The main legal point established in the judgment is the importance of hand writing expert opinion in challenging the authenticity and genuineness of a document, as provided under Order XXVI Rule 10A of C.P.C and Section 73 of the Evidence Act.

JUDGMENT :

Subhasis Dasgupta, J.

1. The impugned order no. 49, dated 20th July, 2019, passed by learned Civil Judge (Junior Division), Kalyani, Nadia in T.S. No. 141 of 2014, rejecting the application under Order XXVI Rule 10A of Code of Civil Procedure, praying for hand writing expert opinion is subject of challenge in this revisional application.

2. Mr. Malay Bhattacharyya, learned advocate for the petitioners/defendants submitted that the learned court below had mechanically rejected the prayer for hand writing expert opinion without having understood the true purport of the provisions contained in Order XXVI Rule 10A of C.P.C, together with the specific averment taken by petitioners in their written statement challenging the authenticity and genuineness of the deed being no. 779 of 1983, said to have been executed by one Janab Ali Mondal, and thereby alleging therein that the purported deed under reference had been fraudulently prepared, collusive, null and void, and not binding upon the petitioners and further that no possession of proposed land had been handed over in favour of the opposite parties/plaintiffs in any manner whatsoever.

3. Adverting to the impugned order, learned advocate for the petitioners contended that learned court below was not justified in denying the hand writing expert opinion merely on the ground that the purported deed under challenge had already been exhibited and further the evidence of the opposite parties/plaintiffs had been concluded including cross-examination.

4. Mr. Shyamal Mukherjee, learned advocate representing opposite parties making use of an affidavit in opposition submitted that the learned court below had rightly rejected the application under Order XXVI Rule 10A of C.P.C., praying for hand writing expert opinion on the ground that there had been closure of the evidence of plaintiffs and the purported document had already been marked exhibit providing ample scope to the petitioners to challenge the veracity of the purported document doing necessary cross-examination.

5. More so, the prayer for hand writing expert, according to learned advocate for the opposite parties, was unnecessary in the given facts and circumstances of this case, as there could be effective comparing of signature and as well as thumb impression of vendor of opposite parties appearing in the two deeds produced after resorting to provisions available under Section 73 of Evidence Act.

6. It is a suit for declaration wherein sale deed dated 12.06.2014, was sought to be declared illegal, baseless, non-operative, void and not binding upon the opposite parties.

7. The case of the opposite parties made out in Para-1 & 2 of the plaint is that the suit property was previously owned and purchased by one Janab Ali Mondal. Said Janab Ali Mondal sold out in the year 1983, four (4) decimals of land, out of 35 decimals in plot no. 246, receiving valuable consideration to opposite parties/plaintiffs. The opposite parties had their own land property in southern side of such newly purchased property.

8. The defendant nos. 4-13 being the descendants of vendor of opposite parties/plaintiffs, knowing fully well that their predecessor had already sold out property to the extent mentioned hereinabove to opposite parties/plaintiffs, they again sold away the same to defendant nos. 1 to 3 by sale deed dated 12.06.2014, which is under challenge before the learned court below.

9. As against the case made out in the plaint, the specific defence of the petitioners set out in their written statement is that Janab Ali Mondal never executed the purported deed of 1983 in favour of opposite parties/plaintiffs, and the possession of the same had not been delivered thereby.

10. Upon perusal of the pleadings of both the parties, it appears that since beginning petitioners had challenged the veracity and genuineness of the signature of vendor of opposite parties/plaintiff appearing on the deed, stated to have been executed by their predecessor Jana