ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present writ petition is filed seeking for the following relief:

“1. Issue a writ or direction or order in the nature of writ of certiorari to quash the impugned order dated 13.11.2024 in O.S.No.386/2008 passed by the Additional Civil Judge and JMFC, Gokak rejecting the prayer of the petitioner seeking permission to cross- examine the DW-2/defendant No.2 as per Annexure-A and permit the petitioner to cross-examine the DW-

2/defendant by allowing the present writ petition.”

2. The relevant facts in a nutshell leading to the present writ petition are that the first respondent/plaintiff instituted a suit in O.S.No.386/2008 for partition and other reliefs. Respondents No.2 to 6 are arrayed as defendants No.2 to 5 in the said suit and respondent No.2 is the legal representative of deceased defendant No.1. The petitioner is defendant No.6 in the said suit. Defendant No.6 is the purchaser of suit property from defendant No.2. The defendants have contested the suit.

3. During the course of trial, the defendant No.6 was permitted to cross-examine defendant No.2 who was examined as DW.2. However, during the course of the cross-examination, due to an objection raised by the plaintiff, the Trial Court vide order dated 13.11.2024 rejected the prayer of defendant No.6 to cross-examine defendant No.2 (DW.2) and closed the said cross- examination. Being aggrieved, the present writ petition is filed.

4. Learned counsel for the petitioner, Sri.Shriharsh A Neelopant vehemently assailing the order impugned, contends that the defendant No.2 has in his written statement contested the genealogy as set forth by the plaintiff. However, defendant No.6 in addition to contesting the genealogy, has specifically averred that the plaintiff is not the brother of Dundappa and does not belong to the family of the Irappa (alleged father of the plaintiff) who was the father of Basappa and Dundappa. Hence, it is the contention of the learned counsel for the petitioner that he is required to cross-examine defendant No.2 with regard to the said aspect of the matter.

5. It is forthcoming that the Trial Court vide order dated 13.11.2024 has ordered as follows:

“6. There is no dispute with regard to alienation. There is a dispute with regard to defendant No.6 being the bonafide purchaser of the said property. Further, there is nothing in contrary to the contentions of defendant No.6 in the examination of defendant no.2 who is examined as DW-2. It is the plaintiff who has adverse interest and is also the adverse party. But, DW- 2 has no adverse interest against defendant No.6. Hence, the burden is solely upon defendant no.6 to prove that he is the bonafide purchaser by cross examining the parties who have adverse interest against his case. Hence, question of cross examination of DW- 2 by defendant No.6 does not arise at all, when defendant No.2 and 6 have same versions and are sailing in the same boat. The burden is on defendant No.6 to independently prove his case and further for the aforesaid reasons, this court is of the opinion that he cannot be permitted to cross examine DW-2 who has no adverse interest against defendant No.6 and his written statement is in consonance with the interest of defendant No.6. As such, the prayer of learned counsel for defendant No.6 to cross examine defendant No.2 is rejected and the cross examination of defendant No.2 by defendant No.6 stands closed.”

(emphasis supplied)

6. It is clear and forthcoming from the aforementioned that the Trial Court has noticed that defendant No.6 is claiming through defendant No.2 and there is no adverse interest inter-se between defendant Nos.2 and 6.

7. In view of the said finding and in view of the admitted position that defendant No.6 is claiming through defendant No.2, the Trial Court was justified in passing the impugned order dated 13.11.2024 and the petitioner has not made out any ground to interfere with the said order.

8. In view of the aforement