This Writ Petition is filed by the defendant No.2 in Original

Suit No.24 of 2012 on the file of the Senior Civil Judge and JMFC

at Pavagada challenging the order dated 08^th March, 2021

dismissing IA.23 filed by defendant No.2.

2. The relevant facts for adjudication of this writ petition

are that, the plaintiffs have filed suit against the defendants

seeking relief of partition and separate possession in respect of

the suit schedule property. Defendants 9 to 11 entered

appearance and filed written statement denying averments made

in the pliant. In the meanwhile, the defendant No.2 has filed

IA.23 under Order XVI Rule 7 read with 151 of Code of Civil

Procedure calling for entire original registers containing the

signatures of the executant, attesters and other persons

connected to the Will dated 15^th April, 1978 from the office of

the Sub-Registrar, Pavagada for the purpose of marking the

original signatures/LTMs in the Will. The said application was

contested by the defendants by filing objection. The trial Court,

after considering the material on record, by order dated 08^th

6

March, 2021 dismissed the application. Being aggrieved by the

same, the defendant No.2 has presented this Writ Petition.

3. Heard Sri S. Nagaraja, learned counsel appearing for

the petitioner and Sri Thimmanna, learned counsel appearing for

the contesting respondents 10, 12 and 13 to 17.

4. Sri S. Nagaraja, learned counsel appearing for the

petitioner contended that the impugned order passed by the trial

Court requires interference in this Writ Petition as the plaintiffs

have to prove the execution of the Will since they are the

beneficiaries of the Will dated 15^th April, 1978. He further

contended that none of the parties to the suit are having the

custody of the registered Will dated 15^th April, 1978, and it is

imperative on the parties to prove the case on the relevant

Registers in the office of the Sub-Registrar, Pavagada.

Accordingly, he submitted that the impugned order requires

interference in this Writ Petition.

5. Per contra, Sri Thimmanna, learned counsel appearing

for the contesting respondents, invited the attention of the court

to the cross-examination of PW1 and submitted that the

7

Registered Will dated 15^th April, 1978 is in the custody of PW1

and therefore, the burden is on the plaintiff to prove the alleged

Will, as well as, the main suit. Accordingly, he sought for

dismissal of the Writ Petition.

6. In the light of the submission made by the learned

counsel appearing for the parties, perusal of Writ Petition papers

would indicate that the plaintiffs have filed suit seeking relief of

partition and separate possession in respect of the suit schedule

property. PW1 has categorically admitted in his cross-

examination that the registered Will dated 15^th April, 1978 is in

his custody. Perusal of the written statement would indicate that

the defendants have not stated about the absence of the custody

of the Will dated 15^th April, 1978. The defendant/petitioner has

raised the plea of absence of the registered Will, at the belated

stage of the suit. In that view of the matter, I am of the view

that the trial Court is justified in rejecting the application filed by

the defendant. Irrespective of the finding recorded by the trial

Court in the impugned order, the onus lies on the plaintiffs to

prove the case based on the oral and documentary evidence in

8

terms of Section 101 of the Indian Evidence Act, 1872. In that

view of the matter, Writ Petition is dismissed as devoid of

merits.

Sd/-

JUDGE

lnn