Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 976 (CAL)

Lakshman Chandra Pakhira v. Purna Chandra Pakhira

2011-07-26

PRASENJIT MANDAL

body2011
JUDGMENT Prasenjit Mandal, J. 1. THIS application is directed against the Order No.18 dated August 25, 2010 passed by the learned Civil Judge (Junior Division), 3rd Court, Tamluk in Title Suit No.73 of 2009 thereby allowing an application for appointment of a handwriting expert. 2. THE short fact is that the opposite parties instituted a suit being the Title Suit No.73 of 2009 against the petitioners for declaration, injunction and other reliefs. THE defendants are contesting the said suit by entering an appearance. THE plaintiffs challenged the deed dated July 17, 1960 contending, inter alia, that late Basudev Pakhira, father of plaintiff no.1 did not execute the said deed. Accordingly, on the prayer of the plaintiffs, a handwriting expert was appointed by the impugned order. Being aggrieved, this application has been preferred by the defendant nos.1 to 6. Now, the question is whether the impugned order should be sustained. 3. UPON hearing the learned Counsel for the parties and on going through the materials on record I find that the plaintiffs have filed the suit contending that they have right, title and interest over the 'Ka' schedule property as described in the schedule to the plaint and that the defendant nos.1 to 6 have no right, title and interest in the property. They have prayed for permanent injunction against the defendant nos.1 to 6 restraining them from interfering with their possession in respect of 'Ka' schedule property, the plaintiffs have contended that Basudev Pakhira, predecessor-in-interest of the plaintiffs did not transfer the suit property in favour of the father of the defendants and his brother on July 17, 1960. 4. IT may be recorded herein that one Nidhu Pakhira was the original owner of the 'Ka' schedule property measuring 10 decimals and 'Kha' schedule property measuring 7 decimals of land under R.S. Dag No.125, Khatian No.96 under P.S. Panskura, Purba Midnapore. He died living two sons, namely, Sarat and Sashi. Shasi had three sons, namely, Panchanan, Ratan (died as bachelor) and Basudev. Panchanan died living the defendants and Basudev died living the plaintiffs as heirs. The plaintiffs wanted that a handwriting expert should be appointed to verify the L.T.I. of Basudev Pakhira appearing on the deed dated July 17, 1960. Mr. He died living two sons, namely, Sarat and Sashi. Shasi had three sons, namely, Panchanan, Ratan (died as bachelor) and Basudev. Panchanan died living the defendants and Basudev died living the plaintiffs as heirs. The plaintiffs wanted that a handwriting expert should be appointed to verify the L.T.I. of Basudev Pakhira appearing on the deed dated July 17, 1960. Mr. Gayen appearing on behalf of the petitioners has contended that a handwriting expert can be appointed for verification of the signature or the L.T.I. provided an admitted signature / L.T.I. is available. If no admitted signature / L.T.I. is available, the comparison with the disputed one could not be made. In support of his contention, Mr. Gayen has referred to the decision of Bhupendra Narain Mandal v. Narain Lal Das and ors. reported in AIR 1965 Patna 332 and the decision of T. Subbiah v. S.K.D. Ramaswamy Nadar reported in AIR 1970 Madras 85. By referring the decision of Bhupendra Narain Mandal (supra) particularly the paragraph no.19, Mr. Gayen has submitted that the handwriting expert could be appointed when the admitted signatures are available. In the instant case, the opposite parties have wanted to compare the disputed signatures with the ones appearing on the L.T.I. register in respect of a deed executed in 1968, that is, after lapse of 8 years and this is not permissible, he has contended. 5. MR. Gayen has next referred to the decision of T. Subbiah v. S.K.D. Ramaswamy Nadar reported in AIR 1976 Madras 85 and by referring to the paragraph no.8 of the said decision, MR. Gayen submits that according to Section 73 of the Indian Evidence Act, the court is to ascertain whether the signature or L.T.I. is that of the person alleged to have been written or made, the court can compare such signature, writing or seal with the admitted or proved signature, writing or seal of the person and that while doing so, the court is empowered to direct any person present in court to right any words or figures for the purpose of enabling the court to compare such words or figures with those alleged to have been written by that person. 6. ON the other hand, Mr. G.L. Ghosh, learned Advocate appearing on behalf of the opposite parties has referred to the decision of Bhagwan Kaur v. Maharaj Krishan Sharma and ors. 6. ON the other hand, Mr. G.L. Ghosh, learned Advocate appearing on behalf of the opposite parties has referred to the decision of Bhagwan Kaur v. Maharaj Krishan Sharma and ors. reported in AIR 1973 Supreme Court 1346 and by referring to the Head Note(B), he submits that the evidence of a handwriting expert unlike that of a finger print expert, is generally a frail character and its fallibilities have been quite often noticed. The court should, therefore, be wary to give too much weight to the evidence of handwriting expert. The conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case. He has also referred to the decision of Smt. Aditi Rani Biswas v. Sri Khagendra Nath Dutta and anr. reported in 2011(1) CLJ(CAL) 540 delivered by a Single Bench of this Hon'ble Court to the effect that the plaintiff is required to prove his case and so, in order to enable the plaintiff to prove his case, the handwriting expert should be appointed. I have gone of the aforesaid four decisions. In the instant case, the plaintiff has sought for declaration that the deed dated September 17, 1960 is void and so in order to prove his contention, he has wanted to make verification of the disputed L.T.I.s with the other ones. That could be done as per decision of Bhupendra Narain Mandal (supra) and T. Subbiah (supra) by comparison of the disputed signatures with the admitted ones. Mr. Ghosh has referred two decisions, one relating to the value of the evidence of a handwriting expert. The decision of Smt. Auditi Rana Biswas (supra) relates to a different aspect that is whether the handwriting expert should be appointed for the second time or not when the first one was granted on the prayer of the defendant. 7. THEREFORE, the two decisions referred to by Mr. Ghosh, I hold, have no relevance in respect of the matter before this Bench. The plaintiffs have wanted to compare the disputed L.T.I.s with the L.T.I.s alleged to have been made by the executant of the deed of 1968 in the L.T.I. Register maintained in the Office of the Sub-Registrar. Those L.T.I.s of the year 1968 were not taken in presence of the defendants or their predecessor-in-interest. The defendants are not admitting the said L.T.I.s of the register of 1968. Those L.T.I.s of the year 1968 were not taken in presence of the defendants or their predecessor-in-interest. The defendants are not admitting the said L.T.I.s of the register of 1968. Any Register maintained in the official course of business bears some presumptive value of genuineness; but, unless and until, the L.T.I.s thereon are proved or admitted by the adversary, the presumption cannot take the place of proved or admitted. Moreover, that Register is not under the control or possession of the Court. It is not also certain if the Register is still available or not. There is no observation as to the original deed of 1968. This being the position, I am of the view that the L.T.I.s appearing in the concerned Register of the year of 1968 of the Office of the Sub-Registrar, Panskura, cannot be considered to be admitted ones at all. So, it would not be proper to compare the disputed L.T.I.s with the L.T.I.s appearing in the Register of 1968, kept in the Office of the Sub-Registrar, Panskura. Unless and until, admitted L.T.I.s are available, comparison will not be proper. This is also the spirit of Section 73 of the Indian Evidence Act. 8. IN that view of the matter, I am of the opinion that the learned Trial Judge has committed errors of law in passing the impugned order. Accordingly, the impugned order cannot be sustained. The revisional application is, therefore, allowed. The impugned order is hereby set aside. Considering the circumstances, there will be no order as to costs. 9. URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.