ORDER

The defendant No.6 in O.S.No.125/2008 on the file of the Additional Civil Judge and JMFC, Hoskote has filed this petition challenging the correctness of an order dated 12.07.2017 by which, an application filed by him under Order XXVI Rule 10A of Civil Procedure Code was rejected.

2. The suit in O.S.No.125/2008 was filed for partition and separate possession of the plaintiffs share in the suit schedule properties. The defendant No.1 is the father of the plaintiffs who sold the property to the defendant No.6 on

12.07.1999.

3. The suit was contested by the defendant Nos.1 to 5.

The defendant No.6 being the purchaser of the suit property also contested the suit.

4. Based on the rival contentions, the Trial Court framed the issues and set down the case for trial.

5. The plaintiff No.3 was examined as PW.1 and during his cross-examination, a sale deed dated 12.07.1999 was confronted to him by the defendant No.6 and he was questioned whether PW.1 had affixed his signature as a witness to the said sale deed. PW.1 denied it but deposed that he had no objection for a scientific examination of his signature found on the sale deed dated 12.07.1999 and to compare it with his admitted signatures found on the plaint as well as Vakalath.

6. Following this, the defendant No.6 filed an application under Order XXVI Rule 10A of the Civil Procedure Code to compare the disputed signature of PW.1 in the sale deed and compare it with the admitted signatures found on the plaint and Vakalath. This application was opposed by the defendants. The Trial Court after considering the application as well as the objections filed there to, rejected it in terms of the impugned order, on the ground that the same was not required in view of the reliefs sought by the plaintiffs.

7. Being aggrieved by the said order this petition is filed.

8. The learned counsel for the defendant No.6 submitted that the plaintiff No.3/PW.1 was a witness to the sale deed executed by the defendant No.1 in favour of the defendant No.6 and when his signature was confronted to the plaintiff No.3, he denied it and deposed that he had no objection for comparison of his signature in the sale deed with the admitted signatures found on the plaint and Vakalath. He therefore, submits that since that was a crucial fact, the Trial Court must have allowed the said application, as it was for the defendant No.6 to establish that the plaintiff No.3 had attested the document, not as an attesting witness, but as a consenting witness. He contends that if PW.1 was a consenting witness, then his suit for partition would not be maintainable.

9. Per contra, the learned counsel for the plaintiffs submitted that even if the plaintiff No.3 had affixed his signature to the sale deed that cannot be construed as if he had consented to the sale deed executed by the defendant No.1. He submitted that such sale should be restricted to the interest of the defendant No.1 and cannot affect the interest of the plaintiff No.3. He further submits that the defendant No.1 in his written statement had admitted that the plaintiff No.3 had affixed his signature as an attesting witness to the sale deed and therefore there is no need to refer the document for scientific examination.

10. I have considered the submissions made by the learned counsel for the defendant No.6 as well as learned counsel for the plaintiffs.

11. The suit in O.S.No.125/2008 was filed for partition and separate possession of the suit schedule properties. The defendant No.6 was arrayed as party in the suit, as he had purchased the suit schedule properties from the defendant No.1. The defendant No.6 in his written statement had categorically stated that;

"at the time of the execution and registration of the sale deed, the third plaintiff was very much present before the Sub-Registrar's office and has affixed his signature as one of the witnesses, the said transaction was well within the knowledge of third plaintiff, but the plaintiffs have not filed the above suit e