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2011 Supreme(Mad) 1688
2011 (2) MWN(Civil) 536
High Court of Judicature at Madras
G. RAJASURIA
Selvan
Versus
Azhagan & Others
S.A.No.84 of 2009 & M.P.Nos.1 of 2011 & M.P.No.1 of 2009
Decided on : 25-03-2011
For the Appellant:N. Manokaran, Advocate. For the Respondents:R1 - S. Rajendra Kumar, Advocate.
The reliance on a private fingerprint expert's opinion and the applicability of res judicata and Order 2 Rule 2 of the CPC were the central legal points established in the judgment.
Headnote:
Fingerprint Expert - Partition Suit - Indian Evidence Act - Section 73, CPC - Order 2 Rule 2 - [19, 23, 24] - The court relied on the opinion of a private fingerprint expert to establish the authenticity of a disputed thumb impression, rejecting the appellant's contention that the expert's opinion was unreliable due to her status as a private expert. The court also held that the judgment and decree in a previous suit for specific performance did not bar the plaintiff from seeking partition, and that the judgments and decrees in other suits did not operate as res judicata or violate Order 2 Rule 2 of the CPC.
Fact of the Case:
The plaintiff filed a suit for partition of land, claiming one fourth share. The trial court decreed the suit, but the eighth defendant appealed, challenging the reliance on a fingerprint expert's opinion and the applicability of res judicata and Order 2 Rule 2 of the CPC.
Finding of the Court:
The court found that the fingerprint expert's opinion was reliable and admissible, and that the previous judgment and decrees did not bar the plaintiff's suit for partition.
Issues: The issues included the reliability of the fingerprint expert's opinion, the applicability of res judicata and Order 2 Rule 2 of the CPC, and the perversity or illegality in the judgments and decrees of the lower courts.
Ratio Decidendi: The court held that the private fingerprint expert's opinion was admissible and reliable, and that the previous judgment and decrees did not bar the plaintiff's suit for partition.
Final Decision: The Second Appeal was dismissed, and no costs were awarded.
1. This Second appeal is focussed by D8 in the original suit, animadverting upon the judgment and decree dated 20.11.2008 passed in A.S.No.4 of 2008 by the Additional District Court/Fast Track Court No.IV, Bhavani, confirming the judgment and decree of the First Additional District Munsif Court, Bhavani in O.S.No.307 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The plaintiff filed the suit for partition of an extent of 9.59 acres of land into four equal shares and allot one such share to plaintiff and for obtaining other consequential reliefs.
(b) The written statement was filed by the defendants resisting the suit.
(c) Whereupon issues were framed by the trial Court.
(d) During trial, the plaintiff-Azhagan examined himself as P.W.1 along with P.W.2-Paramasivam and Exs.A1 to A12 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined and Exs.B1 and B2 were marked. C.W.1 – Jayadevi was examined as Court witness and Exs.C1 to C5 were marked.
3. Ultimately the trial Court decreed the suit allotting one fourth share in favour of the plaintiff. Being aggrieved by and dissatisfied with the said judgment and decree of the trial Court, the eighth defendant preferred the appeal before the first appellate Court for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the trial Court.
4. Challenging and impugning the judgements and decrees of both the Courts below, this Second Appeal has been filed by the eighth defendant on various grounds suggesting the following substantial questions of law:
"(a) Whether the courts below erred in law and misdirected themselves in granting the relief of partition merely on the basis of the sale deed in the name of the plaintiff, in the absence of any other oral or documentary evidence of title to his vendor or in the absence of any evidence to prove the testamentary succession in favour of the 7th defendant?
(b) Whether the Courts below erred in law and misdirected themselves in granting the decree solely on the basis of the finger print opinion given by a private expert (C.W.1) particularly when her evidence is not trustworthy and expert opinion is not a conclusive one in evidence?
(c) Whether the courts below erred in law in disbelieving the sale deed executed by the court in favour of 8th defendant under Ex.B1 in pursuance to a decree granted in O.S.No.202 of 2001 filed by the 8th defendant against the 7th defendant for specific performance?
(d) Whether the suit filed by the 1st respondent herein is hit by the principle of constructive res-judicata in view of the dismissal of the suit in O.S.No.83 of 2001?"
(extracted as such)
5. On hearing both sides, I have been of the considered view that the following substantial questions of law should be framed:
(1) Whether the opinion given by the fingerprint expert as relied by the Courts below is unreliable because she happened to be a private fingerprint expert?
(2) Whether the judgment and decree passed in O.S.No.22 of 2001, which was a suit for specific performance, obtained by the eighth defendant as against the seventh defendant would be a bar for seeking partition by the plaintiff, and whether the Courts below failed to decide in favour of the eighth defendant holding that the present suit was barred?
(3) Whether the Courts below failed to hold the judgment and decree in the injunction suit in O.S.No.83 of 2001 as the ones operating as res judicata and that the present suit was hit by Order 2 Rule 2 of C.P.C.?
(4) Whether there is any perversity or illegality in the judgments and decrees of both the Courts below?
6. Heard both sides.
7. The warp and woof of the arguments, as put forth and set forth on the side of the eighth defendant, would run thus:
