Delhi District Court
Sh. Phool Singh & Ors. vs Union Of India on 24 December, 2007
1
IN THE COURT OF SHRI YASHWANT KUMAR,
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC No. M165/06
Sh. Phool Singh & Ors. Versus Union of India
O R D E R
1 By this order, I shall dispose of an application filed by the applicant nos.3 (i), 3 (iii) & 3 (iv) U/Sec. 45 of the Indian Evidence Act r/w/sec. 151 CPC to appoint the Hand writing expert. 2 It is stated that this reference is at this stage of recording of evidence of the petitioners/ applicants. The respondent nos. 2 & 3 are the nearest relative of the applicants nos. 3(i), 3(iii) & 3(iv). They approached the applicants and asked for putting their signature and thumb impression to be effected on the stamp papers and assured the applicants that they will seek release of the compensation amount from the concerned authorities in their favour. It is further stated that the respondent nos. 2 & 3 took the advantage of their relationship and illiteracy of the applicants and after taking their signature, the respondent nos. 2 & 3 have fraudulently drawn an assignment deed dt. 10.08.1993 and the respondent nos. 2 & 3 even forged the thumb impression of other applicant no. 3(iv) on the alleged assignment deed while as the applicant no. 3(iv) has not put any signatures or thumb impression on the assignment deed. It is 2 also stated that the applicants have never appeared before the Sub Registrar, Seelampur, Delhi for registration of the alleged assignment deed nor have signed or put the thumb impression on the copies of the deed before the SubRegistrar. The respondent nos. 2 & 3 have forged the document of assignment deed dt. 10.08.1993 in order to get the full amount of compensation of the land acquired and in order to deprive the applicants from their share of the awarded amount.
3 It is further stated that on 12.8.1993, the respondent nos. 2 & 3 have forged the assignment deed and fraudulently got the same registered by the SubRegistrar, Seelampur by fabricating and producing some other persons instead of the said applicants. The respondent no. 2 with the connivance of respondent no. 3 have fraudulently sought the compensation of the entire acquired land and even grabbed the share of the applicants as well. It is also mentioned that the alleged forged assignment deed has never been executed by the applicants nor they know anything about the registration of the same. The certified copy of assignment deed dt. 10.08.1993 and specimen signatures & thumb impression of the applicants have also been alleged to have been enclosed with this application.
34 The non applicants, in their reply filing on record, have stated that the application is absolutely misconceived and not maintainable as the applicants have been given due opportunity to lead evidence and they have already completed their evidence and closed the evidence long back voluntarily. In these circumstances, the present application in the shape of additional evidence is not maintainable and liable to be rejected. The non applicants have further stated in their reply that the application is also not maintainable as one of the applicants Sh. Liley Singh/AW2 appeared as AW2 and admitted in his examination in chief that assignment deed Ex.AW1/DA contains his photographs and signatures and same was obtained by Rati Ram & Om Prakash after calling at their house saying that they should sign these documents for compensation, hence he has admitted his signatures on the assignment seed. Similarly, Kanwar Singh also appeared as AW1 who admitted his signatures on the assignment deed but stated that these signatures were obtained on blank papers. In his cross examination, AW1 also admitted that his thumb impression was obtained by Rati Ram at his own house and Om Prakash & Other and writer were there and he also admitted that Liley and Phire were also present but they did not put signature or thumb impression in his presence as after putting his thumb impression, he left the place. AW1 has admitted that assignment deed Ex.AW1/DA has his photograph and bears his thumb impression on all the five pages. Similarly, AW2 Sh. Liley Singh 4 besides what he admitted in examination in chief also admitted in cross examination that he was called to sign the document and falsely stated that none were present besides him and Om Prakash & Rati Ram whereas his own coapplicant Sh. Kanwar has stated that Leiley and Phire were present and he, in cross examination, also admitted "I alone signed the document at that time. Others have already done it. Phoola & Santa signatures were already there." Similarly, Sudesh has admitted that her photographs appeared on Ex. PW1/DA and stated that she does not remember if she has seen the assignment deed earlier. Similarly, AW4 Phire admitted in his cross examination his photographs as well as signatures & thumb impression on assignment deed Ex.PW1/DA. It is also stated in the reply that when all the witnesses have admitted their signatures on the assignment deed, where is the question of a expert opinion. 5 It is further stated in the reply that the application is also not maintainable since under the amended provisions of CPC, one cannot be allowed to lead additional evidence. Even under the old CPC, the additional evidence was allowed to a party only when by exercising due deligence, a party was unable to produce the necessary evidence or some new facts have come to his notice. But, in the present reference, from the very beginning, both the parties were fully aware of their case and as such the evidence which they have not produced when they were called upon, cannot be allowed to 5 lead by way of additional evidence, therefore, the sole purpose of the applicants is to delay the proceedings of this reference. Further, the office of the SubRegistrar is an office of the Govt. and maintains the record in ordinary post of their duties. The official of the Sub Registrar also appeared and deposed that the alleged document was duly registered in their records. All other averments made in the application have also been denied by the nonapplicants. 6 I have heard the counsel for the parties and have perused the materials on record.
7 A perusal of the record reveals that the application in question was filed on 08.01.2004. The reference u/sec. 18 of the LA Act forwarded by the concerned Land Acquisition Collector to the reference court on 18.01.1988. After receiving of the reference u/sec. 18 of the LA Act, notices were issued to the parties. Parties contested and led their evidence in support of their claims. The Ld. Predecessor Court, vide the judgment dt. 27.01.1994, answered/ decided the claims of the parties. Later on, the application was filed stating the fact that Rati Ram and Om Prakash got thumb impression/signatures of the applicant on some papers by misrepresentation and playing fraud upon him. Therefore, it was alleged by the applicant that Rati Ram was not the owner nor was ever in possession of the land of the applicant and Rati Ram & Sh.Om Prakash are in collusion with each 6 other to receive the compensation of the applicant's land. Vide order dt. 04.05.1999, the Ld. Predecessor Court framed the following issue:
1 Whether the assignment deed dt. 12.08.1993 was obtained by misrepresentation and playing fraud upon the applicant? If so, its effect. OPA Thereafter, the matter was fixed for evidence of the parties on 24.09.1999. Sh.Kanwar S/o Suraj Mal was examined as AW1 on 09.10.2001. Sh.Liley Singh S/o Sh.Radhey, one of the applicants was examined as AW2 on 18.12.2001. Smt.Sudesh Wd/o Sh.Mahesh, one of the applicants was also examined as AW3 on 17.12.2002. Sh.Phirey S/o Radhey, one of the applicants was examined as AW4 on 17.12.2002. Ms.Prem Lata, Head Clerk, SubRegistrar, Seelampur, Delhi was examined as AW5 on 22.07.2003. Sh.Bhim Sen Mittal, advocate, Ch.No.51, Seelampur, SDM Court Compound, Shahdara, Delhi was examined as DHW1 on 04.09.2003 and Sh.Om Prakash S/o Sh.Khimman also filed his evidence by way of affidavit on 04.09.2003.
On 04.09.2003, the Ld. Predecessor court also gave an opportunity to one more witness, Sh.Hari Ram, LDC, Record Room who was summoned to prove the certified copies of the plaint and the statement of the parties and order in suit no.160/96 since the certified copies of the same were also placed on record and further fixed for remaining evidence of the DH for 27.11.2003. However, on 27.11.2003, the counsel for the applicant made a submission that one application u/o 31 Rule 1 & 2 r/w/sec. 151 CPC was still pending for 7 disposal, therefore, the matter was fixed for filing of reply and arguments on the said application as well as evidence for 02.02.2004. During the proceedings of this reference, some of the parties expired. Meanwhile, the present application which is in question was filed by the applicant for appointment of the Hand Writing Expert. 8 In the evidence of Sh.Liley Singh recorded as AW2 on 18.12.2001, it is specifically deposed that the assignment deed Ex.AW1/DA contains his photograph and signature but the same were obtained by Sh.Rati Ram and Sh.Om Prakash after calling them at their house at night saying that they should sign the said documents and that they would get the compensation. Smt.Sudesh/ AW3 has also specifically deposed in her cross examination on 17.12.2002 that she signed the assignment deed Ex.AW1/DA at residence. Sh.Phirey/ AW4 also deposed in his cross examination that he signed the assignment deed Ex.AW1/DA at the house of Rati Ram. Perusal of the assignment deed Ex.AW1/DA reveals the photographs and their thumb impression. Smt.Prem Lata, Head Clerk, SubRegistrar office, Seelampur, Delhi who brought the summoned record in original and proved the assignment deed dt. 10.08.1993 as Ex.AW5/A. AW5 deposed on 22.07.2003 that except the original assignment deed and the copy thereof in their volume (Register), the signatures of the parties are not obtained on any other document. AW5 further deposed that they see the ICard/ Ration 8 card of the person who appears before them. After examining the last witness i.e. AW5, the counsel for the applicants closed the evidence of the applicants.
9 Sh.Bhim Sen Mittal, advocate was also examined as DHW1 on behalf of non applicants who deposed that the assignment deed Ex.AW1/DA was drafted by him and signed by the executants in his presence which was presented for registration through him. DHW1, during his cross examination, has deposed that he had charged Rs.550/ for getting the documents registered. The persons were produced before the SubRegistrar on 12.08.1993 at about 02.00 p.m. DHW1 produced the first party which was Phool Singh and the second party was Santa Ram. Both of them were first party. DHW1 further deposed that about 10 persons had appeared at the time of registration before the SubRegistrar and he knows the names of Phool Singh, Santa Ram, Kanwar Singh, Billey (Liley), Phirey, Smt.Sudesh, Smt.Vidya, Tek Chand and Om Prakash out of the 10 persons. DHW1 told the names of first party and the second party including the witnesses. DHW1 has denied the suggestion that Sudesh, Billey (Liley) and Phirey were never produced by him before the SubRegistrar. DHW1 has also deposed that he checked the ration cards of all the concerned persons and after verification of the same, the registration was done. DHW1, during his arguments, also deposed that the photographs were provided to him at 11.00 a.m. and 9 the registration was done at 02.00 p.m. The SubRegistrar had asked for ration cards and the same was shown to him. DHW1 got the persons identified by way of ration cards. DHW1 also denied the suggestion that Phirely and Liley had not signed before the Sub Registrar at the time of registration. DHW1 further denied the suggestion that Smt.Sudesh had never signed any document and not appeared in any court of law.
10 Now, let us examine as to the presumption of correctness of the entries made in the Govt. records. In this context, a reliance can be had upon the judgment reported in Sheojee Tiwary & Anr. Vs Prema Kuer & Ors. AIR 1964 Patna 187 (V 51 C 52), it was held that u/sec. 35, an entry in any public or other official register stating a fact in issue or relevant fact and made by public servant in the discharge of his duties becomes a relevant fact and is provable in the prescribed manner. Entries in Khasra register maintained under an Act are entries in a public and official register and made by a public servant in the discharge of his official duties and the columns provided in the register are to be filled up in the discharge of official duties of the public servant concerned. Till those entries are proved to be false, they will be good evidence of what is stated thereunder. The present reference is at the stage of evidence of the parties after passing of the judgment and thereafter framing of the issue on the correctness of the assignment deed dt. 12.08.1993. The alleged assignment deed 10 Ex.AW1/DA was no doubt duly registered before the SubRegistrar office. It is also the admitted fact that Liley, Sudesh and Phirey signed the document Ex.AW1/DA. No evidence has been led so far by the applicants for taking any step either filing of any criminal complaint against the nonapplicants after the execution of the assignment deed dt. 12.08.1993. Even, the present application was filed by the applicants on 08.01.2004 in the execution proceedings after the judgment dt. 27.01.1994 was passed by the Ld. Predecessor Court. The question involved at this stage is not about comparison of the signature and thumb impression but the question is whether signatures and thumb impression on the alleged assignment deed were obtained by misrepresentation and playing fraud upon the applicants. Moreover, the applicants had an ample opportunity for filing such an application during their evidence but they have not preferred to file such application and concluded their evidence on 22.07.2003, the reasons are best known to them. The non applicants have already examined one witness DHW1 and filed the evidence by way of affidavit of Sh.Om Prakash, the nonapplicant and the matter is at this stage of leading and concluding the evidence by the non applicants. If the present application is allowed, it will lead to re open the evidence of the applicants allowing the applicants to fill up their lacunas which will affect the rights accrued by the non applicants and the evidence of the applicants and the nonapplicants will be continuing again and so on. The present case is at the stage of 11 execution proceedings after passing of the judgment and the scope of the execution is very limited. However, the applicants have been given the opportunities to lead their evidence which they have already concluded on the aspect of misrepresentation and playing fraud at the time of execution of alleged assignment deed. In view of the above facts, circumstances, evidence already concluded by the applicants and also the aforesaid judgment referred to, the present application is not maintainable and the same is dismissed. No order to costs.
Now, to come up for evidence of the applicants on 17.01.2008.
Announced in open court ( YASHWANT KUMAR )
on 24.12.2007 ADDL. DISTRICT JUDGE (LAC)
DELHI
12
LAC No. M165/06
24.12.2007
Present None for the parties
Vide separate order dictated and announced in the open court, application filed by the applicant nos.3 (i), 3 (iii) & 3 (iv) U/Sec. 45 of the Indian Evidence Act r/w/sec. 151 CPC to appoint the Hand writing expert is dismissed. No order to costs.
Now, to come up for evidence of the applicants on 17.01.2008.
( YASHWANT KUMAR ) ADJ/LAC/DELHI/24.12.2007