Ram Kishun Yadav v. Ramswaroop Yadav

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.484 of 2019 ====================================================== 1.

Ram Kishun Yadav son of Late Pokhan Yadav, 2.

Kesar Yadav son of Late Pokhan Yadav, 3.

Bhuneshwar Yadav son of Late Pokhan Yadav, All are residents of village- Bhare, Tola- Barki Dhuba, Police Station Fatehpur, District-Gaya.

... ... Plaintiffs-Petitioners

Versus

1.

Ramswaroop Yadav son of Late Kameshar Yadav, 2.

Ramroop Yadav, son of Late Kameshar Yadav, Both are resident of village- Bhave Tola, Barki Dhubha, Police Station- Fatehpur, District-Gaya.

3.

Malo Devi, daughter of Late Kameshar Yadav, resident of village, Hamjo, Police Station- Wazirganj, District- Gaya.

4.

Sabuja Devi, daughter of Late Kameshar Yadav, resident of villageManiyara, Police Station- Muffasil, District- Gaya. 5.

Krishna Yadav husband of Late Sabita Devi, resident of village- Ashrail, Police Station -Tankuppa, District- Gaya.

6.

Ramdeo Yadav, son of Late Latan Yadav, 7.

Parmeshwar Yadav, son of Late Latan Yadav, 8.

Nandu Yadav, son of Late Jageshwar Yadav, 9.

Deonandan Yadav, son of Late Jageshwar Yadav, 10.

Ramashish Yadav, son of Late Jageshwar Yadav, 11.

Ranjeet Yadav, son of Late Jageshwar Yadav, 12.

Inderdeo Yadav, son of Late Kishun Yadav, 13.

Ram Roop Yadav, son of Late Kishun Yadav, 14.

Nagia Devi, daughter of Late Kishun Yadav, 15.

Sunaina Devi, daughter of Late Kishun Yadav 16.

Nandu Yadav, husband of Kunti Devi, daughter of Late Kisnun Yadav Nos.6 to 16 are residents of village- Bhare Tola, Barki Dhuba, Police Station- Fatehpur, District-Gaya.

.... ....Defendants- Respondents 17.

Mahabir Yadav, son of Late Puna Yadav

2/5 18.

Banbari Yadav, son of Late Puna Yadav, .... ....Nos.17 and 18 are residents of village- Bhare Tola, Barki Dhuba, Police Station- Fatehpur, District-Gaya. ... ... Plaintiffs- Proforma Respondents ====================================================== Appearance :

For the Appellant/s :

Mr.Khatim Reza, Advocate For the Respondent/s :

Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date : 01-08-2019 Heard Mr.Khatim Reza, learned counsel for the petitioner.

2.

This application under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 19.09.2018 passed in Title Suit No.23 of 2015 by the learned Sub-Judge-VII, Gaya whereby the application dated 24.03.2018 filed by the plaintiffs for taking photograph of thumb impression of Soni Gopi over the disputed sale deed and the admitted sale deed and send the same to the Government Forensic Laboratory, Patna for its scientific enquiry and report, has been rejected on the ground that the registered sale deed dated 05.09.2017 is not an admitted document.

3.

The brief facts of the case are that Title Suit No.301 of 2006 ( Title Suit No.23 of 2015) was filed by the

3/5 plaintiffs for declaration of right, title and possession over the entire suit land mentioned in Schedule A, B and C of the plaint. The defendants filed their written statement contesting the case of the plaintiffs. The defendant no.9 Kishun Yadav claimed himself to be the purchaser from Soni Gope and Paran Gope vide registered sale deed dated 19.09.1949 of the disputed land. Thereafter, the plaintiffs filed an application dated 24.03.2018 for taking photograph of thumb impression of Soni Gopi over the disputed sale deed and the sale deed executed by Soni Gope on 05.09.1957 and sending them to the Government Forensic Lab., Patna for its scientific enquiry and report. 4.

The defendant nos.4 to 4B (heirs of original defendant no.9) filed reply dated 09.05.2018 contesting the issue raised by the plaintiffs and opposing the prayer for sending photograph of thumb impression of the sale deeds containing thumb impression of Soni Gope for scientific examination.

5.

Though the petitioners claim the sale deed dated 05.09.1957 to be correct and genuine, the defendants contended that the same is neither admitted nor genuine but a forged and fabricated document prepared by the plaintiffs and thus, the same should not be sent to the Forensic Science

4/5 Laboratory for scientific enquiry as the same would be a futile exercise.

6.

Having considered the rival submissions, the trial court rejected the application dated 24.03.2018 filed by the plaintiffs. The main ground on which the application of the plaintiffs has been rejected is that the thumb impression of Soni Gope on the sale deed dated 05.09.1957 is not admitted by the defendants and cannot be relied to be genuine, bona fide, true and correct.

7.

Having considered the totality of the circumstances, I find that the order impugned is neither without jurisdiction nor the same is perverse. The thumb impression of Soni Gope on the sale deed dated 05.09.1957 is not admitted by the defendants. The defendants have categorically stated in their written objection filed before the trial court that the sale deed dated 05.09.1957 brought by the plaintiffs is not genuine and bona fide rather the same is forged and fabricated. Since the sale deed dated 05.09.1957 is not an admitted document, the trial court held that no purpose would be served by sending the photograph of thumb impression on the sale deed dated 05.09.1957 for comparison with the thumb impression of Soni Gope on the sale deed dated 19.04. 1949.

5/5 8.

Under Section 45 of the Evidence Act, the opinion of an expert is a relevant fact. Such opinion is not binding on the court.

9.

Whenever a party disputes the signature on a document, under Section 73 of the Evidence Act, the discretion is available to the court itself to compare the signature or seek expert's opinion in this regard.

10.

However, the expert's opinion is not conclusive and binding on the court. It has simply a persuasive value.

11.

In that view of the matter, I see no reason to interfere with the order impugned in supervisory jurisdiction under Article 227 of the Constitution of India, which has been passed by the trial court in its discretionary jurisdiction. 12.

The application is dismissed.

(Ashwani Kumar Singh, J) Md. S/- AFR/NAFR NAFR CAV DATE N/A Uploading Date 07.08.2019 Transmission Date