SATYA DEVI Vs. PUNJAB SINGH & OTHERS

JUDGEMENT

(1.) The impugned order of the learned trial Court stands rendered upon an application instituted before it by the defendant/petitioner herein under the provisions engrafted in Section 45 and 73 of the Indian Evidence Act wherein a prayer stood ventilated by the petitioner herein of a direction being rendered, for an expert concerned opining qua the authenticity of the purported thumb impressions of the predecessor-in-interest of the petitioner existing on sale deed purportedly executed by him on 5.8.1964 qua the suit property on his comparing his thumb impressions existing on sale deed of 14.10.1960 also executed by the aforesaid. The application stood dismissed by the learned trial Court, hence the instant application at the instance of the defendant/petitioner herein for assailing the findings recorded therein.

(2.) The learned trial Court stood constrained to dismiss the application at hand on the score of it being a document 30 years old hence a presumption of truth standing imputed to not only to its contents and recitals but also to the purported thumb impressions borne thereon of the predecessor-in-interest of the petitioner herein. The aforesaid reason which stands ascribed by the learned trial Court is perse fallacious besides grossly off the mark from the legal principles governing the adjudication of an application under Section 45 of Indian Evidence Act preferred before it especially when the concert of the defendant/petitioner herein to obtain an opinion from the expert concerned qua the factum as referred to hereinabove would have ousted besides displaced the presumption of truth as stands imputed by Section 90 of the Indian Evidence Act qua validity of its contents and recitals and even to the thumb impressions besides signatures borne on a document which is 30 years old and which stands retrieved from proper custody. Since the presumption as stands imputed by the learned trial Court was a rebut-able one necessarily the reason assigned by the learned trial Court to dismiss the application at hand harbored upon purported conclusivity enjoyed by the presumption encapsulated in section 90 of the Indian Evidence Act, suffers a gross falsity. Even though the aforesaid legal fallacy inherent in the impugned order of the learned trial Court constrains this Court to hence proceed to accept the petition at hand, nonetheless the learned counsel for the respondents has concerted to contend with much vigor qua the application meriting dismissal arouse-able from lack of admitted thumb impressions of the predecessor-in-interest of the defendant/petitioner herein defacilitating the expert concerned to with it compare his purported fictitious thumb impressions as stand borne on the sale deed of 1964 executed qua the suit property by the aforesaid. The above argument as addressed before this Court by the learned counsel for the plaintiffs/respondents herein is off the mark in as much as with there being a palpable display in the application at hand of the defendant/petitioner herein concerting to belie the thumb impression of his predecessor-in-interest contained in the sale deed of 1964 on its comparison by the expert concerned with the ones belonging to him as exist in the sale deed of 1960, yet, even when the said manner of comparison by the expert concerned of the purported fictitious thumb impressions of the predecessor-in-interest of the defendant/petitioner borne on the sale deed of 1964 with his thumb impressions existing on the sale deed of 1960 stood displayed with clarity in the application at hand, the plaintiffs/respondents herein did not furnish an apposite reply to it anvilled upon the fact of the aforesaid concert being liable for its standing discountenanced rather they assayed to reject the apposite application merely for the reason of the sale deed of 1964 being a document more than 30 years old besides standing retrieved from proper custody hence its enjoying a perse conclusive statutory presumption of truth qua its contents and recitals besides qua the genuineness of the thumb impressions of the purported predecessor-in-interest of the defendant/petitioner herein borne thereon, on anvil whereof the learned trial Court proceeded to untenably dismiss the application. The reason underscored by the trial Court in dismissing the application at hand gives leeway to this Court to conclude of when the plaintiffs/respondents herein stood rather enjoined to mete a contention in their reply to the application aforesaid preferred before the learned trial Court by the defendant/petitioner herein with a recital therein of the thumb impressions of the predecessor-in-interest of the defendant/petitioner herein borne on sale deed of 1964 purportedly not belonging to their predecessor-in-interest and which stood concerted to be belied by theirs resorting to theirs seeking theirs standing compared by the expert concerned with his thumb impressions existing in the sale deed of 1960 rather being an inapt mode of comparison thereof arising from the factum of the thumb impressions of the predecessor-ininterest of the defendant/petitioner herein existing on the sale deed of 1960 not constituting his admitted thumb impressions hence precluding their intra-se comparison by the expert concerned. Nonexistence of the aforesaid contention in the reply of the plaintiffs/respondents to the apposite application preferred before the learned trial Court constrains this Court to conclude of the plaintiffs/respondents herein acquiescing qua the factum of the thumb impression of the predecessor-in-interest of the defendant/petitioner herein existing on sale deed of 1960 constituting his standard admitted thumb impressions. Consequently, the endeavor of the petitioner herein to belie the thumb impression of the predecessor-in-interest of the defendant/petitioner herein existing on the sale deed of 1964 on its standing compared by the expert concerned with the admitted standard thumb impression of the predecessor-in-interest of the defendant/petitioner herein borne on the sale deed of 1960 was an apt and tenable mode to displace the presumption of truth constituted in Section 90 of the Indian Evidence Act qua the recitals and thumb impressions of the predecessor-in-interest of the defendant/petitioner herein borne on the sale deed of 1964. Consequently the petition is allowed and the impugned order is quashed and set aside.

(3.) Any observations made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observations made herein above.