SHANKARA BHAT Vs. BHEEMA BHAT

JUDGEMENT

(1.) The question raised in this revision petition is whether a party to a suit has a right under Rule 17 of Order 18 CPC (hereinafter referred to as Rule 17), to recall a witness for the purpose of further examining, cross-examining or re-examining, and that question arises in the following circumstances:

(2.) The petitioner and the first respondent are brothers and the second respondent is the minor son of the first respondent. On 24-8-1966 the petitioner, the first respondent and their father Thimmanna Bhat divided their family properties under a registered partition deed (Ext. P-2) of even date, and one of the terms in- that partition deed was that the said Thimmanna Bhat was entitled to collect by way of 'owelty' 520 Kgs. of arecanut from the petitioner and the first respondent. Then Thimmanna Bhat bequeathed his right to collect 'owelty', after his death, from the first respondent in favour of the petitioner under a Will Ext.P1.

(3.) After the death of the said Thimmanna Bhat, the petitioner filed a suit against the respondents in O. S.No. 133 of 1970 on the file of the Munsiff at Buntwal, South Kanara, for recovery of the value in cash of the 'owelty'. The respondents resisted that suit and inter alia contended that the right given to Thimmanna Bhat to collect by way of 'owelty' 520 Kgs. of arecanut was not a heritable right and that he was entitled to the same only during his life time, and it is unnecessary to refer to his other contentions.