1. Petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by order dated 17.11.2017 passed in Civil Suit No.10-A/2011 by the Court of 2nd Additional District Judge, Dabra, District Gwalior, whereby an application filed by the plaintiff/petitioner under section 45 of the Evidence Act at the stage of final arguments to examine the signatures of the author on the sale-deed has been rejected.

2. It is petitioner’s contention that such order is arbitrary, illegal and unjust inasmuch as there is no provision in the Evidence Act as to the stage at which such application is to be filed for comparison of the signatures under section 45 of the Evidence Act. Learned counsel for the petitioner submits that application for examination of handwriting expert may be allowed even at late stage, but contrary to allowing, this application has been rejected. It is further submitted that in the cross-examination of the defendant difference in the signature of Khuman Singh on Ex.P-12 and Ex.P-13 has been revealed which requires expert opinion and since Court is not an expert, the application has been wrongly rejected.

3. A perusal of the suit filed by the plaintiff/petitioner reveals that it has been filed for declaration and return of the possession so also declaration of the sale deed dated 24.12.2010 to be null and void and ineffective. It is plaintiff’s case that he has a building contained in Survey No.289 min measuring 30 × 50 =1500 sq.ft. at Survey No.23 Raghunagar Balla Ka Dera, Dabra. Suit is being filed for a piece of land measuring 1086 sq. ft. out of said 1500 sq. ft. of land. It is plaintiff’s case that he had purchased said suit property vide deed dated 20th April, 2009 and taken possession of the property. Thereafter, name of the plaintiff was mutated in the Government records and his possession is uninterrupted. Since plaintiff is unmarried and is aged about 78 years, therefore, he decided to sell a piece of 400 sq. ft. of land out of 1500 sq. ft. and gave an offer to the defendant that he would like to sell 400 sq. ft. of land so that he can get first floor of the building constructed and rent it out so to make his ends meet. On such understanding, plaintiff had given a power of attorney in favour of the defendants for selling 400 sq. ft. of land. Since defendants are the nephews of the plaintiff, he had gone along with them to the office of Sub-Registrar, but instead of power of attorney, defendants got the sale deed executed taking advantage of reduced sensation in his sensory organs and also for the reason of illiteracy of the plaintiff. On 8.8.2011 when plaintiff contacted the defendants to enquire about the progress of transaction of sale, then defendants taking advantage of the position of the plaintiff, took possession of the suit property. In view of such submissions, aforesaid relief has been sought.

4. Plaintiff had led his evidence and so also the defendants. Thereafter, an application under section 45 of the Evidence Act has been filed saying that defendant Kamal Singh has deliberately made statement in regard to signature of Khuman Singh on Ex.P-12, and therefore, plaintiff wanted to examine the signatures of Khuman Singh in the hands of an handwriting expert.

5. Reply to this application was furnished. It was mentioned that suit is pending since 2011 and with a view to delay the suit such application has been filed.

6. The trial Court has rejected the application recording a finding that testifying witnesses of the deed were the best witnesses to show that whether the deed was executed by Ratan Singh or not and the application which has been filed at the final hearing stage is not binding on the Court and in any case, the Court is competent to give finding as to the authenticity of the handwriting. It is settled principle of law that evidence led under section 45 as well as 47 of the Evidence Act is in the nature of an opinion, in the former by a scientific comparison and in