Saroj Kumar Singh vs Most. Malti Kuer
2023 Latest Caselaw 3276 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
            CIVIL MISCELLANEOUS JURISDICTION No.536 of 2019
     ======================================================

Saroj Kumar Singh, aged about 47 years, Male Son of Dheerya Singh @ Dheeraj Kumar Singh, Residents of Village- Utari, P.O. Akorhi, P.S. Mohania, District- Kaimur.

... ... Petitioner/s Versus

1. Most. Malti Kuer, aged about 70 years, Female, Wife of Late Nathuni Singh, Resident of Village- Utari, Police Station- Mohania, District- Kaimur.

2. Akhilesh Kumar Singh, aged about 42 years, Male Son of Late Sant Kumar Singh, P.S. Mohaniya, District- Kaimur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Arvind Nath Pandey, Advocate Mr. Satyendra Pandey, Advocate For the Respondent/s : Mr. Viveka Nand Singh, Advocate Mr. Dhananjay Kumar Upadhyay, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 26-07-2023

Heard learned counsel for the parties.

2. This Civil Miscellaneous Application has been filed

under Article 227 of the Constitution of India against the order

dated 20.11.2018 passed by the learned Sub-Judge 1 st, Kaimur at

Bhabua in Title Suit No. 554 of 2013 whereby and whereunder

the petition dated 19.08.2016 filed on behalf of the

plaintiff/petitioner for verification and examination of thumb

impression of defendant no. 1 and petition dated 05.07.2018 filed

on behalf of the plaintiff/petitioner for marking as exhibit of the

report of non Survey Knowing Pleader Commissioner have been

rejected.

Patna High Court C.Misc. No.536 of 2019 dt.26-07-2023

3. Brief facts of the case are that the plaintiff/petitioner

filed a title suit being Title Suit No. 554 of 2013 for declaration of

title and possession over the suit property and also for declaration

that registered Beyanama Deed No. 11294 of 2011 dated

29.11.2011 is null and void and also for restraining the defendants

to interfere in the peaceful possession of the plaintiff. The

defendants/respondents filed their written statement. The case of

the plaintiff is that father of the petitioner purchased the suit

property from defendant no. 1/respondent no. 1 on 11.04.1986 vide

unregistered deed (Yadast Kewala) and also paid the consideration

money and the petitioner and his family members are in peaceful

possession of the suit property since 11.04.1986. On 11.09.2013,

respondent no. 2 told the petitioner that the suit property has been

purchased by him from respondent no. 1 so the delivery of

possession should be given to him. Accordingly, the dispute arose

between the petitioner and the respondents.

4. The petitioner filed the petition dated 19.08.2016 in

the suit with a prayer to direct respondent no. 1 to give her writing

and thumb impression so that the same can be compared by the

expert with disputed and admitted document. It is claimed by the

petitioner that defendant no. 1, had executed the unregistered sale

deed in favour of the petitioner's father marked as Exhibit-1 on Patna High Court C.Misc. No.536 of 2019 dt.26-07-2023

behalf of plaintiffs and she also admittedly executed the registered

sale deed with regard to the suit property in favour of respondent

no. 2. Accordingly, it is necessary that expert opinion be taken

with respect to writing and the thumb impression of the defendant

no. 1 on disputed Yadast Kewala. The petition dated 05.07.2018

also filed on behalf of the petitioner to mark exhibit non Survey

Knowing Advocate Commissioner report. Both the petitions have

been dismissed by the learned Court below vide the impugned

order.

5. Learned counsel for the petitioner submits that the

learned Court below without considering the entire facts and law

passed the impugned order which is illegal and liable to be set

aside. He has further submitted that the report of non Survey

Knowing Advocate Commissioner on appointment and taking the

report of thumb impression of respondent no. 1 by an expert were

necessary for proper adjudication of the suit and liable to be

allowed and the same shall cause no prejudice to the respondents.

6. Per Contra, learned counsel for the respondents

submits that report of non-survey knowing Pleader Commissioner

is not part of record and without adducing evidence of said

commissioner it would not be proper to mark it as an exhibit.

Further it has been submitted that Yadast Kewala dated 11.04.1986 Patna High Court C.Misc. No.536 of 2019 dt.26-07-2023

is a fake document and sale deed based on memory has no

meaning and existence in the eyes of law and there is no

requirement of examination by the expert. Therefore, the learned

Court below has rightly rejected the said petitions of the petitioner

which requires no interference by this Court.

7. Having heard the learned counsel for the parties and

perused the material on record, it appears from the impugned order

that the learned Court below had observed that plaintiff has option

to mark the exhibit through examination of non Survey Knowing

Pleader Commissioner and further observed that Yadast Kewala

has no meaning and existence in the eyes of law. Therefore there

is no need to entertain the petition for examining the writing and

thumb impression of respondent no. 1 Most. Malti Kuer by expert.

8. In the present case the Yadast Kewala is an

unregistered document and the law is well settled that unregistered

agreement to sale is not admissible in the evidence. It is true that

in a given case, an unregistered document can be used and/or

considered for collateral purpose. In the facts and circumstances

verification and examination of writing and thumb impression of

respondent no. 1 on such document is liable to be rejected.

9. In view of the aforesaid facts and circumstances and

submission of learned counsel for the parties and considering the Patna High Court C.Misc. No.536 of 2019 dt.26-07-2023

limited scope of jurisdiction vested in this Court by Article 227 of

the Constitution of India, this Court does not find any

jurisdictional error or illegality in the impugned order passed by

the learned Court below.

10. Accordingly, this Civil Miscellaneous Application is

dismissed with no order as to costs.

11. Needless to say that the learned trial Court shall

decide the suit on its own merit in accordance with law without

prejudice to the observation made in deciding these petitions.

(Sunil Dutta Mishra, J)

Anand Kr.

AFR/NAFR                     NAFR
CAV DATE                   11.05.2023
Uploading Date             26.07.2023
Transmission Date