High Court Division
(Civil Revisional Jurisdiction)
Sheikh Abdul Awal J
Bimol Rosario ……….
………………… Petitioner
vs
Barbara Rosario and others……….Opposite Parties.
Judgment
May 22nd, 2013.
Evidence Act (1 of 1872)
Section 73
Expert’s opinion is not a conclusive evidence which enables the court to come to a satisfactory conclusion, though the said opinion is not binding upon the Court. The Court itself can compare any signature or LTI of any concerned person under section 73 of the Act and come to a decision in accordance with law …. (21)
19 BLT 568; 37 DLR (AD) 205, 45 DLR 279 and 19 DLR188 ref.
Md Khandker Aminul Haque, Advocate-For the Petitioner.
Moudud Ahmed with Md. Abdun Nur, Advocates- For the Opposite Party No. 1.
Judgment
Sheikh Abdul Awal J: This Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and decree dated 23-8-2010 passed by the learned Joint District Judge, 1st Court, Gazipur in Title Appeal No.34 of 2010 affirming those dated 24-11-2009 passed by the learned Assistant Judge, 3rd Court, Gazipur in Title Suit No. 100 of 2009 should not be set-aside.
2. Material facts of the case, in brief, are that the opposite party No.1, Barbara Rosario as plaintiff brought the aforesaid Title Suit No. 100 of 2009 in the Court of Assistant Judge, 3rd Court, Gazipur for cancellation of the gift Deed No.2453 dated 30-6-2004 registered in Tongi Sub-registry Office in respect of the suit land as described in the schedule of the plaint on the averments that the CS, recorded tenant of the suit land as described in the schedule of the plaint was Razu Rosario, who died leaving behind only son Gabriel Rosario alias Gabu Rosario whose name has been rightly recorded in SA 181 and RS Khatian Nos.92 and 93. Gabriel Rosario died leaving behind 3 sons and 3 daughters as his legal heirs and the plaintiff got 31,25 decimals of land including the suit land on amicable partition. The plaintiff’s husband died leaving behind the plaintiff and two children, the plaintiff being earned the livelihood by working in small NGO. In this backdrop the defendant Nos. 1-2 in the first part of the year 2003 told the plaintiff that they have good relation with the Manager and other officials of the House Building Finance Corporation and thus, they can manage to get loan of Taka 10/15 lakh from the House Building Finance Corporation. The plaintiff then being a helpless widow believed the defendant Nos. 1 and 2 in good faith and gave the Photostat copies of the relevant papers and Taka 20,000 to the defendant No.1. After 3/4 months later the defendant No.1 told that loan amount of 10,00,000 has been sanctioned and claimed some additional costs. The plaintiff, thereupon, lending some money gave Taka 30,000 to the defendant No.1 as costs and the defendant Nos 1 and 2 took signature of the plaintiff on blank stamps. After 10/15 days while the plaintiff asked the defendant Nos. 1-2 about the loan then the defendant No.1 told that the plaintiff will get loan amount within 4/5 days but after 5 days defendant No.1 told that it will take some more time. The plaintiff, thereafter, disclosed the matter to her relatives and ultimately, the defendant No.1 on 12-10-2003 denied the whole matter. The defendant Nos. 1 and 2 thereafter, on 28-3-2006 threatened the plaintiff stating; that they will dispossess the plaintiff from the suit land and claimed the suit land on the basis of the impugned deed. The defendant Nos. 1 and 2 created the gift deed collusively in order to grab the suit land. The plaintiff never went to the Sub-registry office to execute and register the impugned deed and hence, the suit.
3. The petitioner (defendant No.1) and defendant No.2 entered appearance in the suit and filed written statement denying most of allegations of the plaint contending, inter-alia, that the suit is not maintainable in its present form and manner inasmuch as the suit is barred by estoppel, waiver and acquiescence. The plaintiff-opposite party No. 1 voluntarily gifted the suit land in favour of the defendant Nos. 1 and 2 (nephews of the plaintiff) and registered the impugned deed of gift No.2453 dated 30-6-2004 AD and on the same day delivered possession of the suit land to them and since then the defendants have been residing thereon by mutating their name and paying rents to the Government. The plaintiff has no right, title and interest in the suit land and, as such, the suit is liable to be dismissed.
4. The learned Assistant Judge, upon considering the pleadings of the parties framed the following issues for determination:-
(i) Whether the suit is maintainable in its present form?
(ii) Whether the suit is barred by limitation?
(iii) Whether the impugned gift No.2453 dated 30-6-2004 is liable be cancelled?
(iv) Whether the plaintiff is entitled to get a decree, as prayed for or any other reliefs?
5. At the trial plaintiff side examined as many as 3 witnesses and the defendant side examined 2 witnesses and both the parties also exhibited some documents including gift deed No.2453 dated 30-6-2004 and hand writing expert’s opinion.
6. The learned Assistant Judge upon hearing argument of the parties and on considering the materials on record by his judgment and decree dated 24-11-2009 decreed the suit in favour of the plaintiff. Against which the defendant Nos. 1-4 preferred Article Appeal No. 34 of 2010 in the Court of District Judge, Gazipur which was eventually, transmitted to the Court of Joint District Judge, 1st Court, Gazipur for disposal, who by the impugned judgment and decree dated 23-8-2010 affirmed the decision of the trial Court on the finding that the trial Court rightly on assigning sound reason doubted the execution of deed of gift dated 30-6-2004.
7. Being aggrieved thereby the present defendant-petitioner has come before this and obtained the present Rule.
8. Mr Khandker Aminul Haque, the learned Advocate appearing for .the defendant-appellant petitioner, Bimol Rosario submits that both the Courts below without applying its judicial mind into the facts and circumstance of the case and law bearing on the subject most illegally disbelieved the execution of the registered deed of gift dated 30-6-2004 (Exhibit A) and the same has occasioned failure of justice. He next upon placing Exhibit B, hand writing expert’s opinion submits that DW-2, hand writing expert upon applying modern technology found signatures of the plaintiff appearing in the deed of gift in question are not forged and hand writing expert as DW-2 in his deposition categorically stated that the deed of gift is genuine and he proved his investigation report along with films as “Exhibit B series” though, both the Courts below without assigning any sound reason rejected the report submitted by DW-2. Mr Khandker Aminul Haque, the learned Advocate while elaborating his submission referred to the decisions reported in 19 BLT 05 and 19 BLT 568 and submits that in this modern world science has been developing day by day and it is also need of the day to detect the truth by applying modern technology and it is apparent from the record that in this case the officer of the CID in order to detect the genuineness of thumb impression of the plaintiff-opposite party by applying modern technology has found that the thumb impressions on the alleged documents with the admitted thumb impressions of the plaintiff are in the hand of the plaintiff-opposite party and in that view of the matter both the Courts below ought to have believed the report of the hand writing expert and in not doing so committed an error of law resulting in an error in the impugned decision occasioning failure of justice.
9. Mr Moudud Ahmed, the learned Advocate appearing for the plaintiff-opposite party No.1, on the other hand, by filing counter affidavit contested the Rule. Mr Moudud Ahmed in the course of his argument upon placing the judgments of two Courts below submits that both the Courts below on perusing the deed in question (Exhibit 1) found there is overwriting, re-writing, wrong spelling in the signatures of the dollar and DW-2 in his cross-examination admitted that date of the impugned deed and the date in the thumb impression book is not the same and in that view of the matter both the Courts below rightly ignored the expert’s opinion. Mr Moudud Ahmed further points out that at the trial the defendants miserably failed to examine any witness to prove their so-called deed of gift which raised a serious question of doubt as to the genuineness of the deed of gift and in that view of the matter both the Courts below committed no wrong in cancelling the impugned gift deed No.2453 dated 30-6-2004 AD registered at Tongi Sub-registry office. Finally, Mr Moudud Ahmed contends that in the facts and circumstance of the case with regard to probability and improbability the learned Judge of the Court .of appeal below rightly held “that the plaintiff is a 45 years old lady, she has two minor children. It is quite unnatural that depriving that minor child their mother could gift her property to her nephews.”
10. Mr Moudud Ahmed’ in support of his submission has relied on the decisions reported in 37 DLR (AD) 205.45 DLR 279 and 19 DLR188.
11. I have heard the learned Advocates of both the sides at length and perused the Revision application, judgments of two Courts below, deposition of witnesses, exhibits and other materials on record.
12. Now, the real question for consideration in this case whether both the Courts below were justified in cancelling the deed of Heba (Exhibit A) upon disbelieving expert’s opinion ( Exhibit B series).
(To be continued)
13. As I have already noticed that the opposite party No.1 as plaintiff filed Title Suit No. 100 of 2009 in the Court of Assistant Judge, 3rd Court, Gazipur for cancellation of the gift deed No.2453 dated 30-6-2004 registered at Tongi Sub-registry office as described in the schedule of the plaint. It is found that the plaintiff-opposite party to prove his case examined 3 witnesses and the plaintiff herself was examined as PW-I, who in her deposition stated that:-
bvt Rwg‡Z Avwg †fvM `L‡jvKvKv‡j ¯^vgx gviv hvq| 1 cyÎ I Kb¨v †i‡L| 1/2 bs weev`x Avgv‡K e¨vs‡Ki †_‡K †jvb wb‡q †`‡e e‡j Rvbvq| †m Rwg‡Z wewìs K‡i evm Kivi Rb¨| GRb¨ wKQz UvKvmn Rwgi KvMRcÎ w`B| wKš’ †jvb †`q bvB| e‡j †h e¨v‡Ki ms‡M Pzw³ Kiv jvM‡e, ó¨v‡¤ú mB jvM‡e| Avwg 5wU ó¨v‡¤ú mB w`B| ó¨v¤ú I UvKv †dir PvB| 1/2 bs weev`x e‡j †h, UvKvI bvB, RwgI bvB| AvZ¥xq ¯^Rb‡K RvbvB| Zjøvkx w`‡q bvt Rvt `wj‡ji bKj DwV‡q weM` 4-9-2006Bs Zvs bvt Rvt `wj‡ji wel‡q Rvb‡Z cvwi| 2453 bs `vbcÎ `wjj 30-6-2004Bs Zvs Avwg KL‡bv †iwRóªx K‡i †`B bvB|
14. PW-2, Malati Rosario stated in her deposition that the plaintiff is her sister and the defendants are her nephews and her sister got the suit land by inheritance. This witness also stated that she came to know about the forged deed from the plaintiff. This witness in her cross-examination denied the suggestion that she deposed falsely as per instruction of her sister.
15. PW 3, Somor Rosario, who stated in his deposition that:-
Avwg ev`x weev`x bvt Rwg wPwb| ev`x Avgvi wcmx| weev`xiv PvPv‡Zv fvB| weev`xiv †jvb †`evi K_v e‡j bvt Rwgi `wjj K‡i †bq| bvt Rwg ev`x kvK mewR K‡i †fvM K‡ib|
16. Let me now advert to the evidence of defendant side. It appears that defendant No. I Bimol Rosario himself was examined as DW-I, who in his deposition stated that-
ev`xmn Avgvi Ab¨vb¨ dzdzM‡bi ms‡M Lye fvj m¤úK©, eow`b, Bóvi mvb‡W mn wewfbœ cvjv ïi cvV‡b Avgv‡`i evox‡Z Avm‡Zb| Avgiv Av`i Avc¨vqb KiZvg| ev`x D³iæ‡c Avgv‡`i cÖwZ mš’ó n‡q bvt m¤úwË `vb K‡i `Lj eywS‡q †`b|
17. DW 2, Md Shahidullah, who examined the thumb impressions of the plaintiff as hand writing expert and submitted a report. This witness proved his report along with films as “Exhibit B series”. This witness in his cross-examination also stated that
cÖwZ‡e`‡b wK cÖKv‡ii Qvc cixÿv K‡iwQ Zv D‡jøL Kwi bvB| Rvb‡Z Pvq bvB|Ó
18. It is found that the trial Court below on consideration of the evidence and materials on record came to a finding that “DW-2 admitted that date of the impugned deed and the date in thumb impression book is not the same even what type of impression has been examined is not mentioned in the report.” On perusal of the exhibits and the depositions of the DWs, contradicts found and, as such, the expert opinion is rejected, and, on this finding the learned Assistant Judge cancelled the deed in question (Exhibit-A) and decreed the suit. Further, it appears from the “Exhibit A, that the attesting witness of the impugned deed was not the member of the donee and donar’s family. DW-1 in his cross-examination admitted that:-
Òbvt `wj‡j Avgvi Ab¨ †Kvb wcmv‡Zv fvBmvÿx bvB|
bvt `wj‡ji mvÿx GKRb Avgvi cÖwZ‡ekx Aci Rb Avgvi k¦ïi|Ó
19, In this case it is found that the defendant Nos. l-2 did not or could not examine any attesting witness to prove the deed of gift (Exhibit A). It is also found that the appellate Court below on the facts of the case and on consideration of the evidence and materials on record arrived at a finding that the plaintiff is a 45 years old lady, she has two minor children. It is quite unnatural that depriving that minor child their mother could gift her property to her nephews.”
20. On a close perusal of the record, I find nothing on record to suggest that any of the witnesses corroborated the evidence of DW 1 on the point of possession of the defendant-petitioner in the suit land.
21. The proposition of law is by now well settled that the expert’s opinion is not a conclusive evidence which enables the court to come to a satisfactory conclusion, though the said opinion is not binding upon the Court. The Court itself can compare any signature or LTI of any concerned person under section 73 of the Evidence Act and come to a decision In accordance with law.
22. In this case the trial Court as well as the Court of appeal below considered the entire evidence on recaard and came to a concurrent finding that in the facts and circumstances of the case there was no reason on the part of the plaintiff opposite party to gift the suit land to her nephews depriving her minor child.
23. On assessment of the evidence on record together with the impugned deed of gift dated 30-6-2004 ( Exhibit A), I do not find any valid ground to differ with the view taken by the Courts below, Therefore, I am unable to accept the contentions mixed by the learned Advocate for the petitioner that both the Courts below without applying in Judicial mind into the facts and circumstance of the case most illegally rejected the expert’s opinion and decreed the suit.
24. The decisions cited by the learned Advocate for the petitioner are distinguishable on facts.
25. In view of my discussion made in the foregoing paragraphs it is by now clear that the instant Rule must fail.
26. In the result, the Rule is discharged without any order as to costs. The judgments of both the Courts below are hereby maintained.
Let a copy of this judgment along with the lower Courts record be sent down at once.
(Civil Revisional Jurisdiction)
Sheikh Abdul Awal J
Bimol Rosario ……….
………………… Petitioner
vs
Barbara Rosario and others……….Opposite Parties.
Judgment
May 22nd, 2013.
Evidence Act (1 of 1872)
Section 73
Expert’s opinion is not a conclusive evidence which enables the court to come to a satisfactory conclusion, though the said opinion is not binding upon the Court. The Court itself can compare any signature or LTI of any concerned person under section 73 of the Act and come to a decision in accordance with law …. (21)
19 BLT 568; 37 DLR (AD) 205, 45 DLR 279 and 19 DLR188 ref.
Md Khandker Aminul Haque, Advocate-For the Petitioner.
Moudud Ahmed with Md. Abdun Nur, Advocates- For the Opposite Party No. 1.
Judgment
Sheikh Abdul Awal J: This Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and decree dated 23-8-2010 passed by the learned Joint District Judge, 1st Court, Gazipur in Title Appeal No.34 of 2010 affirming those dated 24-11-2009 passed by the learned Assistant Judge, 3rd Court, Gazipur in Title Suit No. 100 of 2009 should not be set-aside.
2. Material facts of the case, in brief, are that the opposite party No.1, Barbara Rosario as plaintiff brought the aforesaid Title Suit No. 100 of 2009 in the Court of Assistant Judge, 3rd Court, Gazipur for cancellation of the gift Deed No.2453 dated 30-6-2004 registered in Tongi Sub-registry Office in respect of the suit land as described in the schedule of the plaint on the averments that the CS, recorded tenant of the suit land as described in the schedule of the plaint was Razu Rosario, who died leaving behind only son Gabriel Rosario alias Gabu Rosario whose name has been rightly recorded in SA 181 and RS Khatian Nos.92 and 93. Gabriel Rosario died leaving behind 3 sons and 3 daughters as his legal heirs and the plaintiff got 31,25 decimals of land including the suit land on amicable partition. The plaintiff’s husband died leaving behind the plaintiff and two children, the plaintiff being earned the livelihood by working in small NGO. In this backdrop the defendant Nos. 1-2 in the first part of the year 2003 told the plaintiff that they have good relation with the Manager and other officials of the House Building Finance Corporation and thus, they can manage to get loan of Taka 10/15 lakh from the House Building Finance Corporation. The plaintiff then being a helpless widow believed the defendant Nos. 1 and 2 in good faith and gave the Photostat copies of the relevant papers and Taka 20,000 to the defendant No.1. After 3/4 months later the defendant No.1 told that loan amount of 10,00,000 has been sanctioned and claimed some additional costs. The plaintiff, thereupon, lending some money gave Taka 30,000 to the defendant No.1 as costs and the defendant Nos 1 and 2 took signature of the plaintiff on blank stamps. After 10/15 days while the plaintiff asked the defendant Nos. 1-2 about the loan then the defendant No.1 told that the plaintiff will get loan amount within 4/5 days but after 5 days defendant No.1 told that it will take some more time. The plaintiff, thereafter, disclosed the matter to her relatives and ultimately, the defendant No.1 on 12-10-2003 denied the whole matter. The defendant Nos. 1 and 2 thereafter, on 28-3-2006 threatened the plaintiff stating; that they will dispossess the plaintiff from the suit land and claimed the suit land on the basis of the impugned deed. The defendant Nos. 1 and 2 created the gift deed collusively in order to grab the suit land. The plaintiff never went to the Sub-registry office to execute and register the impugned deed and hence, the suit.
3. The petitioner (defendant No.1) and defendant No.2 entered appearance in the suit and filed written statement denying most of allegations of the plaint contending, inter-alia, that the suit is not maintainable in its present form and manner inasmuch as the suit is barred by estoppel, waiver and acquiescence. The plaintiff-opposite party No. 1 voluntarily gifted the suit land in favour of the defendant Nos. 1 and 2 (nephews of the plaintiff) and registered the impugned deed of gift No.2453 dated 30-6-2004 AD and on the same day delivered possession of the suit land to them and since then the defendants have been residing thereon by mutating their name and paying rents to the Government. The plaintiff has no right, title and interest in the suit land and, as such, the suit is liable to be dismissed.
4. The learned Assistant Judge, upon considering the pleadings of the parties framed the following issues for determination:-
(i) Whether the suit is maintainable in its present form?
(ii) Whether the suit is barred by limitation?
(iii) Whether the impugned gift No.2453 dated 30-6-2004 is liable be cancelled?
(iv) Whether the plaintiff is entitled to get a decree, as prayed for or any other reliefs?
5. At the trial plaintiff side examined as many as 3 witnesses and the defendant side examined 2 witnesses and both the parties also exhibited some documents including gift deed No.2453 dated 30-6-2004 and hand writing expert’s opinion.
6. The learned Assistant Judge upon hearing argument of the parties and on considering the materials on record by his judgment and decree dated 24-11-2009 decreed the suit in favour of the plaintiff. Against which the defendant Nos. 1-4 preferred Article Appeal No. 34 of 2010 in the Court of District Judge, Gazipur which was eventually, transmitted to the Court of Joint District Judge, 1st Court, Gazipur for disposal, who by the impugned judgment and decree dated 23-8-2010 affirmed the decision of the trial Court on the finding that the trial Court rightly on assigning sound reason doubted the execution of deed of gift dated 30-6-2004.
7. Being aggrieved thereby the present defendant-petitioner has come before this and obtained the present Rule.
8. Mr Khandker Aminul Haque, the learned Advocate appearing for .the defendant-appellant petitioner, Bimol Rosario submits that both the Courts below without applying its judicial mind into the facts and circumstance of the case and law bearing on the subject most illegally disbelieved the execution of the registered deed of gift dated 30-6-2004 (Exhibit A) and the same has occasioned failure of justice. He next upon placing Exhibit B, hand writing expert’s opinion submits that DW-2, hand writing expert upon applying modern technology found signatures of the plaintiff appearing in the deed of gift in question are not forged and hand writing expert as DW-2 in his deposition categorically stated that the deed of gift is genuine and he proved his investigation report along with films as “Exhibit B series” though, both the Courts below without assigning any sound reason rejected the report submitted by DW-2. Mr Khandker Aminul Haque, the learned Advocate while elaborating his submission referred to the decisions reported in 19 BLT 05 and 19 BLT 568 and submits that in this modern world science has been developing day by day and it is also need of the day to detect the truth by applying modern technology and it is apparent from the record that in this case the officer of the CID in order to detect the genuineness of thumb impression of the plaintiff-opposite party by applying modern technology has found that the thumb impressions on the alleged documents with the admitted thumb impressions of the plaintiff are in the hand of the plaintiff-opposite party and in that view of the matter both the Courts below ought to have believed the report of the hand writing expert and in not doing so committed an error of law resulting in an error in the impugned decision occasioning failure of justice.
9. Mr Moudud Ahmed, the learned Advocate appearing for the plaintiff-opposite party No.1, on the other hand, by filing counter affidavit contested the Rule. Mr Moudud Ahmed in the course of his argument upon placing the judgments of two Courts below submits that both the Courts below on perusing the deed in question (Exhibit 1) found there is overwriting, re-writing, wrong spelling in the signatures of the dollar and DW-2 in his cross-examination admitted that date of the impugned deed and the date in the thumb impression book is not the same and in that view of the matter both the Courts below rightly ignored the expert’s opinion. Mr Moudud Ahmed further points out that at the trial the defendants miserably failed to examine any witness to prove their so-called deed of gift which raised a serious question of doubt as to the genuineness of the deed of gift and in that view of the matter both the Courts below committed no wrong in cancelling the impugned gift deed No.2453 dated 30-6-2004 AD registered at Tongi Sub-registry office. Finally, Mr Moudud Ahmed contends that in the facts and circumstance of the case with regard to probability and improbability the learned Judge of the Court .of appeal below rightly held “that the plaintiff is a 45 years old lady, she has two minor children. It is quite unnatural that depriving that minor child their mother could gift her property to her nephews.”
10. Mr Moudud Ahmed’ in support of his submission has relied on the decisions reported in 37 DLR (AD) 205.45 DLR 279 and 19 DLR188.
11. I have heard the learned Advocates of both the sides at length and perused the Revision application, judgments of two Courts below, deposition of witnesses, exhibits and other materials on record.
12. Now, the real question for consideration in this case whether both the Courts below were justified in cancelling the deed of Heba (Exhibit A) upon disbelieving expert’s opinion ( Exhibit B series).
(To be continued)
13. As I have already noticed that the opposite party No.1 as plaintiff filed Title Suit No. 100 of 2009 in the Court of Assistant Judge, 3rd Court, Gazipur for cancellation of the gift deed No.2453 dated 30-6-2004 registered at Tongi Sub-registry office as described in the schedule of the plaint. It is found that the plaintiff-opposite party to prove his case examined 3 witnesses and the plaintiff herself was examined as PW-I, who in her deposition stated that:-
bvt Rwg‡Z Avwg †fvM `L‡jvKvKv‡j ¯^vgx gviv hvq| 1 cyÎ I Kb¨v †i‡L| 1/2 bs weev`x Avgv‡K e¨vs‡Ki †_‡K †jvb wb‡q †`‡e e‡j Rvbvq| †m Rwg‡Z wewìs K‡i evm Kivi Rb¨| GRb¨ wKQz UvKvmn Rwgi KvMRcÎ w`B| wKš’ †jvb †`q bvB| e‡j †h e¨v‡Ki ms‡M Pzw³ Kiv jvM‡e, ó¨v‡¤ú mB jvM‡e| Avwg 5wU ó¨v‡¤ú mB w`B| ó¨v¤ú I UvKv †dir PvB| 1/2 bs weev`x e‡j †h, UvKvI bvB, RwgI bvB| AvZ¥xq ¯^Rb‡K RvbvB| Zjøvkx w`‡q bvt Rvt `wj‡ji bKj DwV‡q weM` 4-9-2006Bs Zvs bvt Rvt `wj‡ji wel‡q Rvb‡Z cvwi| 2453 bs `vbcÎ `wjj 30-6-2004Bs Zvs Avwg KL‡bv †iwRóªx K‡i †`B bvB|
14. PW-2, Malati Rosario stated in her deposition that the plaintiff is her sister and the defendants are her nephews and her sister got the suit land by inheritance. This witness also stated that she came to know about the forged deed from the plaintiff. This witness in her cross-examination denied the suggestion that she deposed falsely as per instruction of her sister.
15. PW 3, Somor Rosario, who stated in his deposition that:-
Avwg ev`x weev`x bvt Rwg wPwb| ev`x Avgvi wcmx| weev`xiv PvPv‡Zv fvB| weev`xiv †jvb †`evi K_v e‡j bvt Rwgi `wjj K‡i †bq| bvt Rwg ev`x kvK mewR K‡i †fvM K‡ib|
16. Let me now advert to the evidence of defendant side. It appears that defendant No. I Bimol Rosario himself was examined as DW-I, who in his deposition stated that-
ev`xmn Avgvi Ab¨vb¨ dzdzM‡bi ms‡M Lye fvj m¤úK©, eow`b, Bóvi mvb‡W mn wewfbœ cvjv ïi cvV‡b Avgv‡`i evox‡Z Avm‡Zb| Avgiv Av`i Avc¨vqb KiZvg| ev`x D³iæ‡c Avgv‡`i cÖwZ mš’ó n‡q bvt m¤úwË `vb K‡i `Lj eywS‡q †`b|
17. DW 2, Md Shahidullah, who examined the thumb impressions of the plaintiff as hand writing expert and submitted a report. This witness proved his report along with films as “Exhibit B series”. This witness in his cross-examination also stated that
cÖwZ‡e`‡b wK cÖKv‡ii Qvc cixÿv K‡iwQ Zv D‡jøL Kwi bvB| Rvb‡Z Pvq bvB|Ó
18. It is found that the trial Court below on consideration of the evidence and materials on record came to a finding that “DW-2 admitted that date of the impugned deed and the date in thumb impression book is not the same even what type of impression has been examined is not mentioned in the report.” On perusal of the exhibits and the depositions of the DWs, contradicts found and, as such, the expert opinion is rejected, and, on this finding the learned Assistant Judge cancelled the deed in question (Exhibit-A) and decreed the suit. Further, it appears from the “Exhibit A, that the attesting witness of the impugned deed was not the member of the donee and donar’s family. DW-1 in his cross-examination admitted that:-
Òbvt `wj‡j Avgvi Ab¨ †Kvb wcmv‡Zv fvBmvÿx bvB|
bvt `wj‡ji mvÿx GKRb Avgvi cÖwZ‡ekx Aci Rb Avgvi k¦ïi|Ó
19, In this case it is found that the defendant Nos. l-2 did not or could not examine any attesting witness to prove the deed of gift (Exhibit A). It is also found that the appellate Court below on the facts of the case and on consideration of the evidence and materials on record arrived at a finding that the plaintiff is a 45 years old lady, she has two minor children. It is quite unnatural that depriving that minor child their mother could gift her property to her nephews.”
20. On a close perusal of the record, I find nothing on record to suggest that any of the witnesses corroborated the evidence of DW 1 on the point of possession of the defendant-petitioner in the suit land.
21. The proposition of law is by now well settled that the expert’s opinion is not a conclusive evidence which enables the court to come to a satisfactory conclusion, though the said opinion is not binding upon the Court. The Court itself can compare any signature or LTI of any concerned person under section 73 of the Evidence Act and come to a decision In accordance with law.
22. In this case the trial Court as well as the Court of appeal below considered the entire evidence on recaard and came to a concurrent finding that in the facts and circumstances of the case there was no reason on the part of the plaintiff opposite party to gift the suit land to her nephews depriving her minor child.
23. On assessment of the evidence on record together with the impugned deed of gift dated 30-6-2004 ( Exhibit A), I do not find any valid ground to differ with the view taken by the Courts below, Therefore, I am unable to accept the contentions mixed by the learned Advocate for the petitioner that both the Courts below without applying in Judicial mind into the facts and circumstance of the case most illegally rejected the expert’s opinion and decreed the suit.
24. The decisions cited by the learned Advocate for the petitioner are distinguishable on facts.
25. In view of my discussion made in the foregoing paragraphs it is by now clear that the instant Rule must fail.
26. In the result, the Rule is discharged without any order as to costs. The judgments of both the Courts below are hereby maintained.
Let a copy of this judgment along with the lower Courts record be sent down at once.
