SATIMANI RAY Vs. TARAMANI BHOI

JUDGEMENT

(1.) THESE two writ applications relate to the disputed question of identity of the plaintiff in C.S. No. 521 of 2008 pending before the learned Additional Civil Judge (Senior Division), Puri.

(2.) THE petitioner in both the writ applications filed the aforesaid suit for declaration of title and confirmation of possession. She claimed to be the daughter of one Rajendra Chandra Das. The suit property was a lease -hold property, which was purchased by the father of the plaintiff from one Shyam Sundar Pratihari and Kashinath Pratihari in a registered sale deed dated 19.07.1937. It was the case of the plaintiff that she has been paying rent and the lease has been renewed from time to time and in the hal settlement, it has been wrongly recorded in the name of the State Government. The original defendant in the suit, namely, Maga @ Nikha Bhoi since deceased, filed a suit against the State Government, being, T.S. No. 209 of 1986, only impleading the State as a defendant and seeking a decree for permanent injunction. The said suit, on being decreed, the said original defendant and after him, his legal heirs got their names recorded pursuant to the order passed in R.P. Case No. 245 of 1992. On the basis of such decree and ROR, the original defendant threatened to dispossess the plaintiff, for which the plaintiff -petitioner filed the aforesaid suit originally before the learned Civil Judge (Junior Division), Puri, which was transferred to the court of the learned Civil Judge (Senior Division), Puri on the ground of jurisdiction and was assigned the number as C.S. No. 521 of 2008. The original defendant having expired, his legal heirs have been substituted. No written statement was filed by the defendants. However, they are contesting the suit.

(3.) THE learned trial court, on the said application, passed an order directing the Lawyers for both the parties to present the original plaintiff with documents. The said order was challenged before this Court in W.P.(C) No. 4978 of 2011, inter alia, stating that the onus is on the stranger applicant to prove that she is the original plaintiff and that the Power of Attorney has not been cancelled. It has been stated that as per the advice of the lawyer, W.P. (C) No. 4978 of 2011 was not pressed and was disposed of by order dated 21.4.2011 and a fresh petition under Order 26, Rule 10 (A) C.P.C. read with sections 45 and 73 of the Evidence Act was filed by the petitioner before the learned court below. In the said petition which was filed on 29.3.2011, it was stated that since the plaintiff ­ Satimani Ray is a Christian Missionary activist and used to visit different parts of the Country, it is difficult on the part of the constituted Power of Attorney holder Purna Chandra Biswal to procure her attendance within a short period, for which adjournments were taken earlier. It was further stated that the controversy relating to identity of Satimani Ray can be sorted out for all times to come and it is not necessary at all to await for the appearance of the plaintiff Satimani Ray. A further statement was made that in the meantime, it has been ascertained that the intervenor posing herself as the real plaintiff, cancelled the Power of Attorney executed by the petitioner in favour of Purna Chandra Biswal. When certified copy of Power of Attorney dated 22.08.1994 was applied for, it was found that the same has been cancelled by author deed of 2010 even though Satimani Ray has never come to Puri in 2010. Hence, there are two registered documents dated 22.08.1994, i.e., the original Power of Attorney, which is not disputed by the opposite party ­ intervenor and cancellation deed of 2010 alleged to have been executed by one and the same person, namely, Satimani Ray. The Sub -Registrar office also preserved thumb impression Register, which is later preserved in Computer thumb impression record. The proof of identity of a person can be done by the comparison of thumb impression by an expert and no other mode can establish the identity. Therefore, the thumb impression Register of 1994 and the computerized thumb impression record of 2010 are required to be called for from the office of the Sub -Registrar, Puri for sending the same along with the admitted thumb impression of the intervenor to be obtained in Court for comparison and a report from an expert. However, the counter was filed to the aforesaid application that the said application has been filed to linger the suit. The learned court below rejected the petition and, as such the petitioner has filed W.P.(C) No. 15086 of 2011 for quashing the said order dated 30.04.2011 under Annexure ­ 1. In W.P.(C) No. 17067 of 2011, the petitioner has called in question the orders dated 20.05.2011 and 21.05.2011. The said orders were passed on an application filed by the Power of Attorney holder of the petitioner with a prayer to direct the applicant ­ intervenor, who claims herself as Satimani Ray to remain present in Court for examination and cross - examination to test her identity. By order dated 21.05.2011, the learned court below accepted the fresh Vakalatnama filed by the Advocate on behalf of the applicant ­ intervenor on behalf of the plaintiff and rejected the previous Vakalatnama as well as the Power of Attorney.