KARTAR SINGH Vs. SUKH DEV SINGH

JUDGEMENT

(1.) KARTAR Singh plaintiff filed a suit for possession against the defendants on the basis of ownership. The defendants contested the suit, inter alia, contending that the suit land was owned by the plaintiff but about 17 years ago it was transferred to them by virtue of an exchange deed dated March 15, 1963 executed between the parties. The plaintiff appeared as his own witness. The defendants put the exchange deed to the plaintiff, but he denied his signatures as also the thumb impression appearing on it. Thereafter, the defendants produced their own evidence. The onus of the issue to prove the exchange deed was on the defendants. The defendants examined some witnesses and produced an entry from the Deed Writer's register being Exhibit DW 2/1 as also a mortgage deed and gift deed which were alleged to be bearing the signatures of Kartar Singh plaintiff. The defendants thereafter closed their evidence. The plaintiff with a view to rebut the evidence of the defendants produced by them on the question of proving the exchange deed, examined a Documents and Handwriting expert Dewam K. S. Puri as PW-l2 in order to prove his report Exhibit PW-12/a in respect of his opinion about the signatures and thumb impression of Kartar Singh plaintiff on the exchange deed as also to falsify that handwriting of entry exhibit DW I in the register of the Deed Writer and on the exchange deed is not of one and the same person. Mr Puri while appearing as PW-12 deposed that signatures appearing on the exchange deed already on the record did not tally with the signatures of Kartar Singh appearing on the mortgage deed as also on the gift deed He further deposed that thumb impression appearing on the exchange deed already available on the record of the case was not comparable being faint He also deposed that body writing on the exchange deed is not in the handwriting of the person who has written entry Exhibit DW-2/1. The witness, when confronted with another copy of the exchange deed obtained by the defendants from the office of the Sub Registrar stated that upper portion of the thumb showed some ridges and he could give correct opinion after taking photographs, as to whether it is comparable or not It is in these circumstances, the defendants moved an application for permission to the Documents and Handwriting Expert to take photographs of the thumb impression of Kartar Singh plaintiff from the copy of the exchange deed so confronted, so as to enable him to compare the same with the thumb impression of Kartar Siagh plaintiff which may also be order-ed to be taken in the Court. The application was opposed. The trial Court, however, by order dated May 18, 1991, allowed the application thereby granting permission to Dewan K. S. Puri, Documents Expert to take photographs of the thumb impressions of Kartar Singh plaintiff from the exchange deed. It is against this order, the present revision petition has been filed.

(2.) AFTER going through the record of the case, I am of the view that this revision petition must succeed The case of the defendants, as pleaded in the written statement was that they have become Owners of the suit land by virtue of an exchange deed. The onus to prove this fact was obviously on the defendants and they did not produce any Handwriting Expert to prove the thumb impression or signatures of Kartar Singh appearing on the exchange deed Exhibit D-1 by requesting the Court to take the signatures and thumb impression of Kartar Singh and then producing the Expert who could compare the same with the disputed thumb impression/signatures on the document. The defendants not be permitted to prove a document which they have failed to produce or prove when opportunity was afforded to them to prove their case. The defendants ought to have put this document to the plaintiff when he appeared as his own witness and in case he had denied his thumb impression thereon, the defendants could lead such evidence they thought fit to prove the documentor the thumb impression of the plaintiff thereon Having failed to do so, they cannot now have the opinion of the Expert of the plaintiff When he is leading evidence in rebuttal If the defendant were sure that the thumb impression on the exchange deed was that of Kartar Sing, they were well within their right to produce such evidence which might have been considered necessary. It was only then permissible to the defendants to put the document to the witness The defendants cannot be permitted to go any further and on the basis of the answer given by the witness, permitted to produce evidence which they were at liberty to do so while leading evidence in support of their case There was thus, no occasion to grant permission to the defendants to produce the document which in a way amounts to rebuttal of the rebuttal evidence The defendants in my view could not be permitted to fill in the lacuna in their evidence at the stage of rebuttal evidence by permitting them to produce a copy of the exchange deed from the office of the Sub Registrar, Dhuri which is not a part of the record.

(3.) FOR the reasons recorded above, the revision petition is allowed and the impugned order passed by the trial Court is set aside. The trial Court is now directed to dispose of the suit as expeditiously as possible in accordance with law as the suit relates to the year 1987. No costs.