Gauhati High Court
Budhi Talukdar And Anr vs Ali Akbar Talukdar And 4 Ors on 25 October, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/5
GAHC010023242015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 461/2015
1:BUDHI TALUKDAR and ANR.
S/O LT. BABUR ALI TALUKDAR, VILL. KAMARDIHI PT.II, P.O. TILAPARA,
P.S. CHAPAR, DIST- DHUBRI, ASSAM
2: AYNAL TALUKDAR
S/O BUDHI TALUKDAR
VILL. KAMARDIHI PT.II
P.O. TILAPARA
P.S. CHAPAR
DIST- DHUBRI
ASSA
VERSUS
1:ALI AKBAR TALUKDAR and 4 ORS
S/O LT. ASARUDDIN TALUKDAR, VILL. KAMARDIHI PART, P.O. TILAPARA,
P.S. CHAPAR, DIST- DHUBRI, ASSAM
2:ACHIYA KHATUN
W/O MANAM SK
VILL. MASANERALGA
P.S. BILASIPARA
DIST- DHUBRI
ASSAM
3:RUPBHAN BIBI
W/O MOHAR SK.
VILL. DOODHNATH
P.S. CHAPAR
DIST- DHUBRI
ASSAM
4:AUSHI BIBI
W/O SUKUR ALI
Page No.# 2/5
VILL. BENGTAL
P.S. DHALIGAON
DIST- CHIRANJ
BTAD
5:AHELA BIBI
W/O LOKMAN ALI
VILL. CHATIPUR
P.S. DHALIGAON
DIST- CHIRANJ
BTA
Advocate for the Petitioner : MR.A CHETIA
Advocate for the Respondent : MS.S HAZARIKA R-1
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
25.10.2019 Heard Mr. P Deka, learned counsel for the petitioners and Mr. AK Hussain, learned counsel for the respondent.
The present petitioners are the main defendants in Title Suit No. 102/2010 pending in the court of learned Munsiff at Bilasipara which was filed by the present respondents as the plaintiffs. The suit was for declaration, recovery of possession by evicting the defendants/ petitioners and for declaration of the sale deeds as null and void. The petitioners contested and filed the written statement stating that the plaintiffs/ respondents had no right, title, interest and possession over the D & E Schedule land and they purchased the land described in D & C schedule of the plaint. Both the parties adduced their evidence. An application was filed by the defendants/ petitioners for sending the signatures of the executants of the sale deeds marked as Exhibits A & C for examination by Forensic Experts which was allowed vide order dated 11.03.2014. Thereafter, a report was received from the Forensic Expert that for effective examination of the specimen signature some more signatures were required. But in spite of getting several opportunities, the defendants/ petitioners failed to take proper steps as per order of the court below and causing unnecessary delay in the suit for which the learned court below closed evidence of expert witness and fixed the suit for argument.
Page No.# 3/5 Being aggrieved the petitioners filed an application being No. 211 on 05.05.2015 seeking adjournment of the hearing of the argument and pass necessary orders to recall the PWs 2 & 3 for re-examination on the point of execution of the concerned sale deeds and for taking the specimen signatures afresh for proper investigation and examination through experts along with a direction to call for the original sale deed dated 22.12.2000 from the office of the Sub-Registrar, Bilasipara. The said petition was objected by the plaintiffs/ respondents thereby stating that the defendants' side earlier was provided opportunity to examine hand-writing expert and to take necessary steps to obtain the expert opinion. The forensic expert vide letter dated 09.07.2014 returned back all the documents informing the court of learned Munsiff to send the same with some more specimen signatures to the Finger Print Bureau, CID, Assam Police, Guwahati. Subsequent thereto no steps were there on the part of the defendants/ petitioners and as such the intent of the petitioners was to delay the disposal of the suit and sought for dismissal of the said application.
Vide order dated 01.08.2015, the learned court of Munsiff, Bilasipara dismissed the said petition no. 211 and fixed the matter for argument. Being aggrieved by the said impugned order dated 01.08.2015, the petitioners filed this revision petition.
I have heard the submissions of the learned counsel appearing for the parties. The parties to the suit had already adduced their respective evidence and thereafter the court below was satisfied to get the expert opinion inasmuch as the plaintiffs/ respondents sought for declaration of the sale deeds as null and void. The petitioners as the defendants took steps and on the basis of the said steps the learned Munsiff vide letter No. 596/C dated 04.07.2014 requested for comparison of the disputed signature and thumb impression of Md. Hasem Ali in T.S. No. 102/2010. In response to the said request the Deputy Director of the Central Forensic Science Laboratory vide letter dated 09.07.2014 sent back all the documents received from the court along with the Demand Draft of Rs. 5,000/- which was sent as the examination fee were returned with a further advice that for examination of thumb impression it would be proper to send the same to Fingerprint Bureau, CID, Assam Police. In addition to that some more specimen signatures of Md. Hasem Ali was requested to be furnished but due to non-taking of steps by the petitioners the impugned order was passed. The learned court below while dismissing the said petition no. 211 held as follows:-
"At this stage when the case is pending for argument for last 8 months and there is complete Page No.# 4/5 negligence and failure on the part of the defendant side, I do not find it an appropriate case to apply the case law as cited by the learned counsel of the defendant. That apart no sufficient cause has been shown for omission to put the questions which appears to be relevant at this stage to the party concerned. The defendant side also failed to show any reasonable cause which prevented them from raising such questions at earlier stage. Hence, considering the all pros and cons of the entire matter I find no cogent reason to allow the petition No-211 and hence the same is rejected.
It is hereby strictly directed to both the sides to advance their argument on next date positively without fail; otherwise the same will be presumed as heard. Fixing 26-08-2015 for argument."
The learned court below applied its discretion and ordered the expert opinion on the fingerprints and thumb impressions on the sale deeds relied by the defendants/ petitioners and that was with an intent to decide the dispute between the parties. It is the discretion of the court below which felt it necessary for deciding real dispute between the parties. No doubt there is delay on the part of the defendants/ petitioners in collecting the specimen signatures of Md. Hasem Ali. But the learned court below failed to consider that it is the stand taken by the plaintiffs/ respondents in their plaint that their predecessor Asaruddin Talukdar never sold the E Schedule land to Hasem Ali (pro-forma defendant no. 1) and the said Hasem Ali also did not purchase the said E Schedule land from Asaruddin Talukdar by any sale deed. In the proper sense the burden lies with the plaintiffs/ respondents in order to prove the said contention made in the plaint. Though the application for sending the signatures/ thumb impressions to the hand-writing expert was filed by the defendants/ petitioners the court applied its discretion and finding that the said piece of evidence of expert opinion is vital, accordingly allowed the said application. Collection of specimen signatures from the pro-forma defendant no. 1, the plaintiffs/ respondents are also equally liable to that effect. Under such circumstances, in my considered opinion as the court below thought it fit to bring the said evidence of the expert and now if the suit is decided without the said evidence it would affect the parties to the suit. Considering the same I deem it fit to interfere which I accordingly do by setting aside the impugned order dated 01.08.2015 and sending back to decide the said petition no. 211 dated 05.05.2015 afresh however, after hearing the parties afresh. As there is delay which is apparent on the part of the defendants/ petitioners, in my considered opinion, it would be proper to impose a cost of Rs. 5,000/- (Rupees five thousand) upon the petitioners which is to be deposited before the court below and the same is Page No.# 5/5 with an intent to compensate for the delay caused in disposal of the suit to the plaintiffs/ respondents. With the said observation and direction this revision petition stands disposed of.
No costs.
JUDGE Comparing Assistant