DULAL CHANDRA ADAK Vs. GUNADHAR PATRA

JUDGEMENT

(1.) This appeal is preferred impugning two judgments and decrees passed by the learned appellate Court below namely the learned Additional District Judge, Midnapore in Title Appeal No. 121 of 1984 and the learned trial Judge, viz., the learned Assistant District Judge 3rd Court at Midnapore in Title Suit No. 115 of 1976. Both the learned Court below held in favour of the respondents Nos. 1 and 2 who were the plaintiffs in the suit. The suit filed by the respondents Nos. 1 and 2/plaintiffs amongst other principally for partition and administration of the properties left behind by one Nandalal Adak, since deceased. In the said suit another relief has been claimed by the plaintiffs for declaration that the deed of gift allegedly executed by Nandlal Adak, since deceased in favour of the appellants herein is not binding upon the plaintiffs and the same are forged and fabricated document. The bone of contention in the present appeal as well as the suit is whether the said deed of gift dated 5th August, 1973 is a valid and lawful document or not. In other words, whether or not the said deed of gift was validly and lawfully executed by Nandalal Adak, since deceased. Both the learned Court below held that the said deed of gift is a fabricated document and the same has not been executed and registered by Nandalal Adak lawfully. During pendency of the appeal 1 in this Court the plaintiff No. 1 along with the appellants herein made an application in this Hon'ble Court for compromise. In the said compromise petition filed on 10 Mar. 1988 the plaintiff/respondent No. 1 has categorically stated that the said deed of gift was validly and lawfully executed by Nandalal Adak. In his petition the plaintiff No. 1 has in effect contradicted his own stand in the plaint. At the time of hearing both the parties agreed I should decide the suit itself, on the basis of the material available before me, as both the judgments and decrees of the learned Court below are liable to be set aside under the law. It is submitted jointly that I can do so under Order XLII, Rule 1 read with Order XLI, Rule 24 of the Code of Civil Procedure.

(2.) Mr. Tarak Nath Roy, the learned Advocate appearing in support of the appeal, submits that both the learned Courts below have gone wrong while declaring that the said deed of gift is fabricated document upon impersonation. The learned both the Courts below came to the conclusion on the basis of evidence of the finger print expert and without considering rather brushing aside the direct evidence adduced by the appellants. It is also his submission that averments made in the plaint are inconsistent and/or contradictory inasmuch as the plaintiffs on the one hand admitted the execution and signature of the donor by making out case of undue influence and misrepresentation, on the other hand the plaintiffs have denied and disputed the execution and registration of the donor alleging impersonation and forgery. Therefore, he submits these two allegations cannot run side by side. It is his submission further that where there is a case of undue influence and misrepresentation, the genuineness of signature and/or thumb impression of the author of the document is admitted. But in the case of forgery and/or impersonation the question of undue influence and misrepresentation is beyond question. He submits further that in the said compromise petition one of the plaintiffs has categorically admitted that the said deed of gift is a valid piece of document, such admission squarely binds another plaintiff namely the other respondent under Section 18 of the Evidence Act, 1872. Mr. Roy further submits that the learned trial Judge has exceeded his jurisdiction by not following the order of direction given by the learned appellate Court below passed in the order of remand dated (sic).

(3.) Mr. Basu appearing for the respondent No. 2 submits that all the materials and evidence are galore whereby it will be evident that the said alleged deed of gift is a forged one. Mr. Basu submits that the case of undue influence and misrepresentation on behalf of his client is not pressed. His client wants to proceed on the basis of forgery. He urges that I should decide this suit on the question of fraud and forgery. He submits it will appear from the evidence of the finger print expert and his report that the thumb impression was not put by Nandalal Adak since deceased but by one Kanailal Bara. Therefore, when there is an evidence of an expert both oral and documentary on this specialised subject, the Court should accept his evidence not other evidence.