13. As I have already noticed that the opposite party No.1 as plaintiff filed Title Suit No. 100 of 2009 in the Court of Assistant Judge, 3rd Court, Gazipur for cancellation of the gift deed No.2453 dated 30-6-2004 registered at Tongi Sub-registry office as described in the schedule of the plaint. It is found that the plaintiff-opposite party to prove his case examined 3 witnesses and the plaintiff herself was examined as PW-I, who in her deposition stated that:-
bvt Rwg‡Z Avwg †fvM `L‡jvKvKv‡j ¯^vgx gviv hvq| 1 cyÎ I Kb¨v †i‡L| 1/2 bs weev`x Avgv‡K e¨vs‡Ki †_‡K †jvb wb‡q †`‡e e‡j Rvbvq| †m Rwg‡Z wewìs K‡i evm Kivi Rb¨| GRb¨ wKQz UvKvmn Rwgi KvMRcÎ w`B| wKš’ †jvb †`q bvB| e‡j †h e¨v‡Ki ms‡M Pzw³ Kiv jvM‡e, ó¨v‡¤ú mB jvM‡e| Avwg 5wU ó¨v‡¤ú mB w`B| ó¨v¤ú I UvKv †dir PvB| 1/2 bs weev`x e‡j †h, UvKvI bvB, RwgI bvB| AvZ¥xq ¯^Rb‡K RvbvB| Zjøvkx w`‡q bvt Rvt `wj‡ji bKj DwV‡q weM` 4-9-2006Bs Zvs bvt Rvt `wj‡ji wel‡q Rvb‡Z cvwi| 2453 bs `vbcÎ `wjj 30-6-2004Bs Zvs Avwg KL‡bv †iwRóªx K‡i †`B bvB|
14. PW-2, Malati Rosario stated in her deposition that the plaintiff is her sister and the defendants are her nephews and her sister got the suit land by inheritance. This witness also stated that she came to know about the forged deed from the plaintiff. This witness in her cross-examination denied the suggestion that she deposed falsely as per instruction of her sister.
15. PW 3, Somor Rosario, who stated in his deposition that:-
Avwg ev`x weev`x bvt Rwg wPwb| ev`x Avgvi wcmx| weev`xiv PvPv‡Zv fvB| weev`xiv †jvb †`evi K_v e‡j bvt Rwgi `wjj K‡i †bq| bvt Rwg ev`x kvK mewR K‡i †fvM K‡ib|
16. Let me now advert to the evidence of defendant side. It appears that defendant No. I Bimol Rosario himself was examined as DW-I, who in his deposition stated that-
ev`xmn Avgvi Ab¨vb¨ dzdzM‡bi ms‡M Lye fvj m¤úK©, eow`b, Bóvi mvb‡W mn wewfbœ cvjv ïi cvV‡b Avgv‡`i evox‡Z Avm‡Zb| Avgiv Av`i Avc¨vqb KiZvg| ev`x D³iæ‡c Avgv‡`i cÖwZ mš’ó n‡q bvt m¤úwË `vb K‡i `Lj eywS‡q †`b|
17. DW 2, Md Shahidullah, who examined the thumb impressions of the plaintiff as hand writing expert and submitted a report. This witness proved his report along with films as “Exhibit B series”. This witness in his cross-examination also stated that
cÖwZ‡e`‡b wK cÖKv‡ii Qvc cixÿv K‡iwQ Zv D‡jøL Kwi bvB| Rvb‡Z Pvq bvB|Ó
18. It is found that the trial Court below on consideration of the evidence and materials on record came to a finding that “DW-2 admitted that date of the impugned deed and the date in thumb impression book is not the same even what type of impression has been examined is not mentioned in the report.”
On perusal of the exhibits and the depositions of the DWs, contradicts found and, as such, the expert opinion is rejected, and, on this finding the learned Assistant Judge cancelled the deed in question (Exhibit-A) and decreed the suit. Further, it appears from the “Exhibit A, that the attesting witness of the impugned deed was not the member of the donee and donar’s family. DW-1 in his cross-examination admitted that:-
Òbvt `wj‡j Avgvi Ab¨ †Kvb wcmv‡Zv fvBmvÿx bvB|
bvt `wj‡ji mvÿx GKRb Avgvi cÖwZ‡ekx Aci Rb Avgvi k¦ïi|Ó
19, In this case it is found that the defendant Nos. l-2 did not or could not examine any attesting witness to prove the deed of gift (Exhibit A). It is also found that the appellate Court below on the facts of the case and on consideration of the evidence and materials on record arrived at a finding that the plaintiff is a 45 years old lady, she has two minor children. It is quite unnatural that depriving that minor child their mother could gift her property to her nephews.”
20. On a close perusal of the record, I find nothing on record to suggest that any of the witnesses corroborated the evidence of DW 1 on the point of possession of the defendant-petitioner in the suit land.
21. The proposition of law is by now well settled that the expert’s opinion is not a conclusive evidence which enables the court to come to a satisfactory conclusion, though the said opinion is not binding upon the Court. The Court itself can compare any signature or LTI of any concerned person under section 73 of the Evidence Act and come to a decision In accordance with law.
22. In this case the trial Court as well as the Court of appeal below considered the entire evidence on recaard and came to a concurrent finding that in the facts and circumstances of the case there was no reason on the part of the plaintiff opposite party to gift the suit land to her nephews depriving her minor child.
23. On assessment of the evidence on record together with the impugned deed of gift dated 30-6-2004 ( Exhibit A), I do not find any valid ground to differ with the view taken by the Courts below, Therefore, I am unable to accept the contentions mixed by the learned Advocate for the petitioner that both the Courts below without applying in Judicial mind into the facts and circumstance of the case most illegally rejected the expert’s opinion and decreed the suit.
24. The decisions cited by the learned Advocate for the petitioner are distinguishable on facts.
25. In view of my discussion made in the foregoing paragraphs it is by now clear that the instant Rule must fail.
26. In the result, the Rule is discharged without any order as to costs. The judgments of both the Courts below are hereby maintained.
Let a copy of this judgment along with the lower Courts record be sent down at once.