HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 10243 of 2022
Arthur Vivian Singh Since Deceased and 2 others …..Petitioner(s)
Versus
Joy Premala Das and 2 others
…..Respondent(s)
Counsel for Petitioner(s) : Shiv Om Vikram Singh Chauhan Counsel for Respondent(s) : Sumati Rani Gupta
Court No. - 5 HON'BLE MANISH KUMAR NIGAM, J.
1. Heard learned counsel for the parties and perused the record.
2. This petition has been filed challenging the order dated 16.03.2021 passed by Judge Small Causes Court/ Civil Judge (Senior Division), Allahabad in Suit No. 1134 of 2007 (Arthur Vivian Singh v. Joy Premala Das and others) by which application (Paper No. 158) filed by the plaintiff was rejected. The petitioners preferred a revision against the order dated 16.03.2021 and the same has been dismissed by order dated 11.10.2022 by A.D.J., Room No. 21, Allahabad in Revision No. 31 of 2021.
3. Brief facts of the case are that the one Arthur Vivian Singh (predecessor in interest of the present petitioners) instituted Original Suit No. 1134 of 2007 against Sjmt. Joy Premala Das (widow of Late Nirmal Kumar Das), Jaya Das (daughter of Late Nirmal Kumar Das) and Dr. Antim Das (son of Late Nirmal Kumar Das) for the relief of permanent injunction restraining the defendants in the suit (present respondents) from raising any
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construction over the suit property and changing the nature of eastern portion of House No. 91 (Present No. 217), Myorabad, Allahabad, fully described at the end of the plaint and marked by letter ABCD (hereinafter referred to as 'the property in dispute'). The plaintiff in O.S. No. 1134 of 2007 also prayed for mandatory injunction directing the defendants in the suit to deliver vacant possession of the property in dispute to the plaintiff and also claimed Rs. 3,000/- per month for damages of house premises from the date of filing of the suit till the date of actual delivery of possession. Case set up by the plaintiff in Original Suit No. 1134 of 2007 was that property in dispute was purchased by the plaintiff vide sale deed dated 14.05.1979 and since then the plaintiff became owner of the property in dispute. Prior to purchase, the plaintiff was residing in the aforesaid house along with his father as tenant. Father of the plaintiff died on 29.12.1976 and the plaintiff continued to be tenant after his death and after purchase vide sale deed dated 14.05.1979 became owner of the property in dispute. It was further the case of the plaintiff that the plaintiff was teaching in Boys High School, Allahabad and was asked to reside in the college premises by the management of the college and therefore, the plaintiff shifted to the staff quarters in the school campus. After shifting to the staff quarters, the plaintiff requested defendant no. 1 (now dead and represented by
defendant/respondent no. 2 & 3) who was the real sister of the plaintiff to look after the property in dispute as care taker on behalf of plaintiff. Later the management of school asked the plaintiff to vacate the staff quarter as the plaintiff was having his own house in the city in the year 1999. When the plaintiff tried to shift to his own house, the defendants in the suit having malafide intention, filed Original Suit No. 1357 of 1999 claiming themselves to be tenant of the property in dispute since January, 1977. However, the said suit was dismissed in default on 21.04.2006. On the request of his sister (i.e. deceased defendant
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no. 1 Joy Premala Das), the plaintiff allowed her to live up to July, 2007 but even after July, 2007, when she failed to vacate the property in dispute, the plaintiff asked her to vacate and determined her license to live in the said house as the defendants failed to vacate the house in dispute. Original Suit No. 1134 of 2007 was filed for the relief as mentioned above. During pendency of the suit, original plaintiff Arthur Vivian Singh died and was substituted by the present petitioners who are the natural legal heirs of the original plaintiff.
4. Case as set up by the petitioners in the writ petition is that the defendants in the suit in order to frustrate his claim, got filed Original Suit No. 78 of 2009 against the plaintiff in Original Suit No. 1134 of 2007 i.e. Arthur Vivian Singh for cancellation of sale deed dated 14.05.1979 by the vendor of the plaintiff namely Frank Prem Kumar Chattree. In original Suit No. 78 of 2009, Frank Prem Kumar Chattree vendor of the plaintiff denied the execution of the sale deed dated 14.05.1979 in favour of the plaintiff. Since Frank Prem Kumar Chattree vendor of the plaintiff denied the execution of the sale deed 14.05.1979, an application was filed on 24.10.2009 being paper no. 27Ga for comparison of signatures of Frank Prem Kumar Chattree and for opinion of hand writing expert on the signatures of Frank Prem Kumar Chattree over the registered sale deed dated 14.05.1979, on Register No. 8 maintained by Sub Registrar Chail Allahabad with the specimen signatures and thumb impression of the plaintiff. The said application was allowed by the trial court by order dated 26.05.2010 and the plaintiff was directed to get the same done. On 28.05.2010, two days after the application was allowed, the petitioners moved another application (Paper No. 36C) with the prayer that the plaintiff in Original Suit No. 78 of 2009 be directed to appear in person before the court on 31.05.2010 with a further prayer that file of SCC Suit No. 74 of 1977, decided on
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29.09.1978 by Judge Small Causes Court, Allahabad be summoned from the record room of civil court, Register No. 8 from the office of Sub Registrar, Allahabad be also summoned on 31.05.2010 so that recognized hand writing expert Hari Prasad Khare may take photographs of the plaintiff's signature/thumb impression. The said application could not be decided and an objection was filed by the plaintiff in Original Suit No. 78 of 2009 on 18.08.2010 mentioning therein that since the plaintiff has not taken steps as directed by the court by order dated 26.05.2010, therefore, there is no occasion for the plaintiff to appear on 31.5.2010 or any future date. An objection was also taken by the plaintiff that there is no requirement of summoning the record of O.S. No. 74 of 1977 from the record room. During pendency of the application paper no. 36Ga original plaintiff Frank Prem Kumar Chattree died on 2.11.2010. Since the original plaintiff died, present petitioners filed an application (Paper No. 158C) for summoning the record of O.S. No. 74 of 1977 so that admitted signatures of the plaintiff in that suit may be compared with the signatures on the sale deed dated 14.05.1979 as well as on the registered agreement to sale dated 17.03.1978. Against the said application, objections were filed by the defendants denying the averments made in the application. The application (Paper No.
158 C) was rejected by the trial court by order dated 16.03.2021. Against the order dated 16.03.2021, the petitioners preferred a revision and the same has been dismissed on 11.10.2022. Both these orders are impugned in the writ petition.
5. It has been contended by learned counsel for the petitioners that the courts below have rejected the application filed by the petitioners for comparing the signatures on the sale deed with the signatures of plaintiff over the plaint of SCC Suit No. 74 of 1977 only on the ground that there are no admitted signatures of the plaintiff in O.S. No. 78 of 2009 and therefore, the said application cannot be allowed. It has been submitted by learned counsel for
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the petitioners that the plaintiff of O.S. No. 78 of 2009 has admitted the filing of SCC Suit No. 74 of 1977 in paragraph no. 4 of the plaint itself, therefore, the courts below have erroneously held that there are no admitted signatures of the plaintiff in O.S. No. 78 of 2009 on record. It has also been submitted by learned counsel for the petitioners that since during pendency of the application (Paper No. 36C), original plaintiff in O.S. No. 78 of 2009 died therefore, the said application became non est and the petitioners thereafter filed the present application (Paper No.
158C).
6. Per contra, learned counsel for the respondents submitted that initially the plaintiff (predecessor in interest of the present petitioners) filed an application for comparing the signatures of the original plaintiff in O.S. No. 78 of 2009 which was allowed on 26.05.2010 but instead of taking steps, the petitioners moved another application on 28.05.2010 for summoning of the record of the SCC Suit No. 74 of 1977 and he himself can be blamed for not getting the specimen signatures of the original plaintiff who was alive at that time. Further it has been submitted by learned counsel for the respondents that it has been rightly held by the court below that there are no admitted signatures by the plaintiff in O.S. No. 78 of 2009 and therefore, the application could not be allowed. The signatures of the plaintiff in SCC Suit No. 74 of 1977, were denied by the present respondents and therefore the signatures cannot be said to be admitted one.
7. Replying to the submission of learned counsel for the respondents, learned counsel for the petitioners submitted that though on 26.05.2010, an order was passed allowing the application filed by the predecessor in interest of the petitioners for getting the signatures compared but on 28.05.2010, the plaintiff i.e. predecessor in interest of the petitioners requested the court to summon the original plaintiff on 31.05.2010 for specimen
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signatures and has also prayed for summoning of record of SCC Suit No. 74 of 1977 which was admitted by the plaintiff in paragraph no. 4 of the plaint and also the record of the office of Sub-Registrar, Allahabad. The said application could not be decided and the same was objected by the original plaintiff who never appeared before the court in person and ultimately died which necessitated for filing of the present application which has been rejected by the order impugned.
8. Learned counsel for the petitioners referred to the objection filed by original plaintiff to the application (Paper No. 36Ga) by which predecessor in interest of the petitioners requested for summoning the record of SCC Suit No. 74 of 1977 and submitted that there was no denial by the original plaintiff that the plaint of SCC Suit No. 74 does not bear his signature rather the only stand taken by the plaintiff was that it was not necessary to get his signatures compared with the signatures of the sale deed. Learned counsel for the petitioners also referred to paragraph no. 4 of the plaint of O.S. No. 78 of 2009 wherein it has been stated by the plaintiff himself that he has filed the O.S. No. 74 of 1977 and has also filed certified copy of the plaint along with plaint. Relevant portion of paragraph no. 4 is quoted as under:
9. वादी ने परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई ने परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई परे परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोईशान होकर प्रतिवादी ने परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई उनके परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई भाई अल्फ्रेड जान सिंह व बहनोई अल्फ्रे परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई ड जान सिंह व बहनोई जान सिं ह व बहनोई अल्फ्रेड जान सिंह व बहनोई एन के परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई दा के परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई विवरुद्ध बेदखली का वाद संख्या बे परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोईदखली ने परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई का वाद ंख्या 74 न 1977 फ्रैं क प्रे परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोईम कुमार चैट्र ी ने परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई बनाम अल्फ्रे परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई ड जान सिंह व बहनोई जॉन सिं ह आविद लघुवाद न्यायाधी ने परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोईश इलाहाबाद
की न्यायालय में वाद दाखिल किया था। वाद पत्र की प्रमाणित प्रतिलिपि की न्यायालय में वाद दाखिल किया था। वाद पत्र की प्रमाणित प्रतिलिपि की वाद दाखिखल विकया था। वाद पत्र की प्रमाणित प्रतिलिपि की वाद पत्र की प्रमाणित प्रतिलिपि की की न्यायालय में वाद दाखिल किया था। वाद पत्र की प्रमाणित प्रतिलिपि की प्रमाणि8 प्रतिखिलविप की न्यायालय में वाद दाखिल किया था। वाद पत्र की प्रमाणित प्रतिलिपि की छायाप्रति वादपत्र की प्रमाणित प्रतिलिपि की के परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई ाथ ंलग्न शपथ पत्र के साथ बतौर अनुलग्नक संख्या शपथ पत्र की प्रमाणित प्रतिलिपि की के परेशान होकर प्रतिवादी उनके भाई अल्फ्रेड जान सिंह व बहनोई ाथ बौर अनुलग्न शपथ पत्र के साथ बतौर अनुलग्नक संख्याक खं्या
-1 ंलग्न शपथ पत्र के साथ बतौर अनुलग्नक संख्या विकया जा रहा ह।ै वाद पत्र की प्रमाणित प्रतिलिपि की"
10.Learned counsel for the petitioners further referred to the
objection taken by the present respondents and representatives in
interest of the original plaintiff in O.S. No. 78 of 2009 wherein
they have admitted filing of suit no. 74 of 1977 and has not denied
the signatures of plaintiff in the aforesaid suit. The said objection
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are at page no. 15 of the supplementary affidavit. It has also been submitted by learned counsel for the petitioners that at a very later stage, the objection has been taken by the successor in interest of the original plaintiff that the signature on the plaint and vakalatnama of Suit No. 74 of 1977 were not of the plaintiff but was of his brother. Since there was no denial on the part of the original plaintiff regarding filing of Suit No. 74 of 1977 and his signatures on the suit, the successor in interest cannot be permitted to take such stand.
11.So far as the objection raised by learned counsel for the respondents and pressed by learned counsel for the respondents that the predecessor in interest of the petitioners failed to take steps in pursuance of order dated 26.05.2010 by which his application for getting the signatures compared was allowed by the court, now he cannot be permitted to move a fresh application for the same purpose. It has been submitted by learned counsel for the petitioners that after the order dated 26.05.2010, the predecessor in interest of the petitioners filed an application within two days thereafter i.e. on 28.5.2010 for summoning the plaintiff on 31.05.2010 and for also summoning the records of SCC Suit No. 74 of 1977 but the said application remained pending and the plaintiff in the suit never appeared rather he filed objection in August, 2010 on the ground that since the predecessor in interest of the petitioners have not taken steps in pursuance of order passed on 26.05.2010 allowing the application, there was no necessity of plaintiff being present on 31.05.2010 or any subsequent date and the original plaintiff also resisted the summoning of record of SCC Suit No. 74 of 1977 being not relevant for the purpose. Learned counsel for the petitioners further submitted that within two days of order dated 26.05.2010, the predecessor in interest of the writ petitioners moved an application for summoning the plaintiff for specimen signatures which was never complied with. Nothing more could have been
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done by the predecessor in interest of the petitioners to comply with the order dated 26.05.2010 as he has requested the court to summon the original plaintiff to get his specimen signatures. Since the application dated 28.5.2010 could not be decided during the lifetime of the original plaintiff who died on 02.11.2010, therefore, the present application was filed by the petitioners. 12.Considering the rival submissions as well as from perusing the records, I am of the opinion that the original plaintiff in O.S.No. 78 of 2009 has denied the execution of the sale deed allegedly executed in favour of the predecessor in interest of the present petitioners in the year 1979 and there is nothing wrong in getting the signatures compared. In paragraph no. 4 of the plaint of O.S. No. 78 of 2009, the original plaintiff has admitted the filing of Suit No. 74 of 1977 and has never denied his signatures over the said suit which has been denied by his predecessor in interest at a very later stage claiming that the said suit was not signed by the original plaintiff but by his brother. Initially, the present respondents have also not taken a stand that the suit No. 74 of 1977 does not bear the signatures of original plaintiff which is evident from the affidavit filed by them which is at page no. 15 of the supplementary affidavit. At a very late stage, an objection was taken by the respondents much after the death of original plaintiff that signatures on the plaint of the suit No. 74 of 1977 were not of the plaintiff but of his brother, appears to be an afterthought. Since the original plaintiff has not denied the signatures and has admitted the filing of said suit coupled with the fact that he has also filed copy of the plaint along with present plaint as an evidence. I am of the considered opinion that the courts below have erroneously held only on the basis of subsequent denial by the predecessors in interest of the original plaintiff regarding signature of the original plaintiff on original suit No. 74 of 1977 that there are no admitted signatures of original plaintiff. In my view, since the filing of original Suit No. 74 of 1977 was never
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denied by the original plaintiff rather admitted by him by referring the same in paragraph no. 4 of the same and also by filing plaint of the said suit it cannot be said that there are no admitted signatures of the original plaintiff in O.S. No. 78 of 2009. 13.The court below have erred in law rejecting the application filed by the plaintiff for comparison of the signatures, therefore, the order dated 16.03.2021 passed by Judge Small Causes Court/ Civil Judge (Senior Division), Allahabad in Suit No. 1134 of 2007 as well as order dated 11.10.2022 passed by A.D.J., Room No. 21, Allahabad in Revision No. 31 of 2021, are hereby set-aside. 14.Since the suit is pending since 2009, in exercise of my powers conferred under Article 227 Constitution of India, instead of remanding the matter before the trial court to decide afresh, I am allowing the application filed by the petitioners and the trial court is directed to get the signatures of the original plaintiff Frank Prem Kumar Chattree be compared with the signatures of Frank Prem Kumar Chattree over the sale deed with the plaint and vakalatnama of Suit No. 74 of 1977 within four months from the date of production of a certified copy of this order. 15.Since this Court has summoned the original record of Suit No. 74 of 1977 by order dated 1.05.2023, office is directed to return the same to the trial court within two weeks from the date of order so that necessary exercise be done by the trial court. 16.With the aforesaid directions, this petition stands allowed. 17.No order as to costs.
(Manish Kumar Nigam,J.) February 26, 2026
Ved Prakash