JUDGMENT

Date : 15-11-2021 Heard Mr. SK Ghosh, learned counsel for the petitioner and Mr. M.H.

Rajbarbhuiyan learned counsel for respondent Nos.1 to 4 as well as Mr. A Mannaf, learned counsel for respondent No.7(i).

2] This is an application under Article 227 of the Constitution of India, challenging the order dated 07.02.2019 passed by the learned Civil Judge, Goalpara in Title Appeal No.07/2017 whereby the application filed by the respondent No.4 for examining the thumb impression of the original defendant No.1 late Bastuallah Seikh appearing in exhibit-1 i..e, the deed of sale bearing deed No.1173/1179 dated 06.03.1978 was allowed at the appellate stage.

3] The facts of the instant case for the purpose of the disposal of the instant proceeding is that the petitioner as plaintiff has instituted a suit for declaration their of right, title and interest and for recovery of possession which was registered and numbered as Title Suit No.4/2009 before the Court of the learned Munsiff No.1, Goalpara. In the said suit, it is the case of the plaintiff that late Bastullah Seikh had executed the deed of sale on 06.03.1978 in respect to the suit land in favour of the plaintiff and thereafter handed over the possession to the plaintiff after a few days. The plaintiffs continued to remain in possession till 06.12.2008 when the defendants dispossessed the plaintiffs for which he had instituted the aforementioned suit. The defendants in the suit, filed a joint written statement stating inter alia that the defendant No.1 neither executed any sale deed nor delivered possession in favour of the plaintiff as alleged. Issues were framed and evidences were led and thereupon the trial Court vide the judgment and decree dated 11.04.2017 decreed the suit in favour of the plaintiff declaring that the plaintiff is the owner of the suit land and also for delivery of khas possession. It may be relevant herein to mention that the original deed of sale bearing deed No.1179/1173 dated 06.03.1978 was exhibited as exhibit-1.

4] Being aggrieved by the judgment and decree dated 11.04.2017, an appeal was preferred by the respondent Nos.1 to 4 herein which was registered and numbered as Title Appeal No.7/2017. In the said appeal, an application was filed by the respondent Nos.1 to 4 requesting the Appellate Court to exercise its jurisdiction under Order XLI Rule 27 for sending the thumb impression appearing in the exhibit-1 to the handwriting expert as it was the specific case of the respondent Nos.1 to 4 herein in the suit that the original defendant No.1 did not execute the Deed of sale dated 06.03.1978. The petitioner herein duly objected to the said application by filing a written objection stating inter alia that the deed of sale dated 06.03.1978 have been duly proved in accordance with law and consequently the question of sending the said documents to the handwriting expert does not arise and the evidence and materials before the Appellate Court was sufficient to decide the Appeal.

5] The Appellate Court at the time of hearing of the appeal vide an order dated 07.02.2019 exercised the jurisdiction under Order XLI Rule 27 in order to secure the ends of justice for the reasons assigned in the order directed that the thumb impression available in the alleged registered sale deed dated 06.03.1978 be examined by an expert of the Forensic Science Laboratory, Guwahati with the thumb impression appearing in the written statement of the original defendant No.1 and thereby fixed 15.03.2019 for expert opinion/report.

6] I have heard Mr. SK Ghosh, learned counsel for the petitioner who submits that the exercise of jurisdiction by the Court below under Order XLI Rule 27 was not in accordance with the judgment of the Supreme Court rendered in the case of Union of India Vs. Ibrahim Uddin reported in (2012) 8 SCC 148, inasmuch as, the grounds shown in the petition was that the lawyer had made the mistake of not sending the signature to the handwriting expert during the trial,