The main legal point established is that under Section 73 of the Indian Evidence Act, 1872, the comparison of signatures, writing, or seal admitted or proved to the satisfaction of the court is permissible, and mere denial without supportive evidence does not automatically establish a plea.

JUDGMENT

Subhasis Dasgupta, J. - Subject matter of challenge in this case is against an order dated 3 rd March, 2022, passed by Learned Civil Judge (Junior Division), 3rd Court, Diamond Harbour, South-24-Parganas, in Title Suit No. 75 of 2013, allowing a recalling application, dated 29th August, 2018, filed by the defendants.

2. Opposite parties/defendants had disclosed in their written statement about existence of one deed, dated 15th May,1989, allegedly executed by Birendranath Halder, which was denied by the plaintiffs alleging the said deed to be falsely personified. The reference of such deed in the written statement was put up as defence against the proposed claim of the plaintiffs.

3. Admittedly, plaintiffs prayed for appointment of government handwriting expert for examination of L.T.I. (Left Thumb Impression) found in the L.T.I. volume book of deed, dated 15th May, 1989, as relied upon the defendants, with other L.T.I. of said executor (Birendranath Halder) found in L.T.I. volume book of sale deed, dated 26th July, 1971.

4. There was a previous direction by the court below requiring defendants to produce the original deed, as disclosed in the written statement, which was grossly challenged by the petitioners/plaintiffs since beginning.

5. As the defendants failed to produce the original deed, stating that the original deed was not in the possession of the defendants being lost, the court below proceeded to determine the issue upon appointment of government handwriting expert for comparison of signature of Birendranath Halder, found in two documents, mentioned hereinabove.

6. It would be worth to mention here that after the defendants failed to cause production of original deed dated 15th May, 1989, the plaintiffs/petitioners produced another certified copy of sale deed, dated 26th July, 1971, allegedly bearing L.T.I. of Birendranath Halder, in the volume book, maintained in the concerned registry office.

7. Subsequent to the order dated 2nd August, 2018, allowing appointment of handwriting expert, defendants filed recalling application taking a plea that the document, with which the comparison was sought for, was itself fraudulent, and thus disputed with such document, being produced by the plaintiffs/petitioners.

8. After the rejection of such prayer, the defendants challenged the same before this Court in C.O. No. 74 of 2019. This Court in C.O. No. 74 of 2019, directed the Trial Court to reconsider the recall application on merits upon giving opportunities of hearing to both sides.

9. By the order impugned, the court below allowed the recalling application of defendants disputing with the veracity, genuineness and contents of the document, in view of the objection of the defendants alleging the purported document to have been fraudulently prepared and, as such the same could not be relied upon for the proposed comparison.

10. The court below, while making consideration of the recalling application, came to a finding relying upon a principle that nobody can convey better title/interest, than him himself has, because some excess area of land had been transferred, beyond the title of the transferor. The court below thus was not prepared to accept such document to be admitted and standard one, for the proposed comparison of L.T.I. found on two documents, disclosed here-in-above.

11. Mr. Satyajit Mondal, learned advocate appearing for the petitioners submitted that the recalling application had been decided upon challenging the genuineness, veracity of such document, which was not at all called for in the present case, for declaration and injunction.

12. Mr. Mondal further contended that the court below had exceeded his jurisdiction to decide the content and veracity of the purported document, dated 26.07.1971, going deep into the merits of the document by prejudicing the same, which is not permissible under the provisions of Section 73 read with Sections 45 and 47 of the Indian Evidence Act, 1872.

13. It was thus contended by Mr. M