The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 135 of 2012 From the judgment dated 17.02.2012 passed by learned District Judge, Khurda in R.F.A. No.22 of 2005 confirming the judgment dated 27.01.2005 passed by Civil Judge (Sr.Divn.), Bhubaneswar in T.S. No.168 of 1995-I. --------------- Harshamani Bhutia & others ...… Appellants -Versus- Hullash @ Ullashmani Rath & others ..…. Respondents Advocate(s) appeared in this case:- _______________________________________________________ For Appellants : : M/s.S.P.Mishra, Sr. Advocate & Mr. B.Mohanty,S.K.Sahoo, B.S.Panigrahi & I.S.Mishra, Advocates For Respondents : : M/s. D.P.Mohanty, R.K.Nayak, T.K.Mohanty, P.K.Swain & M.Pal, Advocates _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 15.07.2025 Page 1 of 31 SASHIKANTA MISHRA, J. This is a plaintiff’s appeal against a confirming judgment. The suit filed by him for declaration of title, confirmation of possession and permanent injunction was dismissed by the trial Court and confirmed by the First Appellate Court. 2. For convenience, the parties are referred to as per their respective status before the trial court. 3. The plaintiff’s case, briefly stated, is as follows:- The suit land originally belonged to one Jogi Nanda, who died leaving behind three sons, namely, Madhu @ Madhusudan, Madhab and Gobinda. Madhu died issueless, Gobinda died without any issue in 1947 and his wife, Radha died in 1955. As such, the suit property came to be exclusively possessed by Madhab. He sold the suit land for legal necessity to the plaintiff, vide R.S.D. No.7464 dated 08.12.1961 and delivered possession. The plaintiff mutated the property in his name in Mutation Case No.5167 of 1989 but said order was reversed in the Court of Appeal as well as Revision. He having approached this Court in O.J.C. No.7045 of 1993, this Court directed Page 2 of 31 that the suit land be recorded in the names of the plaintiff and defendant no.1 subject to their respective rights being decided by any competent forum on the point whether Madhab had any exclusive right to sell the suit land to the plaintiff to the exclusion of defendant no.1. Hence, the suit. 4. Defendant no.1 contested the suit by filing written statement claiming to be the daughter of Gobinda and Radha Dibya. According to her, Madhab had no exclusive interest or right over the property, and therefore, was not competent to sell away the entire suit property to
Facts
the plaintiff. According to defendant no.1, Gobinda never died in 1947 nor his wife Radha in 1955 rather Radha died in 1971. In 1962 settlement, the authorities published the R.O.R. of the suit property jointly in the names of Madhab and Radha. She, being the sole successor of Gobinda and Radha has half share of the suit property, which was acknowledged by the Revenue Authorities in Mutation Appeal and Revision and also by this Court in O.J.C. No.7045 of 1993. She also took the Page 3 of 31 plea of maintainability of the suit on the ground of non- joinder of the parties of late Madhab. 5. Defendant no.2 filed written statement entirely supporting the case of the plaintiff. He being the son of Madhab, vendor of the plaintiff, stated that the suit land was sold away by his father for legal necessity. Additionally he took the specific plea that defendant no.1 is not the daughter of Gobinda and Radha but of Anand Rath and Ashamani Rath of village-Bageswarpur. As such, she is a stranger to the Nanda family of Ghatikia. 6. Basing on the rival pleadings, the trial Court framed the following issues for determination :- “1) Is the suit maintainable in the eye of law ? 2) Has the plaintiff any cause of action to bring the suit ? 3) Is the suit bad for non-joinder of necessary parties ? 4) Is the plaintiff entitled for declaration of his right, title and interest over the suit land ? 5) Is the plaintiff entitled for a decree of confirmation of possession ? 6) Is the plaintiff entitled for a decree of injunction against defendant permanent no.1 as prayed for ? 7) To what other relief if any the plaintiff is entitled ?” Page 4 of 31 7. Be it noted that the suit, after being heard was dismissed on contest by the trial Court by judgment dated 31.07.2002. The plaintiff preferred First Appeal being R.F.A. No.28 of 2002, which was allowed by judgment dated 13.02.2003 remanding the suit to the trial Court for decision afresh after framing a specific issue to decide the question whether defendant no.1 is the daughter of Gobinda and Radha. Thereafter, the trial Court dismissed the suit vide judgment dated 27.01.2005 holding that defendant no.1 is the daughter of Gobinda and Radha. The plaintiff again filed First Appeal being R.F.A. No.22 of 2005. 8. After remand, the trial Court had framed an additional issue being issue no.8, which is re-produced below :- “Whether the respondent no.1 is the daughter of Gobinda Nanda through Radha Dibya of Ghatikia ? or Whether she is the daughter of Ananda Rath through Ashamani Rath of Bageswarpur ?” 9. After extensively analyzing the oral and documentary evidence on record, the trial Court answered Page 5 of 31 issue no.8 against the plaintiff by holding that defendant no.1 is the daughter of Gobinda and Radha. On issue no.4, it was held that as per 1962 settlement R.O.R., the mother of defendant no.1, late Radha had 50% share, which was succeeded by her. As such, the plaintiff and defendant no.1 have joint right, title and interest over the suit land. On issue no.5, relying on the principle that possession follows title, the trial Court held that both plaintiff as well as defendant no.1 have joint possession having equal interest. Issue no.6 was answered against the plaintiff. On issue no.3, the trial Court held that non- joinder of the sisters of defendant no.1 as parties to the suit render it non-maintainable. On such findings, the remaining issues were answered accordingly and the suit was dismissed. 10. Being aggrieved, the plaintiff carried the matter in First Appeal being R.F.A. No. 22 of 2005. In course of hearing, the First Appellate Court by order dated 02.01.2006 directed the trial Court to examine the signature of defendant no.1 by Handwriting Expert. Accordingly, the admitted signatures of defendant no.1 Page 6 of 31 were sent by the trial Court to the Handwriting Expert and after obtaining the report thereof it was submitted to the First Appellate Court. 11. The First Appellate Court re-appreciated the evidence exhaustively and found the evidence of the Handwriting Expert not worthy of consideration. The First Appellate Court also found the oral evidence adduced by the plaintiff and defendant no.2 lacking in credence. With such findings, the Appeal was dismissed by confirming the judgment of the trial Court. 12. Being further aggrieved, the plaintiff has preferred the present Appeal, which was admitted on the following substantial questions of law:- “(i) When the plaintiff’s witnesses have their special means of knowledge with regard to the daughter- ship of defendant No.1 and satisfies the basic ingredients of Sections 50 and 60 of the Evidence Act, whether the learned Court below are justified in ignoring the oral testimony of the witnesses merely because they are in some way or the other related to plaintiff? (ii) When the report/opinion of the handwriting expert who compared the L.T.I./signature appearing the admitted L.T.I./signature on Ext.D with available on record in the Court and such report is admissible under Section 45 read with Section 73 of lower the Evidence Act, whether the appellate Court is justified in casting a doubt on the report in the absence of any rebuttal evidence available on record?” learned Page 7 of 31 13.
Legal Reasoning
Bench of this Court in the case of Thogorani (supra) and it was held as follows :- “If despite an order passed by the Court a person refuses to submit himself to such Page 27 of 31 medical examination a strong case for drawing an adverse inference would be made out which the Court is entitled to draw under Section 114 of the Indian Evidence Act. It is, therefore, inevitable to hold that in the event of the refusal of the opposite party no. 3 to give his blood sample for conducting DNA test, an adverse inference can be drawn by the trial court.” 31. As already discussed, the conduct of defendant no.1 is not to be considered out of the blue but along with the other circumstances and evidence referred to in detail in the preceding paragraphs. In such background, this Court is of the considered view that both the Courts below ought to have drawn adverse inference against defendant no.1 for not complying with the direction to submit her signature. 32. From the above analysis, this Court finds that there is overwhelming evidence to suggest that defendant no.1 is the daughter of Ananda Rath and Ashamani Rath and not of Gobinda and Radha as claimed by her. 33. The first substantial question of law is answered accordingly. 34. Some more legal points were also raised by the parties, for which it is deemed proper to consider the Page 28 of 31 same for whatever they are worth. It is argued that the suit was bad for non-joinder of the daughters of Madhab Nanda as they are necessary parties. The sale deed executed by Madhab in favour of the plaintiff was on 08.12.1961. Undisputedly, the daughters of Madhab never challenged the sale deed. It must therefore be presumed that Madhab Nanda being the Karta of the family had the legal right to alienate the suit property as per Article 254 of Mulla’s Hindu Law (28th Edition). That apart, Ext.A was executed prior to the amendment of Section 6 of the Hindu Succession Act, 1956 at a time when the daughters did not have any inherent right over joint family property. Therefore, the amended provision would have no application in respect of the sale deed executed prior to the cutoff date, i.e., 20.12.2004. 35. It was also argued that the suit for correction of R.O.R. was filed much beyond the period of limitation of three years from the date of its publication and was therefore, not maintainable. This Court is not impressed with this contention in view of the fact that the suit was not for correction of R.O.R. per se but based on Page 29 of 31 antecedent title with the plaintiff claiming to be in possession all through. Therefore, mere erroneous publication of the R.O.R. cannot extinguish the right, title and interest over the suit property. In the case of Basanti @ Basantirani Jena & others -Vrs.- State of Odisha, reported in 2016 (Supp.-I) OLR 529, this Court held as follows :- “Law is fairly well settled that in a suit based on antecedent title, when the Court finds the same in favour of the plaintiff and also finds his possession to have been there over the suit land, even if he does not call in question the wrong recording of the suit land in the settlement operation within a period of three years as prescribed in Article 58 of the Limitation Act and also as prescribed in Section 42 of the O.S.S. Act, he cannot be shown the door of exit and cannot be non- suited on that ground, on the face of the settled law that the entry in the record of right does neither create title in favour of someone who in fact does not have it nor does extinguish the title of the true owner in respect of the said land. So in that view of the matter when the title holder continues to remain in possession of the property despite of said wrong recording, his non-filing of the suit within a period of three years from the date of publication of the said erroneous R.O.R. cannot extinguish his right, title and interest over the property and as such he does not become disentitled to continue to be in possession as of that.” 36. Thus, on a conspectus of the analysis of facts, law and the discussion made, this Court is unable to Page 30 of 31 concur with the reasoning adopted by both the Courts below to non-suit the plaintiffs. On the contrary, it is found that the plaintiffs have proved their case adequately with the help of cogent evidence, which incidentally was rejected for reasons, which this Court is also unable to concur with. 37. In the result, the Second Appeal succeeds and is, therefore, allowed. The impugned judgments are set aside. The suit of the plaintiff is decreed by declaring his right, title and interest over the suit land; his possession over the suit land is confirmed and defendant no.1 is permanently restrained from interfering with the same. 38.
Arguments
Heard Mr.S.P.Mishra, learned senior counsel for the plaintiff-appellants and Mr.D.P.Mohanty, learned counsel for the defendant-respondents. 14. Mr. Mishra, learned senior counsel for the appellants would assail the impugned judgments by submitting that both the Courts below have misinterpreted the provision under Section 50 of the Act regarding proof of relationship of defendant no.1 as daughter of Gobinda. In this context, the statements of witnesses examined by the plaintiff were brushed aside on untenable grounds but those of witnesses examined by defendant no.1 were accepted. Mr.Mishra further argued that the First Appellate Court committed gross error in ignoring the report of the Handwriting Expert on flimsy grounds ignoring the conduct of defendant no.1, who refused to submit her signature for examination by the Court. The First Appellate Court also did not apply its own observation to compare the admitted and disputed signatures of defendant no.1 in order to satisfy itself before relying or discarding the Handwriting Expert’s opinion. Thus, instead of drawing adverse inference Page 8 of 31 against defendant no.1 for not submitting her signature for scientific analysis, the First Appellate Court discarded the evidence of the Handwriting Expert, who is in the nature of an expert witness. Mr. Mishra further argued that discarding of certified copy of sale deed marked Ext.A executed by defendant no.1 and her siblings is also contrary to the provision of Section 65 of the Evidence Act. As regards the finding of non-joinder of necessary parties, Mr. Mishra argued that Madhab being the absolute owner of the suit property had validly sold the same to the plaintiff for legal necessity. None of the so- called necessary parties has ever come forward to challenge the said sale deed. Madhab, being the Karta of the family had legal right to alienate the property as per Article 254 of Mulla’s Hindu Law. Mr. Mishra also argued that both the Courts below have placed undue reliance on the legal heir certificate even though the same, as per the relevant rules, is issued for a specific purpose only, and therefore, has no evidentiary value. Mr. Mishra concluded his argument by submitting that the suit based on antecedent title, where the title holder is in possession Page 9 of 31 despite wrong recording in the R.O.R., is maintainable as his right to file the same beyond the period of three years from the date of publication of the erroneous R.O.R. cannot be defeated. 15. To buttress his contentions as above, Mr. Mishra has relied upon the following decisions :- (i) Thogorani @ K.Damayanti –Vrs.- State of Orissa & others, reported in 2004 Cri.L.J. 4003. (ii) Fakhruddin –Vrs.- State of Madhya Pradesh, reported in AIR 1967 SC 1326. (iii) Basanti @ Basantirani Jena & others –Vrs.- State of Odisha, reported in 2016 (Supp.-I) OLR 529. (iv) C.Kamalakkannan –Vrs.- State of Tamil Nadu Ref. by Inspector of Police, C.B.C.I.D., Chennai (SLP (Criminal) 3044 of 2021). (v) Gopal Singh –Vrs.- Inderjit (CR- 2251-2022 (O & M) Punjab & Haryana High Court. (vi) Murari Lal –Vrs.- State of M.P., reported in (1980) 1 SCC 704. (vii) Renavva @ Lakshmi & others – R. Vrs.- Subramanya & others (Special Leave Petition (Civil) Diary No(s).28340/2025. Shantilkumarswamy Page 10 of 31 16. Per contra, Mr. D.P.Mohanty, learned counsel for the respondents argued that reliance placed by defendant no.2 on Ext.A and its acceptance by the Courts below is erroneous for the reason that the original thereof was never produced and moreover it was executed only a few months prior to filing of the suit. Further, in absence of the original document, the L.T.I. Register was called for and marked as Ext.D, but the entry in question was not satisfactorily proved. Ext.D contains the signature of Hullashmani Rath and not Ullalshmani Nanda. The Expert witness admitted in cross-examination that he had not taken into consideration any other letter except the word, “Hullashmani” and no scientific analysis was made. He also admitted that the examination was made on eye estimation only. Mr.Mohanty argued that the First Appellate Court rightly thought it prudent not to rely upon the opinion of the Expert. On such basis, Mr. Mohanty submitted that both the Courts below have therefore, rightly held defendant no.1 to be the daughter of Gobinda and Radha and dismissed the suit. Page 11 of 31 17. In support of his contentions, Mr. Mohanty has relied upon the following decisions :- (i) Jagjit Singh –Vrs.- State of Haryana, reported in AIR 2007 SC 590 (ii) Dayal Singh & others –Vrs.- State of Uttaranchal, reported in 2012(II) OLR (SC) 879. 18. From the rival contentions advanced, it is evident that the basic dispute between the parties revolves around the question, whether defendant no.1, Hullash @ Ullashmani Rath is the daughter of Gobinda and Radha. Both the Courts below have held so. In this context, out of two substantial questions of law framed at the time of admission of this Appeal, this Court is of the view that the second question relating to rejection of the opinion of the Handwriting Expert by the Appellate Court needs to be answered at the first instance. As already stated, by order dated 02.01.2006, the First Appellate Court directed as follows :- defendant is whether “10. The question for consideration in this no.1, case Hullashmani Rath is the same person who executed Ext.A. The admitted signature of the defendant no.1 is available in the written statement, Vakalatnama as well as on the order sheet dated 8.12.2004 when she was personally present in the court and signed Page 12 of 31 the order sheet while refusing to give her L.T.I. The defendant no.2 had filed a petition for comparison of the admitted signature of defendant no.1 with the signature available in Ext.D which was rejected by the learned trial court vide order dated 20.07.2004. 11. In the peculiar facts and circumstances of the case, I am of the view that the admitted signature of the defendant no.1 appearing in the written statement, Vakalatnama and order sheet dated 08.12.2004 are to be compared with the signature of Hullashmani Rath appearing in Ext.D by an Handwriting Expert the aforesaid signatures are of one person or is necessary to different persons which enable this Court to pronounce the judgment in a more satisfactory manner.” for opinion as to whether 19. The record was thereafter sent back to the trial Court before whom the Handwriting Expert was examined and submitted his opinion. Such opinion was submitted to the First Appellate Court. The Handwriting Expert, on comparison of the admitted and disputed signatures of defendant no.1 with the help of scientific instruments opined that the same belonged to one and the same person. The settled position of law is that the opinion of the expert such as Handwriting Expert is admissible as per Section 45 of the Evidence Act. It is equally well settled that the report of the expert is not binding on the Court but can be accepted as conclusive evidence of a Page 13 of 31 fact, if it is corroborated by other evidence. In the instant case, the First Appellate Court has expressed doubt with regard to correctness of the opinion of the Handwriting Expert on several grounds, such as that the Handwriting Expert had utilized a photographer for taking photograph of the signatures but the said photographer was never examined. It was further held that the Handwriting Expert did not prepare analysis chart and graphematic chart, rather his opinion is based on eye estimation only. How examination of the photographer or the analysis and graphematic charts could have improved the authenticity or correctness of his opinion has however not been spelt out by the First Appellate Court. On the contrary, it was stated by the Handwriting Expert in his deposition that preparation of such charts has become outdated whereas the examination done by him was in computer with the help of scientific instrument. The First Appellate Court has further referred to some other so-called discrepancies in his evidence relating to certain letters. This Court, after going through the evidence of the Handwriting Expert and his opinion (Ext.E) find no reason to doubt its correctness. Page 14 of 31 Assuming that the First Appellate Court was reasonably reluctant to place reliance on the opinion, it could have made a comparison of the admitted and disputed signatures to be subjectively satisfied vis-(cid:224)-vis the opinion of the Expert. As is often said, the Court is the expert of the experts and it is a well- accepted practice for the Courts to be personally satisfied by own observation. In the case of Fakhruddin (supra), the Hon’ble Supreme Court in paragraphs-10 & 11 held as follows :- “10. Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it be available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (S.45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (S.73) is comparison by in the the Court with a writing made presence of the Court or proved to be the writing of the person. Page 15 of 31 from resulting 11. Both under S.45 and S.47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved the same writings and characteristics the in disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert’s opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.” large measure finding of the in 20. It is true that the opinion of the expert, per se, may not be treated as gospel truth but corroboration from other sources may be sought for even as a measure of abundant caution. Thus, discarding of the opinion of the Handwriting Expert by raising unreasonable doubts without testing it against the oral and documentary Page 16 of 31 evidence on record or even by own observation by the Court even does not appear to be proper. The substantial question of law framed in this regard is answered accordingly. 21. Having answered the second substantial question of law, as above, this Court finds that the parties adduced oral as well as documentary evidence in support of their respective cases. The plaintiff examined six witnesses, defendant no.1, eight witnesses while defendant no.2, examined five witnesses. Both the Courts below have placed heavy reliance on the evidence of witnesses examined by defendant no.1. The statements of the witnesses examined by the plaintiff and defendant no.2 have more or less been discarded. It is not disputed that the burden of proving that defendant no.1 is the daughter of Gobinda and Radha lies on her. This is a case where relationship between defendant no.1 with the family of Jogi is under consideration. According to the plaintiffs, defendant no.1 is not the daughter of Gobinda and Radha but of Ananda Rath and Ashamani Rath having no relationship whatsoever with Nanda family. The Court Page 17 of 31 being required to form an opinion as to the relationship of defendant no.1 with the family of Jogi Nanda, the aid of Section 50 of the Evidence Act is to be taken, which is re- produced below :- “50. Opinion on relationship, when relevant.- When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.” 22. Thus, opinion of any person, who is one of the members of the families or otherwise has special knowledge regarding the relationship, is a relevant fact. In this regard, two witnesses, being P.W.2, who is the son of Ananda Rath and Ashamani Rath, and P.W.3, who is the brother of Jogi Nanda, are highly significant. P.W.2 categorically stated that defendant no.1 is one of his sisters, others being Bilashmani and Harshamani. The Courts below rejected his testimony only because he admitted to be selling paddy in the rice huller of the plaintiff. Only because P.W.2 was found to be working under the plaintiff does not, ipso facto, mean that his opinion is based on falsehood. The fact that he had three Page 18 of 31 sisters named Hullashmani (D-1), Bilashmani and Harshamani is otherwise proved from a sale deed marked Ext.A admitted into evidence by defendant no.2. Said sale deed bears No.435 dated 19.03.1994 whereby, the three sisters of P.W.2 along with him alienated land in favour of three persons, namely, Arnapurna Samantaray, Souri Samantaray and Halu Samantaray. The Courts below have not accepted Ext.A as the original was not produced but the certified copy was admitted into evidence. It must be kept in mind that defendant no.2 is not expected to be in possession of the original sale deed, he being not a member of the family or otherwise related. So, as per Section 65 of the Evidence Act, secondary evidence of the original is certainly admissible. Even otherwise, there is nothing wrong in accepting the certified copy at least for collateral purposes. While execution of the instrument itself has not been specifically denied or disproved, the same can certainly be looked into for the limited purpose of ascertaining as to who its executants were. So, if the evidence of P.W.2 is read along with Ext.A, there is no reason to discard the same purely on the technical ground Page 19 of 31 of the original having not been produced. In a way, it will tantamount to shutting one’s eyes to the glaring truth. 23. P.W.3 is the son of Anam Nanda, the brother of the common ancestor, Jogi Nanda. As such, he can be held to be acquainted with the members of the family. He is obviously not a complete stranger. He has categorically stated that the family has no member named Hullash @ Ullashmani (D-1). His testimony was discarded only on the ground that defendant no.2 had sold some ancestral property to some family members of the witnesses. It is as far-fetched a reason as it could be. This Court is unable to concur with the findings of the Courts below in this regard. So, out of five witnesses examined by the plaintiff, at least two belong to the family of Jogi Nanda and therefore, their opinion is highly relevant. P.W.4 is a villager wherein the suit land situates and hence, it would not be unreasonable to suppose that he also had special knowledge about the family of Jogi Nanda. P.W.6 is a villager from Bageswarpur, the village of Ananda Rath and Ashamani Rath. He also positively stated that Ullash, Bilashamani and Harshamani are the daughters of Page 20 of 31 Ananda Rath and Ashamani Rath. His house situates not very far from the house of Ananda Rath. His evidence was discarded by the Courts below on the ground that he was a Bhagachasi under Ananda Rath. Discarding the evidence of the aforesaid witnesses on the ground of their so-called interestedness does not cut much ice in absence of anything on record to show that they stood to gain by making such statements. Another important witness whose evidence was not considered in the proper perspective is defendant no.2 himself, which is none other than the son of Madhab Nanda, the vendor of the plaintiff. In other words, he is the best person to depose about his own family or the family of his uncle, Gobinda. If he actually had a sister in the form of defendant no.1, there ought to be more than sufficient reasons for him to disown her. This aspect has not been considered by the Courts below. 24. On the contrary, the Courts below have placed undue reliance on the evidence of the witnesses examined by defendant no.1. As already stated, defendant no.1 examined eight witnesses including herself, out of whom Page 21 of 31 D.W-2 (Santilata Satapathy) and D.W-7 (Bilasini Das) being daughter of Madhab Nanda are important witnesses being purportedly the cousin sisters of defendant no.1. There is evidence on record to show that these sisters of defendant no.2 were not pulling on well with him and were also in litigating terms. The Courts below have rejected the evidence of the plaintiff’s witnesses on the ground of their purported interestedness but surprisingly accepted the evidence of the witnesses examined by defendant no.1 ignoring the fact that on the same reason as applied to the plaintiff’s witnesses, they too could be treated as interested witnesses. It goes without saying that it is always for the Court to weigh the comparative worth of the testimonies of witnesses so as to accept one for the other but then such acceptance or for that matter rejection of the evidence of the witnesses by the Court must be based on reasonable grounds. Had there been no evidence other than oral in the case, the matter may have received a different consideration but then as is often said, witnesses may lie but documents do not. Applying this analogy to the facts of the present case, it is seen that the Page 22 of 31 document marked Ext.A serves as the greatest stumbling block for defendant no.1, which she was unable to surmount. Thus, in the considered view of this Court, both the Courts below committed manifest error in discarding the evidence of the plaintiff’s witnesses and accepting the evidence of the evidence of witnesses of defendant no.1 entirely. 25. Even if the evidence of all the above named witnesses are kept aside for a moment, the evidence of the scribe of the sale deed (D.W-3 for defendant no. 2), marked Ext.A cannot be simply thrown out because he not only identified the sale deed but identified defendant no.1 in Court. The trial Court has made such endorsement at the relevant place in the deposition of D.W-3. Nothing was placed before the Courts below or even before this Court to even remotely suspect the bondfides of D.W-3 so as to view his testimony with suspicion. Most significantly, his identification of defendant no.1 in the Court was confirmed by the Counsel for defendant no.1. As such, there ought to be no doubt with regard to the evidence of D.W-3. Page 23 of 31 26. In fact, D.W-3 stated the following in paragraph-3 of his evidence. “The figure imprint of Ullashmani Rath is given under serial no.1091 as apparent in Ext.A. On being asked by the learned counsel for defendant no.1, the witness identifies defendant no.1, which is confirmed by the learned counsel for defendant no.1. (D-1 is present along with five other married ladies and on being asked by him, learned counsel for D-1 clarifies that they are family members of D-1. The witness has put on spectacles. He identified D-1 after calling two other ladies near the Witness Box.)” 27. In view of the fact that the Court has itself recorded its satisfaction regarding identification of defendant no.1 by defendant no.3, this Court fails to understand as to what more was required. This clearly proves that defendant no.1 was the same person, who was one of the executants of the sale deed marked Ext.A, which describes her as the daughter of Ananda Rath and Ashamani Rath. 28. Speaking of the sale deed marked Ext.A, significantly, defendant no.1 was called upon by the trial Court to submit her signature for the purpose of enabling it to compare the same with the disputed signature. Defendant no.1 however refused to comply with such Page 24 of 31 direction on the ground that she had not signed on Ext.A. According to learned senior counsel, Mr. Mishra, this is enough to draw adverse inference against defendant no.1, as she must be deemed to have avoided to submit her signature, otherwise it would have ultimately proved that she was the person, who had signed also on Ext.A as Hullashmani Rath. 29. Per contra, Mr.D.P.Mohanty, learned counsel for the respondents argued that as per the settled position of law, there is no general rule that adverse inference must always be drawn whatever the facts and circumstances of the case may be. In the instant case, according to Mr. Mohanty, defendant no.1 having denied execution of Ext.A and there being other evidence on record to show that she was not one of the executants of the said document, no adverse inference can be drawn against her for not submitting her signature. In this context, Mr. Mohanty has relied upon a judgment of the Hon’ble Supreme Court in the case of Jagjit Singh -Vrs.- State of Haryana, reported in AIR 2007 SC 590. Section 73 of the Evidence Act confers power on the Court to Page 25 of 31 direct any person to write any word or figure for the purpose of enabling it to compare the same with disputed words or figures. In the case of Jagjit Singh (supra), it was held that ordinarily, adverse inference can be drawn in respect of allegations not traversed, but there is no general rule that adverse inference must always be drawn, whatever the facts and circumstances may be. 30. There can be no quarrel with the proposition as above but then in the instance case, merely by denying that she had signed on Ext.A, the conduct of defendant no.1 in not submitting her signature for comparison despite being asked by the Court becomes all the more suspicious. In other words, if she had indeed not signed on Ext.A then what prevented her from submitting her signature for comparison by the Court as it would have proved her own stand, but by not doing so, the stand taken by the plaintiff and defendant no.2 that she was one of the executants of Ext.A becomes automatically fortified. Both the Courts below have brushed aside this conduct of defendant no.1 without placing the importance it deserves. In the case of Sharda -Vrs.- Dharmpal, Page 26 of 31 reported in (2003) 4 SCC 493, Hon’ble Supreme Court has held as follows :- “79. If despite an order passed by the court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. Section 114 of the Indian Evidence Act also enables a court to draw an adverse inference if the party does not produce the relevant evidences in his power and possession. 80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one’s right of privacy. 81. To sum up, our conclusions are: 1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. 3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.” The ratio of Sharda (supra) was followed by a division
Decision
There shall be no order as to costs. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 15th July, 2025/ Manoj Signature Not Verified Digitally Signed Signed by: MANOJ ROUT K Reason: Authentication Location: ORISSA HIGH COURT Date: 22-Jul-2025 11:24:14 Page 31 of 31