P L D 1966 Dacca 444 (PLP)

ABDULLA, J.‑This second appeal is by the plaintiff against a judgment of reversal. Plaintiff had brought a suit for a declaration of his title and confirmation of his possession on the finding that the defendants' Kabala and Patta dated 16‑1‑1949, did not affect his title or possession. Plaintiff's case was that the suit land was inherited by one Bibhuti. In the absence of Bibhuti defendant Nos. 1 and 2 induced Bibhuti's mother Hemaprava by criminal intimidation to execute two Kabalas dated 10‑7‑48 and 20‑5‑48, respectively in favour of defendant No. 1 and defendant Nos. 1 and 2 jointly. Plaintiff alleged that Hemaprava had no right to make these transfers and as such these transfers were mere paper transactions. On 17‑2‑49 Bibhuti, the rightful owner, executed a kabala in favour of the plaintiff with regard to the suit land and the kabala was registered on 14‑3‑49 and Bibhuti gave possession to the plaintiff in respect of the suit‑land and the plaintiff was in possession since then. Defendant Nos. 1 to 5, "who formed a party, being thus frustrated, created a kabala purported to have been executed by Bibhuti in favour of defendants Nos. 1 and 2 and also a patta with regard to some of the suit‑land in favour of defendant Nos. 2 to

5. Both the documents were purported to have been executed by Bibhuti on 16‑1‑1949. Bibhuti did not acknowledge execution for which the registration was refused and an appeal was filed by the defendants against the said refusal. In the meantime the defendants, of whom defendant No. 1 was a member of the Local Union Board, got Bibhuti and the plaintiff arrested in a murder case and as such Bibhuti could not appear to contest the registration appeal. The appeal was allowed by an ex parte order and the kabala and the Patta were registered on 13‑1‑1951. The plaintiff and Bibhuti were acquitted by the Court of Session on 22‑3‑

51. Bibhuti at once filed two suits, being other Class Suit Nos. 28 and 29 of 1951 for declaring the said Kabala and Patta as fraudulent. The suits were, however, ultimately dismissed because there was no prayer for recovery of possession. Plaintiff, who had been away in connection with his service, came to know of the dismissal of the said two suits on 8‑7‑

56. Thereafter the plaintiff filed the present suit. Defendants, on the other hand, pleaded that Mohim, father of Bibhuti, died indebted. Bibhuti, at the time of the death of his father, was in Burma. Hemaprava, therefore, executed the two kabalasin 1948 in order to pay off her deceased husband's debts. As such these were valid transactions. When Bibhuti returned from Burma he had created trouble on which defendants paying him more money took the kabala and the Patta dated 16‑1‑1949, which were genuine documents. But Bithuti being encouraged by the plaintiff refused registration and the kabalas were registered on appeal. Further case of the defendants was that Bibhuti on 25‑7‑56 by a registered ekrarnama acknowledged the documents of the defendants as genuine. Learned Munsif, who tried the suit, found on a careful analysis of the evidence that defendants' kabala and Patta Exhs. B (2) and C. bad not been executed by Bibhuti. Further the learned Munsif found that the defendants had not been able to lead any evidence as to their possession of the suit‑land. Learned Munsif then found that the plaintiff's kabala Exh. 2 (e) was genuine and the plaintiff had his title by the said kabala and as such the learned Munsif declared plaintiff's title to the suit‑land and confirmed his possession unaffected by the defendants' kabala and Patta dated 16‑1‑

49. The defendants preferred an appeal against the said judgment and decree passed in favour of the plaintiff. The learned Subordinate Judge found on a wrong view of the law that Hemaprava was at least competent to transfer eight annas share of the suit‑land and as such that share could not be decreed in favour of the plaintiff. With regard to the balance of 8 annas of the suit‑land, the learned Subordinate Judge first found that the plaintiff bad failed to prove his possession in the suit‑land and as such the defendants were to possession thereof. On an analysis of the evidence the learned Subordinate Judge accepted the evidence adduced on the side of the defendants and held that the said evidence proved the defence case. As such be allowed the appeal and dismissed the plaintiff's suit. Hence this second appeal by the plaintiff. The finding of the learned Subordinate Judge that Hemaprava had a right to demise 8 annas of the suit properties is leased on an erroneous interpretation of the law. If the provision of Hindu Woman's Right to Property Act, 1937 does not apply to the suit‑lands as found by the learned Subordinate Judge, himself then Hemaprava has no widow's estate in the properties during the life of Bibhuti, the son of Mahim, the original owner. The reason assigned by the learned Subordinate Judge for rejecting plaintiff's kabala Exh. 2 (e) was that it was not presented by the plaintiff for registration. Learned Subordinate Judge has held that on plaintiff's own admission Nur Sulaiman has presented it. The relevant evidence is to the following effect: "Again on the next Monday I again went to his home and found him ill at home. He was willing and advised me to have the registration done on commission. Then I asked Nur Sulaiman to apply for commission and to present the kabala. He so presented the kabala. Following Monday I went away to my office. Commission went to Bhibuti's home. He (Bibhuti) had signed before and gave once more before Regis trar. Head clerk was with the Sub‑Registrar and Nur Sulaiman rind I and Bibhuti. It is not that the document was neither executed by. Bibhuti nor registered nor that the registration was effected by false representation." Relevant portion of section 32 of the Registration Act reads as follows: "Persons to present documents for registration‑Except in the cases mentioned in sections 31, 88 and 89 every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,‑‑‑ "(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b)

(c)

" But this section explicitly excludes the exceptional circumstance referred to in section 31 of the said Act, which reads as follows: "Registration or acceptance for deposit at private residence.‑ In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorised to accept the same for registration or deposit: Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will." It is clear that in this case the registration was under section 31 of the Registration Act. Therefore, the presentation of the document for registration was done by Bibhuti himself at his residence when the Sub‑Registrar went to his residence on commission. The evidence quoted above clearly shows that the registration was done under the provisions of section 31 of the' Registration Act. Therefore, there was no basis for the learned Subordinate Judge for his finding that the registration of the document, Exh. 2(e), was not valid and, therefore, no title had passed, as title could pass only by a validly registered document. The learned Subordinate Judge also found that the contesting defendants did not assail plaintiff's deed Exh. 2(e) as a forged document. Learned Subordinate Judge found as follows: "Their main contention is that even if it is found to be a valid document, they will get the land. Their case is that the plaintiff's document and the document executed by Bibhuti in favour of the defendants are all genuine documents." So the plaintiff's document having been admitted to be a genuine document and the registration having been also found to be valid by us, the plaintiff will succeed, if he can show that his document prevails over the defendant's documents Exh. B(2) and C. It is also to be seen that the question of validity of registration for not complying with the provisions of section 32 of the Registration Act was not raised as an issue in the suit. We, therefore, think that it was not proper for the appellate Court to have taken upon itself the investigation on this point. The appellate Court could not decide a material question on a point which had not been canvassed in the trial Court. Such action deprives the aggrieved party of an opportunity to present his own case. We make this observation in order to remind the appellate Court of its jurisdiction. It would not have been necessary otherwise, as we have held already, that the compliance with the provision of section 32 of the Registration Act did not arise in this case as it was admittedly a registration effected under section 31 of the Act. Coming to a consideration of these documents, apart from all other considerations, we have compared ourselves the signatures of Bibbuti on these two documents with that of Bibhuti in the defendants' own document, Exh. A, the ekrarnama. The difference is so palpable that it is obvious that they are not in the hand of the same person. Comparing the signature of Bibhuti in the ekrarnama Exh. A with those of Bibhuti in the plaintiff's docu ment Exh. 2(e) the resemblance is obvious. The slight difference that may appear is perfectly in consonance with the number of years that have passed since the execution in 1949, of the plaintiff's document till the date of execution of the ekrarnama in 1956. But the formidable hurdle on the side of the defendants is that the thumb‑impressions on their document Exhs. B(2) and C do not tally with the thumb‑impressions of Bibhuti, as has been found in the other class Suits Nos. 28 and 29 of 1951. With the filing of the plaint a prayer was made by plaintiff for summon ing relevant documents from the records of those two cases and for keeping the same in safe custody. In the Expert's opinion in those cases, which has been made Exh. 1 in this case, the Expert is clearly of the opinion that the thumb‑impressions in the two documents marked 'X' and 'Y' against the name of Bibhuti Bhushan De are identical with each other but they do not tally with the specimen thumb‑impressions of Bibhuti Bhushan De on the paper Exh. B(1),dated 14‑6‑

52. The Finger Print Expert, who gave his opinion m Exh. 1, was examined as P. W. 1 in this case and nothing could be elicited in his cross‑examination to throw any doubt on the report. Mr. Farid Ahmed appearing on behalf of the defendants has argued that there is no proof that the specimen thumb‑impressions of Bibhuti, which were taken in presence of the Court during trial of other class Suit Nos. 28 and 29 of 1951, are genuine. This argument is based on an observa tion of the trial Court to the effect as follows: "There was something a little fishy about the taking of the specimen signatures of Bibhuti." It appears that two petitions were filed one on 19‑5‑52, and another on 11‑6‑52, for time to give the specimen signatures. No copy of either of the petitions were given to the other side. On 14‑6‑52, the adjourned date for it, the signatures purporting to be of Bibhuti were taken as specimen signatures. But this only relates to the question of specimen signatures. So far as the thumb impressions are concerned, there is nothing with regard to the specimen thumb‑impressions. The learned Subordinate Judge has quoted the observations of the learned Munsif and has held that the plaintiff has not been able to prove that the thumb‑impressions and specimen signatures of Bibhuti were taken in the presence of both the parties. Therefore, the learned Subordinate Judge came to the conclusion that the comparison was made by the expert not with the real thumb‑impressions and signatures but with fictitious ones. The learned Subordinate Judge has failed to take into consideration the fact that the specimen signatures as well as the thumb‑impressions bear a certificate of the Court that they were taken in the presence of the Curt. In such circumstances, the presumption of the correctness of an official act having been performed as it is recorded, is available to the plaintiff. For our own satisfaction we have compared the thumb‑impressions of Bibhuti on ekrarnama Exh. A with those alleged to be of Bibhuti in Exhs. B(2) and C. The thumb impressions are very clear and even without the aid of a magnify ing glass it is obvious that they are different. On the other hand, the thumb‑impression of Bibhuti Bhushan De on Exh. A tallies with that of Bibhuti Bhusan De on Exh..2(e) as well as the other documents executed '3y Bibhuti Exhs. 2(d) and

2. We are aware of the fact that a line of cases has laid down that the Court should not supplant the Expert. But when the impressions are clear and the special knowledge of an Expert is not necessary we do not see why the Court cannot make its own comparison. Section 45 of the Evidence Act reads as follows: "When the Court has to form an opinion upon a‑ point of foreign law, or of science or art, or as to identity of hand writing or finger, impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts." . A plain reading of the section will show that it is the Court which has to form the opinion. The opinion of an Expert is relevant but the duty of the Court is not thereby altogether abrogated. The Court in order to form its opinion may call upon the opinion of an Expert to aid the Court to tome to its conclusion. Therefore, in a case, where the impressions are clear and the similarity or dis‑similarity is obvious, we do not see why the Court cannot itself come to its own conclusion indepen dently of an opinion of the Expert. Mr. Farid Ahmad thereafter had argued that even if the thumb‑impressions were left out, there was no denial of the signa tures, but .we find., as a matter of fact, that the signatures were also denied and, as we have already held above, the signatures in the document of the defendants have got no manner of resem blance with the admitted signatures of Bibbuti Bhushan De in the defendants' own document, the ekrarnama Exh. A. In these circumstances, we hold that the learned Subordinate Judge had erred in law in reversing the judgment of the learned Munsif. We also agree with the finding of the learned Munsif regarding the possession of the plaintiff in the suit land. In the result, we allow the appeal and set aside the judgment and decree passed by the appellate Court below and affirm those passed by the trial Court. We make no order as to costs. MURSHED, C. J.‑I agree. S. A. H. Appeal allowed.