ORDER

This petition by the plaintiff in O.S.No.42/2017 on the file of the Senior Civil Judge and JMFC, Pavagada (for short, 'the trial Court') is directed against the impugned order passed on I.A.No.XX whereby, the said application filed by the respondent No.1-defendant No.1 under Order XXVI Rule 10(A) of the Code of Civil Procedure, 1908 (for short, 'CPC') to send the dispute LTM of the plaintiff on Ex.D14 for scientific investigation by the forensic science laboratory with the admitted LTMs of the plaintiff was allowed by the trial Court.

2. Heard learned counsel for the parties and perused the material on record. For the order proposed, notice to the fourth respondent stands dispensed with.

3. The material on record discloses that the petitioner-

plaintiff instituted the aforesaid suit for partition and separate possession of his alleged share in the suit schedule immovable properties. The said suit is being contested by the respondents- defendants. During the course of trial, the respondent No.1- defendant No.1 produced a document marked as Ex.D14 and alleged/contended that the same contains the LTM of the petitioner-plaintiff. However, the petitioner-plaintiff disputed and denied the said contention and contended that the alleged LTM contained in Ex.D14 was not that of the petitioner-plaintiff and that the said document (Ex.D14) was a concocted and fabricated document. It was also contended that since the stamp paper did not contain the names of the petitioner or the respondents, the said document was clearly a fabricated and concocted document and also that the said document is not a registered document and therefore, inadmissible in evidence.

4. After conclusion of trial, the respondent No.1-

defendant No.1 filed the instant application (I.A.No.XX) seeking to refer the disputed LTM of the petitioner-plaintiff on Ex.D14 for scientific investigation/comparison with his admitted LTMs. The said application having been opposed by the petitioner-plaintiff, the trial Court proceeded to pass the impugned order allowing I.A.No.XX by holding as under:

"IA No.20 filed by the defendant No.1 Under Order 26 rule 10(A) of CPC to refer the thumb mark of the plaintiff in Ex.D-14 with that of the thumb impression taken in the open court and refer the same to the scientific investigation and opinion of the FSL to meet ends of justice.

2. This application supported with an affidavit sworn by the defendant No.1, contending that, the plaintiff has filed this suit against him and other defendants for the relief partition and separate possession. He has cross examine the PW-1 by confronting Ex.D-14, but PW-1 has denied it. In order to prove the defence that there is already partition between the plaintiff and defendants, it is just necessary to send the disputed document with the LTM of the plaintiff found on Ex.D-14 with that of the admitted LTM of the plaintiff. Otherwise he will be put to hardship. Hence he prays for allowing the application.

.

3. In the objections of the plaintiff, he has contended that, this application is not maintainable either in law or on facts. It is submitted that DW-1 in the chief examination has deposed that already partition taken place on 21-07-1980 and also on 30-01-1988, hence the defendant is not sure about the said partition. DW-2 has deposed that he put his signature on the partition deed dated 30-01-1988. The defendants have produced unregistered partition deed dated 30-01-1988 on insufficient stamp paper, the said document is not purchased either in the name of plaintiff or in the name of the defendants. M.Narasappa who is father of defendant No.3 to 5 has filed suit for declaration and permanent injunction in OS No.329/2010 based on the partition deed before the Prl. Civil Judge & JMFC Court, Pavagada which was dismissed on 17-03-2017. The plaintiff used to put his signature in all the documents but not put his thumb impression to any documents including to Ex.D-14. The said document is forged document. Hence s