Comparative Citation:
2009 ILR(Kar) 87

Abdul Nazeer, J.

In this case, the petitioners have called in question the order on I.A. No. 20 dated 1-8-2007 in O.S.

No. 22/2002 on the file of the I Additional Civil Judge (Sr. Dn.) Belgaum.

2. Thepetitioners are defendant Nos. 1 and 2 and respondent No.1 is the plaintiff and respondent Nos. 2 to 5 are defendant Nos. 3, 4, 5 and 6 in the aforesaid suit. For the sake of convenience, the parties are referred to by their respective ranking before the Court below.

.3. The plaintiff filed the aforesaid suit for partition and separate possession of the suit schedule properties. In the said suit, defendant Nos. 1 and 2 have filed their written statement contending that the suit filed by the plaintiff is not maintainable since there is already a mutual partition between the parties in the presence of the elders and that the same has been reduced into writing. Defendant No. 3 has filed her written statement contending that the suit schedule properties are the ancestral properties and acquired out of joint properties and she has got 1/3" share in the suit schedule properties. The third defendant has further contended that there is no partition by metes and bounds between the plaintiff and defendant Nos. 1 and 2 and that the properties continue to be the joint family properties in the hands of the plaintiff and defendant Nos. 1 and 2. On the basis of the pleadings, the Court below has framed necessary issues for consideration. The relevant issue for the purpose of this case is issue No. 5, which is as under:

."Whether defendant Nos. 1 and 2 prove earlier partition dated 29-4-1999 among them and that plaintiff was allotted share as pleaded in para No. 5 of the written statement?”

4. In her evidence, the third defendant has denied her signature on the aforesaid memorandum of partition (Ex.D 1). At this stage, defendant Nos. 1 and 2 filed application I.A. No. 20, which is referable to Order 26 Rule 10-A of the Code of Civil Procedure. In the application, defendant Nos. 1 and 2 have prayed that the signature of defendant No. 3-Smt. Sarojini Vasudev Bank be sent to the handwriting expert along with the admitted signature found in their written statement and the vakalath. The said application was opposed by the plaintiff as well as defendant No. 3. The court below on consideration of the rival contentions of the parties, has rejected the application by the impugned order.

.5. Sri Datar, learned Counsel appearing for the petitioners submits that defendant Nos. 1 and 2 have specifically pleaded that there is a prior partition between the parties in respect of the suit schedule properties as per the memorandum of partition-Ex.D1. Defendant No.3 in her evidence has denied her signature or the said document. Similarly, the plaintiff also denied her signature on the said document. Therefore, an enquiry is necessary into the question, which can be done by the scientific investigation as provided in Order 26 Rule 10-A of the Code of Civil Procedure. In support of his contention he has relied on the decision of the Apex Court in the case of H. Venkatachala Iyengar Vs B.N. Thimmajamma And Others (AIR 1959 SC 443) and the decision of this Court in the case of Chikkana Vs Lokesha And Others (ILR 2001 KAR 2681). On the other hand, learned Counsel

.appearing for the respondents have sought to justify the order of the trial Court.

6. I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record.

7. Admittedly, the suit filed by the plaintiff is for partition and separate possession of the suit schedule properties. It is the case of the plaintiff as also defendant No. 3 that the properties are their ancestral properties. However, defendant Nos. 1 and 2 contend that there is a prior partition of the properties as per the memorandum of partition-Ex.D 1 on 29-4-1999. Defendant No. 3 in her evidence has denied her signature on the said document.

8. Order 26 Rule 10-A of the Code of Civil