Anokh Singh and others vs Gurbax Singh and others

Bakhshish Kaur, J.—The petitioners'' application for getting the thumb impression of Anokh Singh and Jar-nail Singh compared on the disputed Will Ex. A/1 was dismissed by the learned Additional Civil Judge (Senior Division) on 14.12.1999.

The fads of the case, briefly stated, are that Jarnail Singh had executed a Will on 23.10.1980 in respect of the land situated in village Rokhe in favour of Gurbax Singh, plaintiff-respondent (hereinafter referred as plaintiff) and the land situated in village Chhajalwadi in favour of his nephews. Jamail Singh died on 1.2.1981 and mutation regarding inheritance was sanctioned. 13 years after the death of Jamail Singh, Gurbax Singh, plaintiff instituted a suit for joint possession of land situated in village Chhajalwadi on the basis of the Will dated 15.10.1980 executed by Jamail Singh in this favour. The suit was contestedty the defendant-petitioner (hereinafter referred as petitioner) who denied execution of the Will dated 15.10.1980.

On 11.2.1997,following issues were framed by the trial Court :

"(i) Whether the plaintiff is entitled to separate possession by way of partition of the suit property as claimed ? OPP

(ii) Whether the plaintiff is entitled to the grant of permanent injunction as prayed for ? OPP.

(iii) Whether the suit is not maintainable in the present form ? OPP

(iv) Relief."

As per order dated 18.8.1999, issues were amended and the amended issues (taken up from the revision petition) read as under :

" 1-A Whether the plaintiff is entitled to joint possession and declaration that he is owner in possession of the land measuring 123 Kanal 16-1/2 Marias being half share of the land measuring 247 Kanals 13 Marlas ? OPP

1-B Whether Jarnail Singh executed a Will in favour of Anokh Singh, Santokh Singh and Prem Singh as well as in favour of defendant on 23.10.1980. If so, its effect? OPP."

According to the petitioner, Will dated 15.10.1980 is forged document. The thumb impression of Jarnail Singh is not on the Will Ex. A/1. In fact, it is the thumb impression of Anokh Singh, who is alleged to be an attesting witness. The petitioner, therefore, moved an application for getting the thumb impression of Anokh Singh compared with that of Jarnail Singh appearing on the Will dated 23.10.1982. The prayer of the petitioner has been declined mainly on the ground that the Document Expert examined by the plaintiff was cross- examined at length by the petitioner and he cannot be allowed to take a contradictory plea that the Will Ex. A/1 does not bear the thumb impression of Jarnail Singh rather these are of Anokh Singh. I am of the view that this fact alone is not sufficient to disallow their prayer for examining the Expert. Similarly, the view expressed by the trial Court that the Court is the best judge and can itself compare the thumb impression of Jarnail Singh with the specimen thumb impression taken in the Court by the Handwriting and Finger Expert Shri R.S. Bal, examined by the plaintiff, appears to be devoid of merit. The Court may compare the admitted signatures of a person with the disputed signatures in order to see the similarity/dissidentiy between the two. The Court by no stretch of reasoning can com-pare, on its own, the disputed thumb impression with the admitted thumb impression. Similarly, the petitioner cannot be denied the right to examine the Expert simply on the ground of delay. Court is not powerless to gram relief if the ends of justice and equity demand, as has been held in (Polavarapu) Ankayya Vs. (Gaddamanugu) Subhadrayya and Others, and Anymulasetti Venkateswara Rao Vs. Konduri Sivaiah, , railed on in a decision of this Court in Mam Raj v. Smt. Sahiri Devi and others 2000(1) 124 P.L.R. 517 ; 1998(2) RRR 636 (P&H).

This revision petition is allowed. The trial Court is directed to permit the petitioners to examine the Handwriting Expert for the purpose of comparison of the disputed thumb impression of Jarnail Singh.

Revision allowed.