SHAKUN Vs. SHASHI JAIN

JUDGEMENT

(1.) Heard. This writ petition under Article 227 of the Constitution of India has been preferred against the impugned order dated 12.08.2015 passed in Civil Suit No.21-A/2015 by which the First Civil Judge Class II, Ganj Basoda, District Vidisha (M.P.) whereby the application under Section 45 of the Evidence Act read with Order 26 Rule 10(a) of the Code of Civil Procedure, 1908 has been dismissed.

(2.) A Suit for declaration to the effect that the father of the plaintiffs, husband of the defendant No.1 and father of defendant No.2, 3 was Chandmal S/o Shri Duli Chand, another son of Duli Chand is defendant No.4. In the suit, it is stated that Dhuli Chand died on 15.09.2004 leaving behind certain immovable property. In the said property, the plaintiff had 1/2 share and defendants No. 2 and 3 had 1/2 share. Since the partition had already took place, the defendant No.4 had no interest in the suit property and as such the suit was filed for declaration of the 1/2 share.

(3.) The written statement was filed by the defendants No.1, 2 and 3 in which it has been stated that the plaintiff had taken 75,000/- as consideration of her share and has executed a document dated 04.10.2004 before the Panchas as such she is not entitled for any share. On the basis of the pleadings of the parties, the learned trial Court framed four issues on 22.09.2011 and an additional issue was framed on 25.11.2011 regarding release of her share. The evidence was led by both the parties. On 06.05.2013, an application under Section 45 of the Evidence Act read with Order 26 Rule 10(a) of the Code of Civil Procedure, was filed by the petitioner/plaintiff praying for calling handwriting expert to submit his report on the document dated 04.10.2004. Such application was vehemently opposed by the respondents by filing reply in which it has been stated that the application has been filed belatedly.