JUDGMENT :

1. Heard Mr. N. Haque , learned counsel for the petitioners.

2. This matter was heard at length on 20.3.2023 on which date Mr U.C. Rabha learned counsel for the respondent concluded his argument. Mr. Haque, learned counsel for the petitioner advanced his reply argument today.

3. The present application is filed assailing an order dated 19.4.2022 passed by the learned Munsiff No.1, Barpeta in Petition No. 193/2022 (arising out of Title Suit No.68/2017).

4. The said Petition No.193/2022 was filed by the plaintiff in Title Suit No. 68/2017 under Order 26 Rule 10 A read with Order 13 Rule 10 and Section 151 of the CPC,1908 and u/s 45 of Indian Evidence Act,1872. Such petition was rejected by the impugned order dated 19.4.2022, by the learned trial court.

5. The facts in a nutshell leading to filing of the present application can be summarised as follows:

I. The petitioners as plaintiffs instituted a suit being Title Suit No. 68 of 2017 in the Court of learned Munsiff No. 1, Barpeta against the respondent herein for declaration of right, title and interest over the Schedule B land and for khas possession over the Schedule-B land.

II. It is the pleaded case of the plaintiff that original pattadar one Omarjan Nessa sold 1 bigha of land from her share to one Amzad Ali by executing a registered sale deed being sale deed No.2174/1983 dated 16.12.1983 and delivered possession thereof. Subsequently said Amzad Ali sold the land to his brother Mokshed Ali i.e., the predecessor-in-interest of the plaintiff by executing a registered sale deed being Sale deed No. 2195/1984 dated 8.4.1984 and delivered the possession with specific boundary. The said 1 bigha of land is described in Schedule B of the plaint. According to the plaintiff, the defendants were the permissive possessor over the Schedule B land. However, when they collusively mutated the Schedule B land alongwith defendant Nos.2 and 3, the plaintiff asked them to vacate the land which defendants refused and accordingly, the suit was filed.

III. The defendants appeared before the learned Trial court below and filed their written statement taking a specific plea that the predecessor in interest of plaintiff namely Mokshed Ali sold and transferred 2 kathas 10 Lechas of land within the Schedule-A by a registered Sale Deed No. 547/1987 dated 13.3.1987 and delivered the possession of the said land. It is the further case of the defendant that the pre-decessor in interest of plaintiffs (Mokshed Ali) executed an agreement for sale on 17.4.1989 in respect of another 2 Kathas 10 Lechas of land in favour of the defendant and delivered possession. Accordingly, they filed a counter claim for specific performance of the agreement dated 17.4.1989 and declaration of their right, title and interest on the basis of sale deed No. 547/87 dated 13.3.1987.

IV. The plaintiffs filed written statement in the counter claims and took a specific stand that their predecessor in interest Mokshed Ali has not executed Sale Deed No. 547/1987 dated 13.3.1987. They further denied the execution of deed of agreement by their father Mokshed Ali. During the trial the plaintiffs exhibited the sale deed No. 2174/1983 dated 16.12.1983 as Ext. 3 and to prove such exhibits they examined one witness namely Mowajjan Hussain as PW 6.

V. It is also the case of the defendant that alongwith the said Mowajjan Hussain, the predecessor-in-interest of the plaintiffs namely Moksed Ali was a witness to the aforesaid sale deed dated 16.12.1983. The PW 6, Mowajjan Hussain identified the signature of the vendor of the sale deed and thumb impression of Mokshed Ali. According to said witness (PW 6), Mokshed Ali put his thumb impression in front of him, at the time of registration of the aforesaid sale deed.

VI. In the aforesaid backdrop, the plaintiffs filed Petition No. 193/2022 as discussed hereinabove with a prayer to compare the alleged thumb impression of Mokshed Ali, the predecessor in interest of the plaintiffs which is reflected in sale d