THOMAS VARGHESE Vs. SIVADHASAN

JUDGEMENT

(1.) THE appellant is the first defendant in OS No. 52 of 2006 on the file of the Court of the Munsiff of Perumbavoor. The first respondent is the plaintiff and respondents 2 to 8 are defendants

(2.) TO 8 respectively therein. The suit instituted by the first respondent to set aside Ext. A1 sale deed dated 02/01/2006 and for partition and separate possession of his 1/8th share in the plaint schedule property was dismissed by the Trial Court. Aggrieved thereby, he filed AS No. 69 of 2009 in the Court of the Subordinate Judge of Perumbavoor. By judgment delivered on 23/12/2011, the lower Appellate Court allowed the appeal, set aside the decree and judgment of the Trial Court and remanded the suit for fresh trial. Such an order happened to be passed in view of the reception of additional evidence by the lower Appellate Court on an application by the plaintiff. The brief facts of the case are as follows. 2. The plaintiff and defendants 2 to 8 are the children of late Kalyani. The plaint scheduled property was allotted to her share as per the final decree for partition passed in OS No. 300 of 1989 on the file of the Court of the Munsiff of Perumbavoor. She died intestate and on her death, ft devolved on the plaintiff and defendants 2 to 8. The suit was instituted on the allegation that at a point of time when the plaintiff was residing at Malappuram, defendants 2 to 8 executed Ext. A1 sale deed in favour of the first defendant transferring the plaint scheduled property to him and for that purpose the signature and thumb impression of the plaintiff were affixed by someone who impersonated him in the document of conveyance and in the records in the Sub Registrar's Office. He alleged that such a sale deed was executed with an intention to defraud him.

(3.) AGGRIEVED by the decree of dismissal, the plaintiff filed AS No. 69 of 2009 in the Court of the Subordinate Judge of Perurmbavoor. Prior to the institution of the suit, the plaintiff has filed a complaint before the Kunnathunadu Police Station. After investigation, the police filed a final report and the case is presently pending as CC No. 349 of 2008 on the file of the Court of the Judicial First Cfass Magistrate of Kolenchery. It appears, in that case the specimen thumb impression of the plaintiff (de facto complainant) was taken and it was sent for expert opinion to the Finger Print Bureau, Thiruvananthapuram along with the thumb impression of the plaintiff occurring in the register maintained in the Sub Registrar's Office, Puthencruz. The Director of Finger Print Bureau thereupon forwarded the report of the Finger Print Expert to the Judicial Magistrate of the First Class along with his letter dated 05/01/2008. After a certified copy of the said report was obtained, the plaintiff filed IA No. 1702 of 2011 in AS No. 69 of 2009 praying that the certified copy of the report submitted by the Finger Print Expert may be received into additional evidence under Order 41 Rule 27(aa) of the Code of Civil Procedure. The lower Appellate Court allowed the said application, set aside the decree and judgment of the Trial Court and remanded the suit for fresh disposal after affording both sides an opportunity to adduce further evidence if any. The Trial Court was directed to receive the additional document filed along with IA No. 1702 of 2011 into evidence. Aggrieved thereby, the first defendant has filed this appeal.