JUDGMENT : Sureshwar Thakur, J. This appeal stands directed against the impugned judgement of the learned Additional District Judge, Una, Himachal Pradesh, whereby it allowed the appeal preferred before it by the plaintiffs and set aside the judgment and decree, rendered on 7.6.2005 by the trial Court. 2. The facts necessary for rendering a decision in the instant appeal are that suit land was owned and possessed by one Julfi Ram son of Surjan who happened to be the real brother of plaintiffs and defendant No.3. The said Julfi Ram was stated to be unmarried and had died intestate having been succeeded by his four brothers i.e. plaintiffs and defendant No.3. Plaintiffs claim that they had come in possession of the suit land and the defendants No. 1 and 2 had no right, title or interest in the suit land. The defendants No. 1 and 2 were further alleged to have got wrong and an illegal mutation No. 32 sanctioned in their favour on 14.1.1994 without any basis in connivance with the revenue officials. Decree for declaration had been sought by the plaintiffs that they and defendant No.3 are owners in possession of the suit land. The mutation of succession sanctioned on 14.1.1994 in favour of defendants No. 1 and 2 was also challenged being wrong illegal null and void. Consequently, relief of permanent injunction restraining the defendants from interfering in the possession of the plaintiffs or changing the nature of the suit land was also sought. 3. The defendants resisted and contested the suit by taking preliminary objection qua suit being bad for want of enforceable cause of action, locus standi of the plaintiffs to file the suit was denied apart therefrom its being bad for misjoinder of defendant No.3. On merits it was the case of the defendant that the entire estate of late Julfi Ram had been succeeded by defendants No. 1 and 2 on the basis of a valid will having been executed in their favour on 6.1.1993 in a sound disposing mind. As per the defendants since the said Julfi Ram was looked after by the defendants during his life time, as a token of their service the deceased Julfi Ram had executed a valid Will in their favour. As a sequel thereto the mutation was alleged to have been rightly sanctioned on the basis of the said Will. 4.
As per the defendants since the said Julfi Ram was looked after by the defendants during his life time, as a token of their service the deceased Julfi Ram had executed a valid Will in their favour. As a sequel thereto the mutation was alleged to have been rightly sanctioned on the basis of the said Will. 4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties at contest:- 1. Whether the plaintiffs and defendants No. 3 are owners in possession of the suit land? OPP. 2. Whether the mutation No. 32 dated 14.1.1994 sanctioned by A.C. 2nd Grade, Una, is wrong, illegal, null and void, as alleged? OPP. 3. Whether the plaintiffs have no cause of action? OPD. 4. Whether the suit is not maintainable, as alleged? OPD. 5. Whether the plaintiffs have no locus-standi to file the suit? OPD. 6. Whether the suit is bad for misjoinder of necessary parties, as alleged? OPD. 7. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction as alleged? If what is correct valuation of suit property? OPD. 8. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs yet the learned First Appellate Court allowed the appeal preferred therefrom before it by the plaintiffs. 6. Now the defendants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 21.08.2008 this Court admitted the appeal on the hereinafter extracted substantial question of law:- “1. Whether the Appellate Court has committed illegality by shifting the burden of proof of proving the report of finger print expert on present appellants/defendants? 2. Whether the impugned judgement and decree of the Appellate Court is a result of mis-apprecitation and mis reading of evidence particularly Ext. DW- 2/A?” Substantial questions of law. 7. Defendants No. 1 and 2 had on anvil of a testamentary disposition executed vis.a.vis them qua his estate by one Julffi Ram staked claim qua the suit property.
2. Whether the impugned judgement and decree of the Appellate Court is a result of mis-apprecitation and mis reading of evidence particularly Ext. DW- 2/A?” Substantial questions of law. 7. Defendants No. 1 and 2 had on anvil of a testamentary disposition executed vis.a.vis them qua his estate by one Julffi Ram staked claim qua the suit property. Their claim for title to the suit property ensuing from theirs holding a valid testamentary disposition of the deceased testator secured approbation from the learned A.C. 2nd Grade, Una concerned, comprised in his thereupon attesting mutation number 32 on 14.1.1994 qua the suit property vis.a.vis the defendants No.1 and 2. 8. The factum of proof of Ext.DW-2/A within the ambit of the statutory mandate of Section 63 of the Indian Evidence Act stood purveyed by the propounders of Will Ext.DW-2/A comprised in theirs affirmatively examining a marginal witness thereto. However, proof in the aforesaid manner as stood adduced by the propounders of Will comprised in Ext.DW-2/A qua thereupon its standing construeable to be proven to be validly and duly executed by the deceased testator visibly holds no vigour tritely with the finger print experts in their apposite reports in sequel to theirs holding comparison of the disputed thumb impressions of the deceased testator occurring on the relevant testamentary disposition comprised in Ext.DW-2/A with his uncontroverted admitted thumb impressions, unveiling an opinion qua the thumb impressions of the deceased testator Julfi Ram borne on Ext.DW-2/A not holding compatibility with his uncontroverted admitted thumb impressions whereupon they recorded a conclusion qua the thumb impressions of the deceased testator borne on Ext.DW-2/A not holding any aura of authenticity. The pronouncements recorded by the finger print expert (s) sweepingly effaces the concert of the defendants, to through a marginal witness to Ex. DW-2/A to prove the factum qua its valid and due execution within the ambit of the statutory mandate also thereupon the testimony of the marginal witness to Ext.DW-2/A looses its creditworthiness. However, the learned trial Court had dispelled the vigour of the relevant report (s) furnished by the finger print expert (s) on the score of theirs being inadmissible in evidence, inadmissibility whereof stood pronounced by it to spur from omission of their respective authors standing examined in proof thereof.
However, the learned trial Court had dispelled the vigour of the relevant report (s) furnished by the finger print expert (s) on the score of theirs being inadmissible in evidence, inadmissibility whereof stood pronounced by it to spur from omission of their respective authors standing examined in proof thereof. The sinew of the dispelling by the learned trial Court of the sanctity of the apposite opinion (s) recorded by the finger print expert (s) on the relevant material transmitted to them for theirs unveiling their opinion thereon, is magnifingly bereft of any validation. An authoritative pronouncement recorded by the Hon'ble High Court of Kerala in case Parukuty Amma Vs. Thankam Amma 2004 (2) Civil Court cases 33, relevant paragraph whereof stands extracted hereinafter “In this connection, it is to be remembered that there is a different between the opinion of the expert with regard to the handwriting and the opinion of the expert with regard to the thumb impression. There is no forgery possible with regard to the thumb impression whereas an expert in forgery can write exactly like the original handwriting of another person. This distinction is well recognized by the decision of the Supreme Court in Jaspal Singh vs. State of Punjab, AIR 1979 SC 1708 . the Supreme Court has stated that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. This decision was followed by this Court in various decision including one by a Division Bench in Jamesh @ Chacko Vs. State, 1994 (1) KLJ 871 , even in a case where the impression was smudged but not to the extent of impossibility of comparison. According to the learned counsel whether it is thumb impression or handwriting they are only relevant facts as contained in Section 45 of the Evidence Act and this Court has to arrive at an opinion after taking into account the report of the expert with the evidence.” wherewithin it stands accentuatedly pronounced qua the solemnity of authenticity of determination by a finger print expert of thumb impressions by his adopting the relevant mode falling within the domain of best besides precise scientific evidence whereupon it concluded of the relevant opinion recorded by the finger print expert (s) being unamenable for its standing discounted.
The apt ensual therefrom is qua the report (s) of the finger print expert (s) especially when hereat they emanated from a government agency holding a sacrosanct pedestal of theirs being per se admissible in evidence also reliance being imputable thereupon without insisting upon their author (s) to prove their contents unless the relevant unfoldments occurring therein stand impugned by the defendants. However, the defendants as unraveled by an order of the learned trial Court recorded on 5.4.2004 omitted to at the time of theirs standing tendered therebefore purvey thereat their apposite objections thereto rather they thereat communicated qua it being unamenable for consideration at the stage of theirs standing tendered therebefore rather their impact upon the efficacy of the evidence adduced by the defendants pronouncing upon the valid and due execution of Ext.DW-2/A being open to be determined by the learned trial Court. Consequently, the aforesaid unfoldments make a palpable display of the defendants acquiescing to the recitals occurring in the report (s) of the finger print expert (s) concomitantly also theirs not impugning the validity of the report (s) besides theirs not assailing the opinion (s) recorded therein whereupon obviously when for reasons aforestated unless they stood impugned by the defendants theirs on their mere tendering being readable without their authors proving theirs contents whereas with the defendants not purveying their objections thereto neither they impugning them whereupon hence with the apt condition for theirs being unreadable in evidence unless their respective authors stood examined remaining unsubstantiated rendered them to be readable besides admissible in evidence. 9. For reasons aforesaid this Court concludes with aplomb of the judgement and decree of the learned first Appellate Court standing sequelled by its appraising the entire relevant evidence on record in a wholesome and harmonious manner apart therefrom it is obvious that the analysis of relevant material on record by the learned appellate Court not suffering from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the relevant material available on record. I find no merit in this appeal, which is accordingly dismissed and the judgment and decree of the learned Appellate Court is maintained and affirmed. Substantial questions of law stands answered against the defendants. Decree sheet be prepared accordingly. All pending applications stand disposed of accordingly. No costs.