K.P.Singh - (1.) MOHIT Koiry filed the suit claiming the disputed land as his Bhumidhari. It has been alleged in the suit that the defendant Mst. Dhanrajiya wrongly refuted the agreement and succeeded in obtaining withdrawal of Bhumidhari certificate granted to her after the execution of the sale deed in favour of the plaintiff, therefore, the withdrawal of Bhumidhari sanad was not binding upon the plaintiff and that the defendants threatening to interfere with the plaintiff's possession over the disputed land, hence the suit for permanent injunction restraining the defendant from interfering with the plaintiff's possession.
(2.) THE defence in the suit was that the plaintiff had no cause of action and that the plaintiff was trying to grab the disputed land, therefore, he succeeded in obtaining Bhumidhari Sanad in respect of the disputed land by presenting an unknown woman and got a forged and fictitious sale deed in his favour and that the plaintiff was neither Bhumidhar nor in possession of the disputed land and various other pleas were taken to negative the claim of the plaintiff as is evident from the issues framed in the judgment of the trial court. Both the courts below have given judgments against the plaintiff and aggrieved by their judgments the plaintiff Mohit Koiry has preferred the above-noted second appeal. During the pendency of the second appeal the plaintiff-appellant has died who has been substituted by his heirs, namely Ajay Kumar and others. The learned counsel for the plaintiff appellant has contended before me that the appellate court has acted illegally in holding that the sale deed set up by the plaintiff appellant was not proved in accordance with law and, therefore, the claim of the plaintiff in the disputed land has been wrongly negatived. In this connection the learned counsel for the plaintiff appellant has contended that at the appellate stage an application was moved for permission to bring expert report and for summoning Register No. 8 of the Registration Department which was wrongly and illegally rejected. Thereafter the appellate court has failed to examine the admitted signature or thumb mark with the thumb mark on the entry of the sale deed relied upon by the plaintiff appellant in the Register No. 8, therefore, the findings recorded by the lower appellate court are wrong and illegal. In this connection the learned counsel for the plaintiff appellant has placed reliance upon the ruling reported in AIR 1957 Manipur 9 Kangabam Bira Singh v. Manipur Drivers' Union Co-operative Association Ltd. and has emphasized the following observation in para 7 of the aforesaid ruling : - " Under section 67, Evidence Act it is necessary that the signatures or the handwriting or so much of the document as is alleged to be in a particular person's handwriting must be proved to be in his handwriting. There are recognised modes of proving a signature and they are: (i) By calling a person who signed or wrote a document. (ii) By calling a person in whose presence the document was signed or written. (iii) By calling a handwriting expert. (iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written. (v) By comparing in court the disputed signature or writing with some admitted signature or writing. (vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it. (vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. (viii) A signature is proved to have been made if it is shown to have been made at the request of a person by some other person e. g. by the scribe who signed on behalf of the executant. (ix) By other circumstantial evidence. Vide Monir's Indian Evidence Act, Edn. 3, p. 549 " .
(3.) BEFORE me it has been stressed that the appellate court failed to compare the thumb mark of the defendant available in the case with the thumb mark in the Register maintained by the Registration Department. In my opinion the contention of the learned counsel for the plaintiff appellant has no substance in the facts and circumstances of the present case. The perusal of the impugned judgments does not indicate any valid reason as to why the original sale deed was not filed in the case specially when it was the basis of the plaintiff's title. Secondly, I also agree with the observation of the lower appellate court that there was no justification for moving an application at the appellate stage for summoning the Register No. 8 of the Registration Department and for bringing expert opinion on the record. When the appellant's application had been rejected for bringing expert opinion on the record and summoning Register No. 8 of the Registration Department there was no material before the appellate court for com- parision of the thumb mark of the defendant on the sale deed with the admitted thumb mark available in the suit. Moreover, in the present appeal the lower appellate court has come to the conclusion that the plaintiff appellant has failed to adduce any believable evidence to prove that the sale deed was really executed by the defendant Smt. Dhanrajiya and that Smt. Dhanrajiya had applied for permission to deposit 20 times of the land revenue with a view to obtain Bhumidhari sanad. It is noteworthy that one of the pleas raised on behalf of the defendant was that the plaintiff had succeeded in obtaining Bhumidhari Sanad with regard to the disputed land by setting up an imposter. A heavy burden lay upon the plaintiff to establish that the Bhumidhari Sanad was really obtained by the defendant Smt. Dhanrajiya. Since the evidence led by the plaintiff was not accepted by the appellate court in this regard, it is evident that Smt. Dhanrajiya did not become Bhumidhar of the disputed land. Even if for the sake of arguments it is assumed that the plaintiff had got a sale deed from Smt. Dhanrajiya it would be of no avail to the plaintiff because in the facts and circumstances of the present case the defendant Smt. Dhanrajiya would not be Bhumidhar of the disputed land. Being sirdar of the disputed land in the eye of law the defendant Smt. Dhanrajiya could not transfer the disputed land, therefore, even if the sale deed in favour of the plaintiff is held as proved, it would confer no right upon the plaintiff. There is a clear and categorical finding of fact by the two courts below that the plaintiff was not in possession over the disputed land. Therefore, the plaintiff could not get any permanent injunction restraining the defendant from interfering with bis possession over the disputed land. To my mind, the contentions raised on behalf of the plaintiff-appellant have no force and this second appeal is devoid of merits and deserves dismissal.;