Himachal Pradesh High Court
Rajinder Singh vs Gajinder Singh And Others on 21 March, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 366/2015
Decided on March 21, 2016
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.
Rajinder Singh ...........Petitioner
Versus
Gajinder Singh and others ..........Respondents
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1
of
For the Petitioner : Mr. Neeraj Gupta, Advocate.
For the Respondents : Mr. Nimish Gupta, Advocate, for
respondent No. 1.
rt None for respondents No.2 to 26.
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Rajiv Sharma, Judge (oral)
This petition is instituted against Order 15.9.2014 rendered by learned Civil Judge (Senior Division), Chamba, Himachal Pradesh in Civil Suit No. 1415/2013.
2. "Key facts" necessary for the adjudication of the present petition are that the petitioner-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit against the respondents-defendants (hereinafter referred to as 'defendants' for convenience sake) for declaration to the effect that Uttmo Devi (deceased) mother of the plaintiff and defendant No. 1 namely Shri Gajinder Singh, who was owner-in-
possession of the land detailed in the plaint, bequeathed property in favour of the plaintiff vide registered Will dated 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:57:29 :::HCHP 223.8.1993. Defendant No.1 has got suit land to the extent of ½ share mutated in his favour vide mutation No. 992 dated 15.6.2005, in connivance with revenue officials, which was .
wrong, illegal, void and inoperative. Mutation No. 992 dated 15.6.2005 and subsequent entries in his favour may be declared as null and void. Suit was also filed for permanent prohibitory injunction restraining the defendants from interfering in any of manner and from taking forcible possession of the suit land.
3. Suit was contested by defendant No. 1 by filing rt written statement. Factum of Will executed by Late Uttmo Devi on 23.8.1993 was admitted but the will was cancelled by Uttmo Devi by executing another Will dated 5.10.2003 whereby she bequeathed entire property in favour of both the sons.
4. Issues were framed by the learned trial Court.
Parties concluded evidence on 25.8.2012 and case was listed for rebuttal evidence. In the meantime, plaintiff moved an application under Sections 45 and 73 of the Evidence Act, 1872, to send the thumb impression of Late Uttmo Devi on Will dated 23.8.1993, to compare with the thumb impression put on Will dated 5.10.2003. Application was dismissed by the learned Civil Judge (Senior Division), Chamba on 15.9.2014. Hence, this petition.
5. Execution of Will dated 23.8.1993 in favour of the plaintiff has been admitted by the defendants. According to the ::: Downloaded on - 15/04/2017 19:57:29 :::HCHP 3 defendants, Will dated 23.8.1993 was cancelled by way of subsequent Will dated 5.10.2003. Will dated 23.8.1993 was a registered Will. It is in these circumstances, application was .
filed for comparison of thumb impressions put by Uttmo Devi on Will dated 23.8.1993 and on Will dated 5.10.2003. Parties have concluded their evidence on 25.8.2012. Plaintiff has examined Shri Atul to prove the certified copy of Will dated 23.8.1993 vide of Ext. PW-1/J. Plaintiff has also examined Quam Khan, Sadar Kanungo, DC Office Chamba as PW-3. In order to remove rt suspicion about Will dated 5.10.2003, it was necessary for the learned trial Court to get the thumb impressions of Uttmo Devi appended on both the Wills dated 23.8.1993 and 5.10.2003 compared from an expert. Application has been filed for comparison of thumb impression during the rebuttal. It can not be said to be belated. Learned Civil Judge (Senior Division), has failed to exercise the jurisdiction vested in her while rejecting the application vide order dated 15.9.2014. Sending the documents for the comparison of thumb impression would not cause any prejudice to the parties.
6. Whenever a party disputes a signature on a particular document, two remedies are open; i) to request the Court to compare the signatures or; ii) file an application to send the document to the Expert for comparison. When the petitioner filed application to send the document to an expert, ::: Downloaded on - 15/04/2017 19:57:29 :::HCHP 4 no prejudice would have been caused to either of the parties.
Thus, it was necessary for the leaned Court below to send the document to the expert for comparison, at the request of the .
plaintiff, in the interest of justice, which would not have caused any prejudice to the defendants in the present suit.
7. According, the present petition is allowed. Order dated 15.9.2014 rendered by learned Civil Judge (Senior of Division), Chamba is set aside. Registered Will dated 23.8.1993 is ordered to be requisitioned from the office of Sub Registrar, rt Chamba and thereafter same be sent to the Government Examiner of Questioned Documents (GEQD) to compare the thumb impressions of Uttmo Devi on Wills dated 23.8.1993 and 5.10.2003. Parties are directed to appear before the learned Civil Judge (Senior Division) on 21.4.2016.
8. Pending applications, if any, are disposed of. No order as to costs.
(Rajiv Sharma) Judge March 21, 2016 (vikrant) ::: Downloaded on - 15/04/2017 19:57:29 :::HCHP