IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 OP(C).No. 1794 of 2011(O) ----------------------------------- OS.37/2007 of III ADDL.SUB COURT, ERNAKULAM .................... PETITIONER ------------------- KOCHU THRESSIA, AGED 58, W/O.ANTONY, KATTUMPURAM HOUSE, PUTHUVYPE, PUTHUVYPE VILLAGE, KOCHI TALUK, PIN-682508. BY ADV. SRI.ABRAHAM P.GEORGE SMT.M.SANTHY RESPONDENT(S): ------------------------- 1. GRACEY, AGED 51, W/O.LATE JOHN, MUDUVATHIL, THAMMANAM P.O., POONITHURA VILLAGE, KANAYANNUR TALUK, PIN-682032. 2. JIJO, AGED 30, S/O.LATE JOHN, MUDUVATHIL, THAMMANAM P.O., POONITHURA VILLAGE, KANAYANNUR TALUK, PIN-682032. 3. JISHO, AGED 28, S/O.LATE JOHN, MUDUVATHIL, THAMMANAM P.O., POONITHURA VILLAGE, KANAYANNUR TALUK, PIN-682032. 4. ELSY, AGED 69, W/O.ALEXANDER, MUDUVATHIL HOUSE, NEAR KINAR BUS STOP, KANNANKULANGARA, THEKKUMBHAGAM VILLAGE, KANAYANNUR TALUK, PIN-682301. OP(C) NO.1794/2011 5. GEORGE, AGED 68, S/O.VARKEY, MUDUVATHIL HOUSE, PALLINADA, PIPELINE ROAD, PALARIVATTOM, POONITHURA VILLAGE, KANAYANNUR TALUK, PIN-682025. 6. MARIYAMMA, AGED 67, W/O.DEVASSY, KUMBLARA, MARADU P.O., KUMDANNUR, KANAYANNUR TALUK, PIN-682304. 7. JOSE, AGED 64, S/O.VARKEY, MUDUVATHIL HOUSE, CHOONDY, ETTEKKAR CHURCH, EDATHALA VILLAGE, ALUVA TALUK, PIN-683561. 8. FRANCIS GEORGE, AGED 38, S/O.GEORGE, VATTAPPILY HOUSE, 13/27, M.G.MARG, CIVIL LINE, ALLAHABAD U.P., PIN-210001. 9. CICILY GEORGE, AGED 43, D/O.GEORGE, VATTAPPILLY HOUSE, 13/27, M.G.MARG, CIVIL LINE, ALLAHABAD, U.P., PIN-210001. 10. LILLY RAJU COLLIL, AGED 35, W/O.RAJU COLLIS, PAPPAMAUV, HANUMAN GUNJ, ALLAHABAD, U.P., PIN-221505. 11. JAMES GEORGE, AGED 31, S/O.GEORGE, VATTAPPILLY HOUSE, 13/27, M.G.MARG, CIVIL LANE, ALLAHABAD, U.P., PIN-210001. R2 BY ADVS. SRI.P.A.AUGUSTIAN, SRI.V.K.SATHYANATHAN, SRI.T.R.JAGADEESH, SRI.M.A.BABY. R1 & R3 BY ADVS. SRI.S.ANANTHAKRISHNAN, SRI.N.K.SUBRAMANIAN . THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.1794/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE IA. 4833/2007 IN OS.37/2007 IN THE FILE OF THE SUB COURT, ERNAKULAM. P2:- COPY OF THE IA. 7034/2008 IN OS. 37/2007 IN THE FILE OF THE 3RD ADDL. SUB COURT, ERNAKULAM. P3:- COPY OF THE FORENSIC LAB REPORT NO.C8-73/2009 DT.D 15.6.2010. P4:- COPY OF THE IA.2899/2011 IN OS. 37/2007 IN THE FILE OF THE 3RD ADDL. SUB COURT, ERNAKULAM PRAYING TO REMIT BACK EXT.P3. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1794 of 2011 --------------------------------------- Dated this 17th day of October, 2011 JUDGMENT Petitioner is the 5th plaintiff in O.S.No.37 of 2007 of the Court of learned Third Additional Sub Judge, Ernakulam. He, along with other plaintiffs sued for partition of the suit property. Respondents 1 to 3/defendants contended that petitioner, other plaintiffs and predecessor-in-interest of respondents 1 to 3/defendants had executed a partition deed No.4753 of 1987 as per which the suit property was divided. Pursuant to that partition deed petitioner and other plaintiffs had also executed a sale deed the same day concerning the property allotted to them as per the partition deed. During the pendency of the suit petitioner and other plaintiffs filed Ext.P1, application to sent the disputed partition deed to the expert for comparison of the signatures and thumb impressions (allegedly) of petitioner and other plaintiffs. That application was allowed. The expert gave Ext.P3, report identifying signature of the 4th plaintiff in the disputed partition deed but, reporting that with respect to the disputed signatures of other plaintiffs he was not able to give definite opinion for want of sufficient signatures of the relevant O.P(C).No.1794 of 2011 -: 2 :- period. Petitioner and other plaintiffs filed Ext.P4, application to get the thumb impressions (allegedly) of the petitioner and other plaintiffs in the disputed document examined by the expert since in Ext.P3, report there was no reference to the disputed thumb impressions of petitioner and other plaintiffs in the document. That application was dismissed by the learned Sub Judge by Ext.P5, order observing that the Court can on the basis of oral evidence determine the matter and if necessary it is open to the Court to seek the assistance of the expert. Hence learned Sub Judge directed that final order on Ext.P4, application will be passed after examining the parties. That order is under challenge. 2. Learned counsel for petitioner/5th plaintiff contends that none of the plaintiffs had signed or affixed their thumb impression in partition deed No.4753 of 1987. It is also submitted by the learned counsel that in Ext.P1, application the request was to ascertain authenticity of thumb impressions and signatures in the partition deed but in Ext.P3, report the expert has not made any reference to the disputed thumb impressions. In the circumstance, it was necessary, before trial was over, that a report is obtained on the disputed thumb impressions as well. O.P(C).No.1794 of 2011 -: 3 :- 3. Learned counsel for respondents 1 to 3 submits that the trial of the case is already over and that petitioner filed this original petition and obtained a stay when the case was posted for hearing. According to the learned counsel, the very fact that petitioner and other plaintiffs had on the very same day the impugned partition deed was executed have executed a sale deed in accordance with the allotment in the disputed partition deed would indicate that they are parties to the partition deed. 4. Fact remained that in the order on Ext.P1, application learned Sub Judge had directed the expert to give his opinion as to the authenticity of thumb impressions and signatures in the disputed partition deed. Admittedly, the expert has not given any opinion on the thumb impressions in the disputed document. In that view of the matter, it is appropriate that learned Sub Judge obtained a report on the thumb impressions as well. In the circumstance, I am inclined to interfere with Ext.P5, order. Resultantly this original petition is allowed. Ext.P5, order is set aside. Ext.P4, application is allowed. Learned Sub Judge shall sent the disputed document to the expert to ascertain authenticity of the disputed thumb impressions as well, obtain a report and dispose of the suit as provided under the law. O.P(C).No.1794 of 2011 -: 4 :- Learned Sub Judge shall issue necessary direction to the expert to submit report regarding the thumb impressions as early as possible since trial of the suit is over, and dispose of the suit as early as possible. (THOMAS P JOSEPH, JUDGE) Sbna/-