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2018 DIGILAW 2771 (JHR)

Habib Ansari v. Jasim Ansari

2018-12-17

SHREE CHANDRASHEKHAR

body2018
JUDGMENT : The petitioners, who are the plaintiffs in Title Suit No.93 of 1996, are aggrieved of order dated 19.05.2018 by which the defendants have been permitted to examine the Finger-Print Expert-Sita Ram Prasad Sharma as a witness to prove the report. They have challenged a part of the order dated 01.05.2017 also; by this order the defendants were permitted to ensure attendance of the Finger-Print Expert on their own. 2. Briefly stated, Title Suit No.93 of 1996 has been instituted for a decree for declaration of the plaintiffs’ and the proforma defendants’ title and possession over the suit land and for confirmation of their possession thereon, and in the alternative a decree for recovery of possession to the plaintiffs and the proforma-defendants if they are found dispossessed. Claiming that the sale-deed dated 24.08.1936 allegedly executed by Seikh Rahmat Ali in favour of Seikh Ramjan has been fraudulently obtained, the plaintiffs seek a declaration that the sale-deed dated 24.08.1936 is illegal, inoperative, invalid and void. The plaintiffs have pleaded that they along with the proforma defendants are descendants of Jhanku Jolha, who was one of the recorded tenants of the lands comprised under Khata No.30 situated in village-Kothar. After death of the said Jhanku Jolha; his brother Gansu Jolha died issueless and Nanku Jolha died unmarried during the life time of Jhanku Jolha, the entire land comprised under Khata No.30 which had come in possession of Jhanku Jolha and who continued to pay rent to the ex-landlord and after the vesting who was recognized as tenant by the State of Bihar, devolved upon his son-Rahmat Ali. The said Rahmat Ali continued to pay rent to the State of Bihar and rent receipts were issued in the name of his father. The plaintiffs have asserted that through sale-deed dated 20.02.1970 about 0.80 acres land in Khata No.30 and through sale-deed dated 14.05.1979 about 0.1 acres land were sold by Rahmat Ali to Mansukhlal and Mannu Ravidas. On 27.08.1983, Rahmat Ali died and his wife, son and the daughters inherited his properties. 3. The plaintiff no.1 is son of Rahmat Ali and the plaintiff no.2 is the grand-son of Rahmat Ali; his father namely, Mubarak Ali was one of the three sons of Rahmat Ali. On 27.08.1983, Rahmat Ali died and his wife, son and the daughters inherited his properties. 3. The plaintiff no.1 is son of Rahmat Ali and the plaintiff no.2 is the grand-son of Rahmat Ali; his father namely, Mubarak Ali was one of the three sons of Rahmat Ali. The defendants contested the suit by raising various objections to the maintainability of the suit, however, they have admitted the plaint averments in paragraph nos.1 to 5 whereunder the chronology of events how the land in question came to Jhanku Jolha has been narrated. The defendants have laid a claim over the suit property by virtue of sale-deed dated 24.08.1936 which they claim has been executed by Rahmat Ali in favour of their father namely, Ramjan Seikh. The defendants have further pleaded that by virtue of order dated 11.08.1936 passed by the Deputy Commissioner, Hazaribagh in Case No.51 of 1936-37 permission was granted for transfer of 1.66 acres land by Rahmat Ali in favour of their father who continued to pay rent in respect of 1.66 acres land. 4. During pendency of the suit, an application for summoning the Thumb Impression Register from the office of the sub-Registrar, Gola for comparison of thumb impression of Rahmat Ali on the sale-deed dated 24.08.1936 with his thumb impression over the sale-deed dated 20.02.1970 was filed by the plaintiff. This application was initially dismissed by the trial court by an order dated 24.03.2011, however, this Court by an order dated 21.12.2011 passed in W.P.(C) No.2014 of 2011 permitted the plaintiff to get the thumb impression of Rahmat Ali compared by an expert. One such report has been obtained and it has been taken on record, marked as Exh.-5. The defendants filed their objection to the report, which was rejected by the trial Judge on 05.10.2012. The writ petition- W.P.(C) No.6583 of 2012 challenging the order dated 05.10.2012 was dismissed by an order dated 20.03.2013, however, the writ Court has observed as under: “However, it is clarified that in view of the observation made by the court below in the last paragraph of its order, one last opportunity to the defendants is required to be given to adduce evidence in rebuttal. According to the learned counsel for the petitioners, since this writ petition was pending before this court, the opportunity as given by the learned court below has not been explored by the defendants till date. According to the learned counsel for the petitioners, since this writ petition was pending before this court, the opportunity as given by the learned court below has not been explored by the defendants till date. Now as this writ petition has been disposed of, the petitioners-defendants may be given opportunity to adduce evidence in rebuttal as it has been observed by the court below in the last paragraph of its order.” 5. Now, the defendants filed an application for comparison of the thumb impression of Rahmat Ali on sale-deed dated 24.08.1936 with his thumb impression over sale-deed dated 14.05.1979. This application was dismissed by the trial Judge and the writ petition being W.P.(C) No.7674 of 2013 challenging the order dated 28.11.2013 was disposed of, in the following term : “Having heard learned counsel for the parties and considered the facts and materials on record, I find force in the submission of learned counsel for the respondents. The petitioners have admitted that instead of getting opinion of the expert on the deed in question with the sale deed earlier examined by the expert, the petitioners have sought comparison of the signature with a third deed. The petitioners were given opportunity by this Court to rebut the said opinion, if any, by adducing evidence but instead thereof the petitioners made prayer for getting it compared with other deed, which was not concurred with the earlier report of the expert. I find no error in the impugned order. However, in course of hearing, the petitioners sought liberty to pray before the court below for one more opportunity to adduce evidence in rebuttal, in view of the prejudice likely to be caused to the petitioners, petitioners are given liberty to make similar prayer before the learned court below disclosing the nature of evidence intends to bring on record in rebuttal. Considering the above, this writ petition is disposed of giving liberty to the petitioners to file a fresh petition before learned court below seeking such indulgence of the court. If such petition is filed, learned court below shall consider the same and pass appropriate order including imposition of compensatory cost in case of affording such opportunity.” 6. The defendants thereafter filed two application; one dated 03.04.2014 for comparison of the thumb impression of Rahmat Ali with sale-deed dated 20.02.1970 and another application dated 22.05.2014 for examination of the Hand Writing Expert-Sita Ram Prasad Sharma. The defendants thereafter filed two application; one dated 03.04.2014 for comparison of the thumb impression of Rahmat Ali with sale-deed dated 20.02.1970 and another application dated 22.05.2014 for examination of the Hand Writing Expert-Sita Ram Prasad Sharma. On 25.03.2015, the application dated 03.04.2014 was allowed by the trial Judge and consequently the application dated 22.05.2014 was held to have become infructuous. In W.P.(C) No.1347 of 2015, the Plaintiffs have challenged the order dated 25.03.2015 by which the aforesaid two applications filed by the defendants have been disposed of. This writ petition has been disposed of by an order dated 07.12.2016, by observing as under: “8. The Defendants being conscious of the limitation under which they were required to adduce evidence in rebuttal, chose to file 2 applications, one dated 3.4.2014 and other dated 22.5.2014. The prayer made in the application dated 22.5.2014 was in accord with the observations made by the Writ Court in the judgment dated 25.2.2014. However, prayer made in the application dated 3.4.2014 in fact amounted to undertaking fresh exercise of examination of the documents in question through handwriting experts, which was not purport of the order passed earlier by this Court. The learned Court below has therefore fallen in an error in directing so. 9. It is however clarified that if the Defendants in rebuttal intend to adduce evidence on the basis of any expert's opinion obtained by them, as also reflected from their application dated 22.5.2014 (Annexure-12), they are at liberty to do so. However, any fresh exercise and that too with the assistance of the Court is not warranted in the background of the case. With the aforesaid observations, the impugned order dated 25.3.2015 passed by Senior Civil Judge- IV, Hazaribag in Title Suit No. 93 of 1996(Annexure-14) is modified in the manner and to the extent indicated hereinabove.” 7. In the aforesaid facts, when the defendants filed an application for examining the said Hand-Writing Expert-Sita Ram Prasad Sharma for his evidence in Title Suit No.93 of 1996, the trial Judge allowed the said application. 8. The order dated 01.05.2017 by which liberty was granted to the defendants to produce the Hand-Writing Expert- Sita Ram Prasad Sharma on their own and order dated 19.05.2018 by which the defendants have been permitted to examine the said Hand-Writing Expert as a witness have now been challenged by the plaintiffs. 9. Mr. 8. The order dated 01.05.2017 by which liberty was granted to the defendants to produce the Hand-Writing Expert- Sita Ram Prasad Sharma on their own and order dated 19.05.2018 by which the defendants have been permitted to examine the said Hand-Writing Expert as a witness have now been challenged by the plaintiffs. 9. Mr. Rajeev Ranjan Tiwary, the learned counsel for the petitioners submits that once this Court by an order dated 25.02.2014 passed in W.P.(C) No.7674 of 2013 has rejected the prayer of the defendants for comparison of the signature of Rahmat Ali with sale-deed dated 14.05.1979, now the trial court cannot permit any evidence in connection to the sale-deed dated 14.05.1979. 10. Pleadings of the parties would reflect that the dispute in respect of the schedule-B land, which is the suit schedule land, is primarily confined to validity of the sale-deed dated 24.08.1936. In the first instance, the plaintiffs intended to compare the signature of their father on this sale-deed with his signature on the sale-deed dated 20.02.1970. Their prayer was allowed and the report of the Hand-Writing Expert has been taken on record as Exh.-5. The procedure for hearing in the suit and examination of witnesses as laid down under Order XVIII CPC would indicate that the plaintiff has the right to begin unless a defendant admits the facts alleged by the plaintiff and contains that either in point of law or on some additional facts alleged by the defendants if the plaintiff is not entitled for a part of the relief, in which case the defendant has the right to begin. A defendant obviously would have a right to lead evidence in rebuttal. The orders passed by this Court particularly order dated 21.12.2011, 22.05.2014 and 07.12.2016 affirm this right of a defendant. 11. By an order dated 21.12.2011, this Court has granted a liberty to the defendants to adduce evidence in rebuttal. Order dated 25.02.2014 by which liberty has been granted to the defendants to file a fresh petition records that in view of the prejudice which is likely to be caused to the defendants they must be permitted to lead evidence in rebuttal. It is not in dispute that the report of the said Hand-Writing Expert on comparison of the finger-print of Rahmat Ali on the sale-deed dated 24.08.1936 with the sale-deed dated 14.05.1979 is on record (para-5 of the application dated 22.05.2014). It is not in dispute that the report of the said Hand-Writing Expert on comparison of the finger-print of Rahmat Ali on the sale-deed dated 24.08.1936 with the sale-deed dated 14.05.1979 is on record (para-5 of the application dated 22.05.2014). This stand has not been controverted by the plaintiffs. The plaintiffs’ stand is that in view of the order dated 25.02.2014 the said Hand-Writing Expert cannot be examined during the trial of Title Suit No.93 of 1996. The document which has already been taken on record and, thus, has been considered necessary by the trial Judge for adjudication of the dispute involved in the suit, now if not permitted to be proved through the maker of the report, it cannot be taken in evidence. Not only that, if the said Hand-Writing Expert is examined as a witness, the plaintiffs would have a liberty to cross-examine the said witness and that would illicit the truth in the case. 12. In view of the aforesaid facts, objection of the petitioners, who are the plaintiffs in the suit, on examination of the said Hand-Writing Expert is unsustainable, if not frivolous. 13. In the above facts, the writ petition is dismissed. 14. To conclude hearing in the suit, expeditiously, as ordered by the writ Court in the previous proceeding, the trial Judge is directed to post the matter for examination of the said witness namely, Sita Ram Prasad Sharma, within four weeks. Thereafter, the suit shall be finally decided within a period of three months without granting any adjournment to any of the parties, but for just excuse.