{1}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.4126 OF 2011

Biban s/o Fakirsab Shaik

Petitioner

Versus

Ramrao s/o Ganpati Dongare & others

Respondents

Mr.S.S.Halkude, advocate for the petitioner.

CORAM : S.S.SHINDE, J.

DATE : 30

th

November, 2011

PER COURT:

1

Learned Counsel for the petitioner submits that the

petitioner has filed application at Exhibit-37 in Regular Civil Suit No.

145/2008 praying therein that the sale deed bearing thumb impression

of the petitioner be sent to the expert for comparing the thumb

impression thereon with the thumb impression on the Register kept at

Sub Registrar Office, Udgir. However, the said application has been

rejected by the trial Court on the ground that the sale deed is a

registered document having two attesting witnesses and two other

persons have filed affidavits stating therein that the document of the sale

deed is a genuine one.

2

Learned Counsel for the petitioner placed reliance on the

reported judgment of the Supreme Court in the case of Jaspal Singh Vs.

State of Punjab, reported in AIR 1979 SC 1708. Relying on the said

judgment, Counsel for the petitioner would submit that so far as thumb

{2}

impression is concerned, evidence of expert is necessary. Science of

identifying thumb impression is an exact science and does not admit of

any mistake or doubt. According to the learned Counsel for the

petitioner, the sale deed, therefore, should have been sent to the expert

for comparison of the thumb impression with the thumb impression put

on the register maintained at the Sub-Registrar office or with the actual

thumb impression of the petitioner. However, the trial Court has refused

to entertain the said prayer.

In the alternative, learned Counsel for the petitioner would

submit that if this Court is not inclined to allow this writ petition, in that

case, liberty may be given to the petitioner to agitate this point before the

trial Court and if the trial Court, on its own, finds it necessary, at the

time of final hearing of the suit, to send the said document to the expert,

in that case, rejection of this writ petition may not come in the way of the

trial Court.

3

Upon hearing learned Counsel for the petitioner and upon

perusal of the reported judgment in the case of Jaspal Singh (supra), I

find that the contention of the petitioner that in each and every case

where there is a thumb impression on the document in question should

be sent to the expert, cannot be accepted. In the case of Jaspal Singh

(supra), the witness has given statement before the police authorities on

which there was thumb impression of the witness. To ascertain

genuineness of the thumb impression, it appears that the document was

referred to the expert. However, in the present case, the document,

which the petitioner wants to send to the expert, is a registered sale deed

attested by two attesting witnesses and also supported by two persons

who have filed affidavits stating that the transaction has been entered

{3}

into between the petitioner and defendant no.4. Therefore, the view

taken by the trial Court cannot be said to be unreasonable or perverse.

However, I find some substance in the contention of learned Counsel for

the petitioner that the petitioner may be given liberty to agitate the said

point at the time of final hearing of the matter and also liberty may be

given to the petitioner to insist for sending the document for comparison

of the thumb impression on the said document to the expert.

4

In view of the finding recorded by the trial Court in para 9

of the impugned order, I am not inclined to allow this writ petition.

However, petitioner would be at liberty to agitate the said point at the

time of final hearing of the suit. If the trial Court feels it necessary at

later stage to send the said document