agara Post, Bangalore South Taluk 560 043. 19. Gopal Krishna Reddy, Major in Age, Agara Village, R/at Sarjapura Road, Agara Post, Bangalore South Taluk 560 043.
6 20. C.Shobitha, D/o.K.Chowda Reddy, Major in Age, Agara Village, R/at Sarjapura Road, Agara Post, Bangalore South Taluk 560 043. 21. Smt.Radamma, W/o.K.N.Shivashankar Reddy, Aged about 53 years, R/o. (Behind Royal Marble), Dodda Kannahalli, Carmalaram Post, Varthur Hobali, Sarjapura Main Road, Bangalore East Taluk 560 043. 22. Sri.S.Sunilkumar Karwa, S/o.L.Shamasundar Karwa, Aged about 40 years, R/at Flat No.124, 8 th Main, Yeshwanthpura Police Station, Malleswaram, Bangalore 560 055. 23. M/s.Indus Tech Park Pvt Ltd., A Company incorporated under Companies Act, 1956, Having Office at No.2, Service Road, Yeshwanthapura, Bangalore 560 022., represented by its Managing Director. Respondents
7 (By Sri..K.P.Asokumar, Advocate for C/R1 to 3, Sri.G.V.Shashikumar, Indo Legal Inc., Advocate for R6 & R7(a), Notice to R4, 5, 8 to 23 are dispensed with) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to set aside the impugned order dated 06.02.2014 in I.A.No.27 vide Annexure L passed by the Hon ble Trial Court in O.S.No.3844/1995 by allowing the application filed by the petitioner to produce the Panchayath Parikath, dated 10.08.1982 and to grant interim Order to stay all further proceedings in O.S.No.3844/1995 pending on the file of the XXXVIII City Civil Judge at Bangalore This Writ Petition coming on for Preliminary Hearing in B Group this day, the Court made the following:- O R D E R Petitioner is the 3 rd defendant in O.S.No.3844/1995 on the file of the XXXVIII Additional City Civil Judge, Bangalore. Being aggrieved by the order dated 6-2-2014 rejecting I.A.No.27 filed under Order VIII Rule 1-A(3) read with Section 151 of CPC, the petitioner has filed this writ petition.
8 2. Respondents 1 to 3 herein had filed the suit seeking for partition and separate possession of their respective share in respect of the suit schedule properties ignoring the sale deed dated 27-1-1995 executed by the second defendant and sale deed dated 19-11-2002 executed by the third defendant and also for other reliefs. 3. In the plaint it was contended that the suit schedule properties are the ancestral properties. Plaintiffs are the co-parceners and they are entitled for their share in the suit schedule properties. The 3 rd defendant along with defendants 1 and 2 filed written statement. At paragraph 4 of the written statement, it was specifically contended that the suit schedule properties are the joint family properties and the plaintiffs being minors, filed the suit claiming their 1/3 rd share in the suit schedule properties without making necessary parties. In the written statement, nowhere, the third defendant has mentioned
9 about the panchayath parikath of the year 1982 and also the registered partition deed of the year 2005. 4. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. Parties have lead evidence. The third defendant got himself examined as D.W.1. During the course of examination-in-chief, the 3 rd defendant filed an application I.A.No.27 under Order VIII Rule 1-A(3) of CPC seeking permission to produce the documents annexed to the application. Along with the application, he wanted to produce the Panchayat Parikath dated 10-08-1982, ration card, mutation register extract, certified copy of the sale deed dated 25-5-1992 contending that these are the relevant documents and while cleaning the house, they were able to trace these documents. Hence, they sought permission to produce the said documents. The plaintiffs and other defendants objected for production of the said documents contending that, first time long after filing of the suit, the third defendant is
10 discussing about the Panchayat Parikath dated 10-08-1982. It has seen the light only in the year 2014. In the written statement also there is no whisper about the existence of Panchayat Parikath. The said document cannot be accepted. Apart from that it is an unregistered document and the same cannot be marked in the evidence in view of Section 17 of the Registration Act. 5. The Trial Court after considering the matter in detail held that the first time in the year 2014, the third defendant brought to the notice of the court regarding existence of Panchayat Parikath of the year 1982. In the written statement filed on 27-2-1996, he has not said anything about the existence of the said Panchayat Parikath. If the joint family properties are partitioned as per the Panchayat Parikath and subsequently reduced into writing, nothing prevented the third defendant from disclosing the said fact in the written statement. The Panchayat Parikath is not a necessary document.
11 Accordingly, the Trial Court by its order impugned in this writ petition partly allowed I.A.No.27 permitting the defendant No.3 to produce the documents except Panchayat Parikath dated 10-08-1982 and to adduce evidence. Being aggrieved by the said order, the petitioner has filed this writ petition. 6. Sri.M.Rama Mohan, learned counsel appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. In the written statement, though he has not mentioned anything about the existence of Panchayat Parikath, in the additional written statement filed on 21-2-2012, at paragraph 2, he has mentioned about the partition took place when the plaintiffs grandfather was alive, before the Panchayathdars as per their advice. On the basis of the said Panchayat Parikath, the parties have acted upon and sold some of the properties. Hence, it is not open to the plaintiffs and other defendants to contend that there is no existence of the
12 Panchayat Parikath. Further, even though the Panchayat Parikath is an unregistered document, it can be marked for collateral purpose. In the instant case, the petitioner wanted to produce the said document for collateral purpose to show that the joint family properties have already been partitioned on 10-08-1982 before the Panchayathdars as per the parikath. The Trial Court, without taking into consideration all these aspects of the matter has passed the order which is contrary to law. In support of his contention, he relied upon the judgment reported in 2014(3) KCCR 2174 in the case of RAJAPPA v/s RAJAPPA; and another judgment reported in 2014(2) KCCR 1605 in the case of SRINIVASA v/s HUCHAPPA and sought for allowing the writ petition. 7. On the other hand, Sri.K.P.Asokumar, learned counsel appearing for respondents 1 to 3 and Sri.G.V.Shivakumar, learned counsel appearing for respondents 6 and 7(A) argued in support of the order
13 passed by the Trial Court and contended that the Panchayat Parikath sought to be produced is not a necessary document. When the very existence of the said document is in dispute, the question of producing the said document does not arise. Objections has been filed to the suit at the earlier point of time and the third defendant had not mentioned anything about the Panchayat Parikath of the year 1982 in his written statement and after the examination-in-chief of P.W.1, he cannot be permitted to produce some irrelevant documents to prove the prior partition in the joint family properties. The Trial Court taking into consideration all these aspects of the matter has rightly rejected the application. Hence, sought for dismissal of the writ petition. 8. I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and other relevant records.
14 9. The records clearly disclose that in a suit filed by the plaintiffs, the third defendant filed the written statement denying share to the plaintiffs. In the written statement he has not mentioned anything about the earlier partition of the year 1982. The defense taken at paragraph 4 of the written statement is that the proper persons have not been made as parties and the plaintiffs are not entitled for any share, the suit is liable to be dismissed for nonjoinder of all the parties. In the objection statement, nowhere the third defendant has mentioned about the existence of the earlier partition. After examination of the plaintiffs, during the course of examination of the defendants, the third defendant filed I.A.No.27 for production of certain documents. Along with that, the third defendant also produced Panchayat Parikath dated 10-08-1982. The said document has not been produced along with the list of documents. Only during the course of examination-in-chief, he wanted to produce the said documents and sought permission of the Court by filing
15 I.A.No.27 under Order VIII Rule 1-A(3) of CPC. The Trial Court after considering the arguments addressed by the learned counsel for both the parties found that the very existence of the document is in dispute and nowhere the third defendant has mentioned about the existence of the said document in his written statement. Only, during 2012 in the additional written statement there is a mention about the Panchayat Parikath and in the year 2014, the said document was sought to be produced. Apart from that, the registered partition deed of the year 2005 has been produced. In the light of the registered partition deed, the existence of Panchayat Parikath of the year 1982 cannot be believed. Accordingly, while allowing the other documents to be produced, the Trial Court has rightly refused to permit the third defendant to produce the Panchayat Parikath dated 10-08-1982. 10. The Trial Court taking into consideration all these aspects of the matter has rejected the application insofar
16 as production of Panchayat Parikath is concerned. The petitioner has not made out a case to interfere with the said order. Accordingly, the writ petition is dismissed. Sd/- JUDGE mpk/-*