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1984 DIGILAW 10 (ALL)

Shiv Lal v. Peeran Singh

1984-01-03

P.R.VYAS BHIMAN

body1984
JUDGMENT P.R.V. Bhiman, Member - This is a reference under Section 218 of the U.P. Land Revenue Act made by the Additional Commissioner, Agra. In his referral order, he has recommended that the impugned order of the trial Court be set aside. 2. This is a case of mutation in which the proceedings started after the death of the recorded tenant. Smt. Dilkaur, on the application of the opposite party, who claimed succession on the basis of an unregistered Will. The objector, who is the present revisionist, claims the brother of the husband of the deceased and as a co-tenure-holder. During the course of proceedings before the trial Court where the objector had disputed that the Will was genuine, the objector had got summoned a register from the Sadhan Sahkari Samiti which contains the photographs of various members of the society along with the photograph and thumb-impression of the deceased attested by the President of the society. On December 8, 1976, the revisionist-objector gave an application to the trial Court that the thumb-impression on the Will be got compared through an expert with the thumb-impression on the register of Sadhan Sahkari Samiti. This was rejected by the trial Court by its order of the same date, which says that the register papers can be examined in the presence of both parties and there was no justification for sending the photo to the Expert. With these words, it rejected the application. An appeal was filed before the Sub-Divisional Officer, who in his order dated April 22, 1977, took the view that after the appellate powers had been conferred on the Sub-Divisional Officer such interlocutory orders could not be appealed against. In revision, the Additional Commissioner has taken the view that the order dismissing the application of the revisionist by the trial Court was of a decisive nature which would change the course of litigation and hence he has made the present recommendation in the interest of justice. 3. The learned Counsel for the revisionist supports the reference and argues that there should be no objection to getting the thumb impression compared against the thumb-impression given in the record of the Sadhan Sahkari Samiti. 3. The learned Counsel for the revisionist supports the reference and argues that there should be no objection to getting the thumb impression compared against the thumb-impression given in the record of the Sadhan Sahkari Samiti. The learned Counsel for the opposite party urged that the revision being against an interlocutory order is not maintainable and also that as set out in the ruling in 1981 R.D. 277, reference to an Expert in mutation proceedings is not to be made. 4. I have gone through the record of the case, the judgment of the lower courts and given consideration to the arguments advanced by the learned Counsels on both sides. The impugned order of the Tahsildar gives absolutely no reason except the bald statement that he sees no justification for referring the matter to an Expert. It is well-settled that a Will which changes the natural course of succession has to be proved beyond doubt and it is also well-known that unfortunately there is tendency to bring out Wills said to have been executed by the deceased persons. The people in the country side in the State are very poorly documented and it would generally be difficult to know whether the deceased had actually executed the document in question or not. In the present case, the Will had been characterized as not genuine from the very beginning by the objector-revisionist and he had taken the trouble of producing before the Court records of the Sadhan Sahkari Samiti bearing the thumb-impression of the deceased. The course of justice required that in these circumstances a comparison of the thumb-impression should have been instituted through the help of an expert. I have gone through the ruling, referred to by the learned Counsel for the opposite party, but I find that there is no bar in that ruling as such against reference to an expert. The ruling merely cautions the lower courts against excessive recourse to an expert. Actually in that case, the learned Single Member found that the Will in question had been executed as far back as in the year 1928 and would be presumed to have been acted upon. The circumstances here are different. Not only is the Will a recent document to which no presumption as under Section 90, Evidence Act attaches, but the other side has not brought just a vague allegation of its genuineness. The circumstances here are different. Not only is the Will a recent document to which no presumption as under Section 90, Evidence Act attaches, but the other side has not brought just a vague allegation of its genuineness. A document has been produced from the Sadhan Sahkari Samiti bearing the thumb-impression of the deceased attested by the President of the society and an entirely reasonable request has been made for a comparison between the two thumb-impressions. In these circumstances, the learned Additional Commissioner has correctly made the reference which will help the course of justice. I, therefore, accept the reference, set aside the orders of the Tahsildar and the appellate Court and direct that the Tahsildar shall proceed to refer the disputed thumb-impression for the opinion of an expert and then proceed in accordance to law. 5. The parties are directed to appear before the trial Court on March 5, 1984.