Jammu & Kashmir High Court – Srinagar Bench
Mohammad Ramzan Bhat And Ors ( Senior … vs Mst. Khati And Anr on 5 June, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Serial No. 71
Suppl; Cause List.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM (M) No. 216/2025
CM No. 3527/2025
Caveat No. 1376/2025.
MOHAMMAD RAMZAN BHAT AND ORS ( SENIOR CITIZEN).
...Petitioner (s)
Through: Mr. Altaf Mehraj, Advocate.
VERSUS
MST. KHATI AND ANR.
Through: Mr. Naveed Gul, Advocate.
...Respondent(s)
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
ORDER
05.06.2025
01. The petitioners, through the medium of the present petition, have
challenged Order dated 13th of May 2025, passed by the 4th Additional Munsiff
Srinagar, (hereinafter “The Trial Court”) whereby an application filed by the
respondents/defendants seeking permission to forward Relinquishment Deed filed
by the plaintiffs/petitioners to Forensic Science Laboratory (FSL) for examination
of the signature/thumb impression of the executant, has been allowed.
02. It appears that the predecessor-in-interest of plaintiffs Mst. Fazi Begum,
filed a suit for Permanent Prohibitory Injection before the learned Trial Court,
seeking an Injunction against the defendants, restraining them from causing any
interference in the property situated at Mouza Hyderpora, Sanat Nagar, Srinagar.
03. In the plaint, the plaintiffs claim that they are owners in possession
of the suit property and that defendant No. 1 had relinquished all her rights in
respect of the property in question way back in the year 1973, in favour of original
plaintiff whereafter Mutation No. 1288 was attested in favour of the original
plaintiff. It was contended by the plaintiffs that the relinquishment dated 27 th of
December 1995, duly registered by the Sub-Register Budgam, has been executed
by the Defendant No. 1 in favour of the original plaintiff.
04. The defendants in their written statement have submitted that the
parties to the suit are co-owners of the property in question. It has been specifically
denied by the defendants that Defendant No. 1 had relinquished her share in
favour of the original plaintiff in terms of the Relinquishment Deed dated 27 th of
December 1995. It has been claimed by the defendants that Defendant No. 1 has
not executed any such deed whatsoever in favour of the original plaintiff relating
to the suit property, and she has never appeared before the Registering Authority,
nor has she put her thumb impression/signature on any such document. The
defendants have also filed a counter claim seeking a declaration that
Relinquishment Deed dated 27th of December 1995 be declared as unlawful, void,
and inoperative against the defendants.
05. It appears that during pendency of the suit, the defendants made an
application before the learned Trial Court with a prayer that the aforesaid
Relinquishment Deed may be sent to the FSL for comparing the thumb
impression/signatures of the Defendant No. 1 appearing on the said deed with her
admitted signatures/thumb impressions. By virtue of the impugned order,
the trial court, has, while exercising its powers under Order 26 Rule 10-A CPC,
allowed the said application and directed that the Relinquishment Deed dated 27th
of December 1995 be forwarded to the FSL for examination.
06. Issue notice to the respondents. Mr. Naveed Gul, learned Advocate
who is on caveat accepts notice on behalf of the respondents. The Caveat bearing
No. 1376/2025 stands discharged.
07. Heard learned counsel for the parties and perused record of the case.
08. It is an admitted position that the issues in the suit are yet to be
framed, and trial of the case is yet to begin. The question whether the
Relinquishment Deed is forged one or whether it is genuine, has to be decided
during trial of the suit. The same cannot be decided before the commencement of
trial of the suit. The petitioners/plaintiffs are relying upon the Relinquishment
Deed which has been registered before the Sub-Registrar. Therefore, a
presumption of genuineness is attached to the due execution of the
Relinquishment Deed. Of course, the said presumption is rebuttable in nature and
onus of proving that the said Relinquishment Deed is forged one, lies heavily upon
the defendants. It will only be during the trial of the case that the defendants would
have an opportunity of rebutting this presumption. However, even before the
framing of the issues, this aspect of the matter cannot be gone into.
09. The veracity of a defendant’s defence in a suit is ascertained during
the trial and evidence gathering phases, which would include discovery,
inspection of the relevant documents, admission and denial of documents,
recording of preliminary statements of the parties. The veracity of the defence that
has been set up by the defendants in the present case can be gone into by the Trial
Court only during trial of the case. It is only if defendant No.1, after stepping into
the witness box is able to dispute her thumb impression/signature on the registered
Relinquishment Deed property to bear her thumb impression/signature, that an
occasion would arise to seek the assistance of a scientific investigation. The said
stage is yet to arrive. Therefore, it was not open to the learned Trial Court to issue
the impugned direction at a stage when trial of the suit was yet to commence.
Thus, the learned Trial Court has grossly erred in exercising his jurisdiction under
10. For the foregoing reasons, the impugned order, passed by the trial
Court, is set aside. However, it shall be open to the learned trial court to consider
the prayer of the defendants for examination of the Relinquishment Deed by an
expert of FSL afresh at the appropriate stage.
11. Disposed of.
(Sanjay Dhar)
Judge
SRINAGAR
05.06.2025
Showkat Khan