Orissa High Court
Basi Bewa & Ors vs Raimani Majhiani on 4 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A.No.251 of 1991
(From the judgment and decree dated 12th July, 1991 passed by the
learned District Judge, Baripada in T.A. No. 27 of 1987 reversing the
judgment and decree dated 23rd December, 1986 passed by the learned
Sub-Judge, Rairangpur in T.S. No. 8 of 1982)
Basi Bewa & Ors. ...... Appellants
Versus
Raimani Majhiani ....... Respondent
Advocate(s) appeared in this case:-
For Appellants : Mr.D.P.Mohanty, Advocate
For Respondent : Mr.S.D.Das, Senior Advocate
CORAM : JUSTICE B.P. ROUTRAY
JUDGMENT
4th May, 2023
B.P.Routray, J.
1. Heard Mr. Mohanty, learned counsel for the Appellants and Mr.
Das, learned Senior Counsel for the Respondent.
2. The Appellants are the defendants. The original plaintiffs were two
wives of Langa Majhi. Present Respondent being the daughter of Langa
Majhi was substituted upon death of both the plaintiffs. Suit Scheduled-
'B' lands were originally belonging to Langa Majhi. Plaintiff's case is
that, the father of original defendant and after him the defendants are in
forcible possession of suit Schedule-B lands and they accordingly prayed
for declaration of their right, title, interest and possession over the suit
Scheduled-'B' lands along with mesne profit.
3. The case of the defendants is that the suit land was purchased by
Madhu Majhi, the father of original defendant on 8th February 1947 on
payment of consideration amount of Rs.3,500/-. The concerned 'Chukti-
Patra' (conditional sale deed) has been produced under Ext.A.
4. Learned Trial Court dismissed the suit against the plaintiff
confirming the sale under Ext.A in favour of the father of original
defendant by Langa Majhi. Plaintiff carried the same in appeal before the
District Judge, Baripada in Title Appeal No.27 of 1987. The First
Appellant Court by judgment and decree dated 12th July 1991 allowed the
appeal and decreed the suit in favour of the plaintiff by holding that Ext.A
is a forged document. It is held by the District Judge that on comparison of
signature on Ext.A with Ext.3 in exercise of power under Section 73 of the
Indian Evidence Act, the signature of the scribe Harihar Majhi on Ext.A is
not found genuine.
5. On the backdrop of such factual aspects, the substantial question
falls for determination is as follows:-
Whether comparison of signature between two documents
under Section 73 of the Indian Evidence Act would be
complete and satisfactory without admission of parties in
respect of specimen document? In other words, unless the
signature on specimen document is admitted, can any such
comparison made under Section 73 of the Indian Evidence Act
be held as valid ?
6. The crux of dispute lies in Ext.A, the conditional sale deed. Ext.3
is a purported document of one proceeding of villagers unrelated to the
present case, where the scribe of Ext.A namely, Harihar Majhi had put
his signature. Here it needs to be mentioned that Langa Majhi is
complete illiterate, who put his LTI in Ext.A which was scribed by
Harihar Majhi. P.W.3 is the son of Harihar Majhi who was examined on
behalf of the plaintiff and Ext.3 was the document produced by P.W.3
to prove the signature of Harihar Majhi.
7. Admittedly, the signature of Harihar Majhi under Ext.3 is not
admitted by the defendant. At the time of marking Ext.3 this was
objected by the defendants and Ext.3 was marked by the Trial Court
with note of objection by the defendant.
8. Section 73 of the Indian Evidence Act empowers the court to
compare writings with specimen or admitted documents. The phrase
'admitted or proved to the satisfaction of the court' used in section 73
contemplates that the specimen document taken for comparison of
writing or signature in the purported document must be undisputed one
and all parties to the dispute must admit the specimen signature or
writing in the base document. In case one party refuses to admit, or
disputes the specimen document, it is incumbent on the court to first
satisfy that the signature or writing on the specimen document is proved
to be of the concerned person and only then proceed for comparison
with the purported document. Nonetheless, prudence demands that the
judge should be slow in venturing an opinion based on comparison of
signatures made by him.
9. In the instant case, learned First Appellate Court before
comparing the signature on Ext.A with Ext.3 has forgotten to take note
of this basic requirement under Section 73. The learned judge proceeded
to compare the signature on Ext.A with Ext.3 violating this basic rule
despite the signature under Ext.3 is disputed and objected by the
defendant. Therefore, the entire finding of First Appellate Court, which
is based on the opinion of learned District Judge on comparison of
signature of Harihar Majhi, to hold Ext.A as forged one, only for the
reason that according to him the signature of Harihar Majhi on Ext.A is
different from the signature on Ext.3, is liable to be set aside. The
impugned judgment of First Appellate Court is accordingly set aside. It
is needless to observe here that, Ext.3 does not satisfy the basic criteria
to be compared as specimen document.
10. In the result, the appeal is allowed and the impugned judgment
and decree of First Appellate Court is set aside. The original judgment
and decree of the Trial Court dated 23rd December, 1986 passed by
learned Sub-Judge, Rairangpur in T.S. No.8 of 1982 is restored.
( B.P. Routray)
Judge
S.Das
SANGRAM DAS Digitally signed by SANGRAM DAS
Date: 2023.05.08 10:27:33 +05'30'
