Vijay Pal Singh vs Malkhan Singh And Others
2021 Latest Caselaw 1485 UK

              HIGH COURT OF UTTARAKHAND
                      AT NAINITAL
                     Writ Petition No.435 of 2018 (M/S)

Vijay Pal Singh                                                     .....Petitioner
                                           Vs.

Malkhan Singh and others                                           ...Respondents

Advocate : Mr. Sarvesh Agarwal, Advocate for the petitioner.
           Mr. Jitendra Chaudhary, Advocate for the respondents.


Hon'ble Sharad Kumar Sharma, J.

The petitioner before this Court is a plaintiff in Suit No.178 of 2011, Vijay Pal Singh vs. Malkhan Singh. The controversy, which has emerged consideration in the present writ petition is arising out of the judgment dated 13.12.2017, which was passed by Civil Judge (Jr. Div.), Kashipur, District Udham Singh Nagar in Civil Suit No.178 of 2011, Vijay Pal Singh vs. Malkhan Singh, whereby the petitioner's application Paper No.97 Ga for the hand writing expert, opinion/report, in relation to the Panch Map dated 20.05.1956 i.e. Paper No.94 Ga; has been rejected, on the premise that in the cross examination, which was recorded by the plaintiff, before the court below, the factum of its execution has been admitted by the plaintiff.

2. When this writ petition was preferred, the Coordinate Bench of this Court, by an order 21.02.2018, had stayed the proceedings of the Suit No.178 of 2011. Notices were issued to the respondents, and the respondents had put in appearance through Mr. Jitendra Chaudhary, Advocate, by filing his vakalatnama on 18.03.2018, but no counter affidavit has been filed till date; denying the averments made in the writ petition. In that eventuality, once, the pleadings raised in the writ petition, had not been denied despite opportunity, by filing a counter affidavit, the principles laid down by the Hon'ble Apex Court in a judgment reported in AIR 1993 (2) Supreme Court 2592, Naseem Bano vs. State of U.P. and

Ors. as well as that reported in AIR 1986 Supreme Court 872, Express Newspapers Pvt. Ltd. and Ors. vs. Union of India (UOI) and Ors, will come into play and the uncontroverted pleadings are to be considered by the court as to be true on the face of it as it is, but still considering the circumstances of the present case, the respondents though, have not denied the pleadings raised in the writ petition, but still this Court has heard the parties to the writ petition and while scrutinising the rationale adopted by the learned Additional District Judge, Kashipur, Udham Singh Nagar, while passing the judgment of 08.02.2018 in Civil Revision No.03 of 2018, Vijay Pal Singh vs. Malkhan Singh and others, this Court is of the view that the logic assigned by the learned trial court too while deciding the Paper No.92 Ga and the objections filed to it i.e. Paper No.97 Ga, the denial has been made by the learned trial court, while denying the examination of the Panch Map dated 20.05.1956, Paper No.84 Ga, on the premise that the plaintiff in his cross examination, had admitted its execution of the Panch Map dated 20.05.1956, and as such, no examination as such by the expert is required to be conducted, for a document, the execution of which has been admitted by the plaintiff in his statement recorded in cross examination.

3. In answer to it, the learned counsel for the petitioner had drawn the attention of this court to the statement, which he has recorded before the court below and particularly he has submitted that if the statement of the petitioner which was submitted by way of an affidavit before the learned trial court on 27.01.2017 it that itself is taken into consideration, the excerpt of which is quoted hereunder:-

^^tc izfroknhx.k }kjk tokcnkos esa fd;s x;s dFku fd oknh rFkk izfroknhx.k ds ewfjl ds e/; dksbZ iap QSlyk fnukad 20-05-1956 dks gqvk gks] drbZ xyr gSA ,slk dksbZ iap QSlyk uk rks gqvk vkSj uk gh mldk iz'u gh FkkA okLrfodrk ;g gS fd oknh ds firk Lo0 cRrww flag o izfroknh la[;k 1 ds firk 'ksj flag ds e/; jkLrs dks ysdj fookn gqvk Fkk ftlesa fnukad 11-05-1956 dks vkilh le>kSrs ls QSlyk gqvk Fkk ftlesa Lo0 'ksj flag o Lo0 cRrw flag us iz'uxr jkLrs dks eq'rdkZ rkSj ls bLrseky djus dk le>kSrk fd;k Fkk oknh rFkk izfroknhx.k ds ewfjlksa ds e/; gqvk le>kSrk fnukad 11-05-1956 oknh rFkk izfroknhx.k ij Hkh ykxw gksrk gSA bl dkj.k izfroknhx.k dks dksbZ Hkh vf/kdkj iz'uxr jkLrs dks cUn djus dk ugha gSA^^

4. He submits that in fact, in the affidavit thus filed by him, he has specifically controverted the very execution of documents i.e. the Panch Faisla of 20.05.1956 and on the other hand he has also specifically pleaded that in relation to the pathway in dispute, there was a distinct reason and that it was settled by way of an another independent agreement dated 11.05.1956. Hence, as a matter of fact, the said averment made in the statement in the affidavit of 27.01.2017, the factum of execution of the Punch Map of 20.05.1956, was specifically denied and rather on the contrary the another case which was taken up by the plaintiff/petitioner, was that there was another settlement of 11.05.1956. What he contends that the part from the statements recorded in cross examination, which has been extracted by the courts below to deny him the expert examination of the said Panch Map, through an expert which he has prayed for by way of Paper No.97 Ga, has been wrongly denied by extracting the statement recorded in the cross examination recorded by him, wherein it has been interpreted, as if the execution of the said Panch Map was a fact, which was recorded by the plaintiff in his cross examination. Thus the said part of the cross examination as admitted is extracted hereunder:-

^^fd 20-05-56 dks esjs firk o 'ksjflag ds e/; fookfnr LFky ds ckor iap QSlyk o fy[kr i<r gqbZ esjh tkudkjh esjh tkudkjh esa gS tks lgh gSA eqUuw flag ftUnk gS txu flag iq= mejko flag xqtj x;sA lqjtk flag dks eSa ugha tkurk gwaA^^

5. What is interesting to observe herein is that if the evidence which was led by way of an affidavit by the plaintiff filed before the court below, is taken together as a whole and read with the cross examination, which has been extracted to be taken into consideration, the learned courts below have escaped to take into consideration the fact that there was no question placed to the petitioner in the cross examination to the plaintiff, with regards to the settlement of 11.05.1956, which also constituted to be the part of his affidavit which was filed and on which he placed reliance

and the finding, which has been recorded by the courts below exclusively are based on the cross examination; cannot be read in isolation with the affidavit where execution of the Panch Faisla of 20.05.1956, was denied by the plaintiff. Hence, in fact, if the reasoning, which has been recorded by the courts below does they do not support the rightful interpretation of the affidavit which was filed by the plaintiff and the reasoning given, while rejecting the application, hence, I am of the view that since the revisional court too had concurred with the judgment of learned trial court based on the same rationale, they are not sustainable. Accordingly, the judgments impugned are quashed. The writ petition is allowed. Accordingly, Paper No.97 Ga, which has been preferred by the plaintiff for the purposes of examination of Paper No.84 Ga i.e. the Panch Faisla of 20.05.1956, by way of an expert opinion, is allowed. By way of an utter precaution, the learned trial court is directed to get the signatures verified through an expert from any other specimen signatures of the parties, other than those as given in the documents of 20.05.1956 and 11.05.1956.

6. The learned trial court is directed to do the needful at the earliest for getting the said document verified through an expert, within a period of two months from the date of production of certified copy of this judgment.

7. Subject to the above, the writ petition stands allowed. The impugned orders are quashed.

(Sharad Kumar Sharma, J.) 12.04.2021 Arti