Hon'ble PANWAR, J.—This civil first appeal is directed against the judgment and decree dated 29.1.2002 passed by Additional District Judge No. 2, Jodhpur (for short "the trial Court" hereinafter) whereby the suit filed by the respondent-Laxmi Chand against Sumer Chand and others for possession of the suit premises and mesne profit, was decreed.

2. Briefly stated facts to the extent they are relevant and necessary for the decision of the appeal as also cross-objection filed by the respondent-plaintiff Laxmi Chand are that the respondent-plaintiff Laxmi Chand filed a suit against Sumer Chand and three others, the appellants herein are the legal representatives of Sumer Chand, on the ground that immovable property i.e. residential house situated at Chandi Hall, Jodhpur was originally owned by Ummed Chand, the father of defendant-Sumer Chand and plaintiff-Laxmi Chand. The said immovable property was partitioned by a registered partition-deed on 14.11.1974. The plaintiff claimed that he was in possession of the property of his share till July, 1989 and thereafter, the plaintiff shifted to the rented house as there were some disputes between the family members. It was alleged that thereafter, the defendant-Sumer Chand took the possession of the house. The defendant-Sumer Chand, in life time, filed the written statement to the suit and came with a plea that by a notice, plaintiff-respondent resiled from partition-deed and therefore, the partition-deed has not been acted upon. On the pleadings of the parties, the trial Court framed issues and tried the suit. The parties led the evidence and on appreciation of evidence, the trial Court decided the material issue in favour of the plaintiff-respondent and against the appellant-defendant and accordingly, decreed the suit. Aggrieved by the judgment and decree impugned, the appellants, who are the legal representatives of the defendant- Sumer Chand filed this appeal.

3. The respondent-Laxmi Chand filed cross-objection to the finding of issue No. 6 which relates to the grant of mesne profit.

4. This appeal came to be filed in the month of September, 2002. When the appeal came up for hearing, the appellants-defendant filed an application under Section 45 of the Indian Evidence Act read with Section 151 CPC being IA No. 106/2010 on 5.1.2010. I have heard learned counsel for the parties on application.

5. It is contended by learned counsel for the appellants that the plaintiff-respondent by notice dated 9.7.1976 cancelled the partition deed dated 14.11.1972. The notice alleged to have been issued by the respondent-plaintiff has been filed by the appellants-defendant during the trial of the case and marked as Exhibit A-1. However, the plaintiff-respondent denied the issuance of the said notice and disputed his signature on it and therefore, to establish that notice Exhibit A-1 dated 9.7.1976, the trial Court framed the issue No. 7-A and burden to prove this issue was on the defendant-appellant which the appellant failed to discharge the burden before the trial Court, and therefore, the appellant-defendant now want to prove that the alleged notice Exhibit A-1 was issued and signed by the plaintiff-respondent and for that it is necessary to get the said document examined by the handwriting expert, more particularly the alleged signature of the plaintiff-respondent.

6. According to learned counsel for the appellants, Section 45 of the Evidence Act provides that when the Court has an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specifically skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts and therefore, expert opinion of handwriting expert be called for by sending the notice Exhibit A-1 for examination by expert.

7. According to learned counsel for the appellants, opinion of the han

Click Here to Read the rest of this document