IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 FAO.No. 197 of 2009() ------------------------------ AS.35/2008 of SUB COURT, PERUMBAVOOR OS.392/1998 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/RESPONDENTS/PLAINTIFFS ------------------------------------------------------------ 1. ELDHOSE, AGED 45 YEARS, S/O.VARKEY, KANIYAMKUDY HOUSE, VENGOLA KARA, VENGOLA VILLAGE, KUNNATHUNADU TALUK. 2. MINI ELDHOSE, AGED 38 YEARS, W/O.ELDHOSE, KANIYAMKUDY HOUSE, VENGOLA KARA, VENGOLA VILLAGE, KUNNATHUNADU TALUK. BY ADV. SMT.MARY BENJEMIN RESPONDENTS/APPELLANT/DEFENDANT ------------------------------------------------------------ THANKAPPAN, AGED ABOUT 61 YEARS, S/O.NARAYANAN, VAIKKARAKUDY HOUSE, CHAMBANNOORKARA, ANGAMALY VILLAGE, ALUVA TALUK. BY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... F.A.O.NO.197 OF 2009 ............................................. Dated this the 9th day of September, 2009 J U D G M E N T This is an appeal preferred against the judgment of the Subordinate Judge, Perumbavoor in A.S.No.35/2008. The suit is one for a declaration and for setting aside the document and the trial court granted a declaration to the effect that document No.5376/1995 is not binding upon the plaintiffs or on the plaint schedule property. It also granted an order of permanent prohibitory injunction. Against that an appeal was preferred as A.S.No.35/2008. The learned Subordinate Judge has set aside the judgment and decree of the lower court and has remanded back the case to the lower court for a fresh disposal after sending of the admitted finger print of Kalyani for comparison to a finger print expert with the disputed thump impression. It is against that decision, the present appeal is preferred. 2. I had gone through the judgment of both the courts below. The dispute is with respect to the execution of a document by the second defendant in favour of the first : 2 : F.A.O.NO.197 OF 2009 respondent with respect to 20 1/2 cents of property. That document is of the year 1995 and subsequent to that, in the year 1998 a document has been executed in favour of the plaintiffs. So, the crucial question that had arisen for consideration was whether the second defendant had executed the document in favour of the first defendant. Since there was a dispute with respect to the execution of the document itself and as the second defendant supported the case of the plaintiffs, the mater was referred to an expert for comparison. The said expert in stead of comparing the finger print by himself, delegated that power to another person who had filed a report and it was on the basis of that report and on examination of that person, the court arrived at a decision regarding the fact that the thump impression in the disputed document is not of Kalyani. A perusal of the judgment would reveal that there is some inconsistency with respect to the thump impression. At the out set when a case is refereed to a finger print expert or others and suppose if he is not conversant or well versed with the said comparison, his duty is only to inform that fact to the court and it is for the court thereafter to decide what shall be done. But here, strangely that person by : 3 : F.A.O.NO.197 OF 2009 himself delegated the work to another person and he did the comparison and had sent a report. I am in full agreement with the learned Subordinate Judge that the said procedure is totally irregular. When there is thump impression in a document, ordinarily it is considered to be the best form of scientific evidence for the reason that thump impression normally does not change. There are admitted thump impressions in previous documents and there is the disputed thump impression in the disputed document. It is better that the thumb impression again to be compared and a scientific precision is arrived at so that the party can be satisfied that things are done in a proper manner. What the learned Sub Judge has done is only to direct such comparison of thump impression by experts. I do not find that he has committed any mistake of law or a mistake of fact in setting aside the judgment in sending the matter back to the lower court for a fresh disposal. Therefore the appeal does not deserve consideration and it is dismissed. M.N.KRISHNAN, JUDGE. cl : 4 : F.A.O.NO.197 OF 2009 : 5 : F.A.O.NO.197 OF 2009