- 1 - NC: 2025:KHC-D:1913 WP No. 101246 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 101246 OF 2022 (GM-CPC) BETWEEN: SRI. SHABBIR S/O. HUSSAINSAB NADAF @ SUTTUGOAL, AGE: 47 YEARS, OCCN: WEAVER, R/O. DURDI GALLI, AT. AND POST: RAMPUR ( RABKAVI )-587314. TQ: JAMKHANDI, DIST: BAGALKOT. …PETITIONER (BY SRI. PRASHANT S. KADADEVAR, ADVOCATE) AND: 1. SMT. MUMATAJ W/O. RAMZAN NADAF, AGE: 39 YEARS, OCC: HOUSEHOLD, R/O. DURDI GALLI, AT AND POST: RAMPUR RAVKAVI-587314, TQ: JAMKHANDI, DIST: BAGALKOT. 2. KUMARI JASMINE D/O. RAMZAN NADAF, AGE: 10 YEARS, OCCN: NIL, MINOR-REPRESENTED BY MINOR GUARDIAN AND NEXT FRIEND NATURAL MOTHER 1ST RESPONDENT, SMT. MUMATAJ W/O. RAMZAN NADAF, AGE: 39 YEARS, OCCN: HOUSEHOLD, R/O. DURDI GALLI, AT & POST: RAMPUR (RABKAVI)-587314, TQ: JAMKHANDI, DIST: BAGALKOT. 3. KUMARI AIYESHA D/O. RAMZAN NADAF, AGE: 11 YEARS, OCCN: NIL, MINOR REPRESENTED BY MINOR GUARDIAN AND NEXT FRIEND NATURAL MOTHER 1ST RESPONDENT SMT. MUMATAJ W/O RAMZAN NADAF, ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High court of Karnataka, Dharwad Bench, Dharwad Date: 2025.02.04 15:45:14 +0530 - 2 - NC: 2025:KHC-D:1913 WP No. 101246 of 2022 AGE: 39 YEARS, OCCN: HOUSEHOLD, R/O. DURDI GALLI, AT & POST: RAMPUR (RABKAVI)-587314, TQ: JAMKHANDI, DIST: BAGALKOT. …RESPONDENTS (R1-SERVED; R2-R3 ARE MINORS REPRESENTED BY R1) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER ON IA NO.IV DATED 23.11.2021 PASSED IN O.S. NO.199/2013 BY THE CIVIL JUDGE AND J.M.F.C., AT. BANAHATTI (ANNEXURE-E) AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioner is before this Court seeking for the following reliefs; i. Issue writ in the nature of Certiorari by quashing the impugned order on IA No.IV dated 23.11.2021 passed in O.S. No.199/2013 by the Civil Judge and J.M.F.C., at. Banahatti (Annexure-E). ii. Issue any other writ or direction as deem fit by this Hon’ble Court in the interest of justice and equity. 2. A suit in O.S.No.199 of 2013 on the file of Civil Judge, Banahatti, had been filed by the petitioner seeking for declaration, possession and injunction against - 3 - NC: 2025:KHC-D:1913 WP No. 101246 of 2022 defendants/respondents. In the said suit, the plaintiff has placed reliance on a Will dated 15.12.2006 executed by one Shri Dastagirsab. In the plaint it is stated that in furtherance of the said Will, the plaintiff had given application to city survey authorities to enter his name as a legatee by enclosing the original Will deed 02.09.2009 and said Will having been denied by the defendants in their written statement and issue having been framed casting the burden on the petitioner to prove the Will, the petitioner had filled an application under order XIV Rule 1 and 2 read with Section 151 of the Code of Civil Procedure (for short ‘CPC’) for issuance of witness summons to the city surveyor to produce the original registered Will dated 15.12.2006 executed by the Dastagirsab, S/o. Nabisab Nadaf. The said application having been opposed and dismissed, the petitioner is before this Court seeking for the aforesaid reliefs. 3. Notice having been issued to the respondents, there is no representation made by them. - 4 - NC: 2025:KHC-D:1913 WP No. 101246 of 2022 4. The claim of the petitioner is based on the aforesaid Will, which has been denied by the defendants and an issue is framed in relation thereto. When an issue is framed in relation to a Will, it would be required for the Will to be established in a manner known to law in terms of Section 68 of the Indian Evidence Act (for short ‘the Act’). Now in terms of Section 67 of the Bharatiya Sakshya Adiniyama, which would require the original Will to be produced, the signatures to be identified, verified, for the purpose of ascertaining the validity of the will. Without the original of the will being placed on record, the question of establishing the validity and veracity of the will would not arise. This factor has not been taken into account by Trial Court in the proper perspective. 5. As such, I pass the following: ORDER i. The writ petition is allowed. ii. The impugned order on I.A.No.IV dated 23.11.2021 passed in O.S.No.199/2013 by - 5 - NC: 2025:KHC-D:1913 WP No. 101246 of 2022 the Civil Judge and JMFC, Banahatti, at Annexure-E, is quashed. iii. Consequently, I.A.No.IV filed in O.S.No.199/2013 is allowed. The City Surveyor, Rabkavi-Banahatti, is directed to produce the original of the registered Will No.59 dated 15.12.2006, executed by Sri.Dastgirsab in favour of Sri.Shabbir S/o. Hussainsab Nadaf, pertaining to CTS No.2366, 2367 and 2368 of Rabkavi, within 7 days of the receipt of summons. iv. The Trial Court is directed to issue formal summons to the City Surveyor in terms of the aforesaid order and proceed therefrom. Sd/- (SURAJ GOVINDARAJ) JUDGE AM/gab CT-MCK List No.: 1 Sl No.: 69