HI$H COURT OF CHHATTISGARH AT BILASPUR S‘B. HON’BLE SHRI DHIRENDRA MISHRA, J Writ Petition (A1122?) N0. 2536 of 2010 Present: Shri Pakash Tiwari, counsei for the petitioner. Shri Arun Sao, Govt. Advocate for the State/respondent No.3. ORAL ORDER (22"3 June, 2010) Heard on iAs No.02 & 03, applications for taking additional document & affidavit on record. Not opposed. The applications are allowed and documents are taken on record. Heard on admission. in a suit for partition, separate possession and perpetuat injunction against the respondents. the petitioner tiled an application under Section 45 of the Evidence Act and prayed for age determination of the typed text and Signature of the testator Anandram tn the Will filed by the respondents/defendants. By the above Wilt, Anandram ~— father of the petitioner and defendant Krishna Kumar — had bequeathed his agricuiturai [and to defendant Krishna Kumar on 14.1.1991. By the impugned order, leamed Civii Judge rejected. the above application with an observation that the petitioner in his statement on oath has exhibited the signature of Anandram as his own signature and in his affidavit, though he has claimed that the Will is forged, but has not specifically pleaded as to on what basis it is forged. Since the evidence of plaintiff's witnesses have been ciosed and the matter is fixed for cross-examination of defendants’ witnesses, the plaintiff can establish the above fact by cross-examining the defendants’ witnesses. Ffl’f/ //' Petitioner :~ Shyam Lai, 8/0 Late ShriVAnandram Ahir, Aged Applicant/plaintiff about 6O years, Resident of Viliage Nayapara, Baloda Bazar, District Raipur (CG) presently address —- Shanti Vihar, Danganiya, Raipur (CG) Versus Respondent 1. Krishna Kumar S/o Late Anandram Ahir, aged about Non—Applicant 46 years, Resident of Vmage Nayapara, Baroda N01 V Bazar, District Raipur (CG) Non-Appricant 2. Smt. UrmHa W/e Hori'ral Yadav: aged about 54 years No.2 Resident Of Near Engineering College, Kotal Raipur (Chhattisgarh) Non-Appiicant 3 The State of Chhattisgarh Through : Coiiectors Raipur No.3 (CG) ' Shri Prakash Tiwari! Iearned counsei for the petitioner submits that even though the defendants did net have any abjection to the prayer of the petitioner, as is evident from the impugned order, learned trial Court has iliegaiiy rejected his application. Referring to affidavit of the petitioner, it is argued that the petitioner has stated on oath that his father did not execute Wiii either in favour of Krishna Kumar or any other person, and the Wiii is forged and therefore, in View of the above fact, the trial Court ought to have accepted the prayer of the petitioner as no prejudice would have been caused to any of the parties. He further submits that the trial Court has wrongly observed that the plaintiff himself has admitted the signature in the Will, which is, on the face of it, wrong as plaintiff has not admitted the signature of Anandram to be his own signature in his deposition. Heard learned counsel for the petitioner and perused the impugned .order. From the contents of the application under Section 45 of the Evidence Act, it is evident that the petitioner has not alieged that in the said Will, signature of Anandram is forged. He has only prayed for age determination of the typed text and signature of Anandram by handwriting ’expert. However, no ground has been shown in the application for directing for test as prayed. The application has been filed at the stage when the plaintiff’s evidence has been closed and the matter is listed for cross—examination of defendants’ witnesses. The onus of proving the Will is on the defendants. In these circumstances, l am of the opinion that learned Civil Judge has not committed any illegality, infirmity or jurisdictional error resulting in manifest injustice to the petitioner warranting interference in supervisory jurisdiction under Article 227 of the Constitution. So far as contention of the petitioner that the trial Court has already observed in the impugned order that in the Will of Ex.D/1, the plaintiff has himself admitted the signature from ‘A' to ‘A’ is concerned, the same is misconceived and it is observed that learned trial Court shalt consider and decide genuineness of the Will filed by the respondents/defendants on the basis of evidence adduced by the respective parties in this regard without being influenced by any adverse obsen/ation in the impugned order. The petition is, accordingly, disposed of./ Sdl- Dhirendra Misma H Judge 1.