The main legal point established in the judgment is the interpretation and application of Section 73 of the Evidence Act, 1872, in determining the authenticity of thumb impressions.

ANIL KSHETARPAL, J.

1. Plaintiff is in Regular Second Appeal against the judgment passed by Additional District Judge, Kaithal reversing the judgment of the trial Court.

2. While admitting the appeal on March 20, 2006, this Court passed the following order:-

“Counsel for the appellant contends that in this case the trial Court has decreed the suit of the plaintiff while holding that the collusive decree dated 8.6.1982 is null and void, and the said finding was recorded on the basis of the expert's report, who had compared the admitted thumb impressions of the plaintiff (Ex.P1), which were taken in presence of the Presiding Officer in the Court, and further recorded a finding that the defendants have failed to prove the family settlement. However, the first Appellate Court has reversed the judgment and decree of the trial Court on the ground that the specimen thumb impressions of the appellant were not in terms of Section 73 of the Indian Evidence Act and further it has been found that the plaintiff has failed to prove his possession over the suit land, therefore, his simple suit for declaration is not maintainable. Counsel contends that both the findings recorded by the first Appellate Court are contrary to the evidence of the parties. He submits that the first Appellate Court has totally ignored the specimen thumb impressions of the plaintiff (Ex.P1), which were taken in presence of the Presiding Officer and those were compared by the Handwriting Expert, who found that the same were not tallying with the thumb impressions of the plaintiff on the written statement, power of attorney etc. in the previous suit. The first Appellate Court has also not taken into consideration that the plaintiff was a co-sharer and the land was joint. In view of these submissions, the following substantial questions of law are involved in this appeal:-

(i) Whether the signatures taken by the Handwriting and Finger Print Expert of the plaintiff-appellant before the Presiding Officer for comparison were as per requirement of Section 73 of the Evidence Act?

(ii) Whether the decree dated 8.6.1982 was compulsorily registrable when there was no family settlement proved by the defendant-respondent No.1?

(iii) Whether the suit of the plaintiff-appellant can be dismissed on the ground that he has not sought possession of the suit land even though he is a co-sharer with the defendant-respondent No.1?

Admitted.

Status -quo regarding alienation be maintained by the parties during the pendency of the appeal.”

3. Plaintiff had filed a suit for declaration and permanent injunction. Plaintiff had claimed that he is owner of the land mentioned in the plaint. He challenged the decree passed by Civil Court in Civil Suit No.491 of 1982 titled Smt. Khazani Vs. Chatra etc. It was stated that the aforesaid decree is result of fraud. The decree was challenged on various grounds.

4. Defendant No.1 contested the suit and claimed that the suit was not maintainable. The suit was also claimed to be barred by time. It was pleaded that Chatra himself had suffered the impugned decree. Defendant denied the allegation of fraud. Defendant further reiterated that a family settlement was arrived at and pursuant to the aforesaid family settlement, the plaintiff suffered a decree.

5. Learned trial Court after appreciating the evidence available on the file decreed the suit filed by the plaintiff to the extent of declaration that the aforesaid decree is result of fraud. Learned trial Court relied upon the opinion of the expert who opined that the thumb impressions of Chatra available on the written statement and the statement before the Court in the previous suit which resulted in decree dated 08.06.1982 do not match with the standard thumb impressions of Chatra taken in the Court in the present suit.

6. Defendant No.1 filed an appeal. The First Appellate Court has reversed the judgment and decree of the trial Court by assigning two reasons:-

(i) Plaintiff is not proved to be in possession.