SA/535/2008 of HARIMOHAN SAXENA & ANOTHER Vs RAVIKUMAR SAXENA & 2 ORS. on 2 February 2024

JUDGMENT

1. This second appeal has been preferred by the appellant/defendantsunder Section 100 of the Code of Civil Procedure, 1908 (for short“CPC”) being aggrieved by the judgment and decree dated 16.5.2008passed by the Addl. Judge to Addl. District Judge, Agar in Civil AppealNo.19-A/2007, thereby affirming the judgment and decree dated 12.2.2007 passed by the 2[nd] Civil Judge Class-II, Agar in Civil SuitNo.313-A/2004 filed by the respondent No.1/plaintiff for declaration oftitle, permanent injunction and compensation, which has been decreedby the trial Court.

2. Brief facts of the case are that Purushottam Das was earlier theowner of the suit land bearing Survey No.2439 having area 0.993hectare and Survey No.2443/2 having area 0.178 hectare situated atAgar and after his death Brijkishore Saxena (father of the plaintiffs)became owner of the suit land and the plaintiffs are his legal heirs.Chaturbhuj Das, Purushottam Das and Sankarn Das were also the seniormember of plaintiff’s family. Deceased defendant was just a caretakerof the said property. In 1996 Brij Kishor Das has died and after hisdeath, plaintiff No.1 Ravi Kumar used to visit Agar and he wasmanaging the income derived from the suit land. In the month ofSeptember 2003, when the plaintiff Ravi came to Agar for the purposeof selling the suit land, at that time he came to know that allegedlythrough two different registered sale deeds dated 17.11.1980 suit landwas sold out to the defendant No.1, but on the same day Brij KishoreDas was performing his official duty in the college situated at Mumbaiand these sale deeds are forged documents, which were never executedby Brij Kishore Saxena and no consideration was ever paid to him bythe defendant No.1. Apparently defendant No.1 has forged andfabricated those sale deeds. Therefore, the respondents No.1 &2/plaintiffs have preferred a civil suit before the trial Court seekingdecree for permanent injunction, declaration of title and compensation.

3. Defendants No.1 & 2/appellants denied all the allegations byfiling their written statement, in which it has been contended thatChaturbhuj was the main Karta of the family and his decisions werealways accepted by all the family members. Being a owner of the suitland Brij Kishore Das sold out the suit land to the defendant No.1 videtwo different registered sale deeds and accordingly name of thedefendants were duly mutated in revenue records. The suit filed by theplaintiffs is barred by law and is not tenable and deserves to bedismissed.

4. Learned trial court after recording the evidence and hearing boththe parties, allowed the suit filed by the plaintiffs by the judgment anddecree dated 12.2.2007. Being aggrieved by the said judgment anddecree, the appellants/defendants No.1 & 2 have preferred first appealbefore the appellate court and by the impugned judgment and decreedated 16.5.2008 the first appellate court has affirmed the judgment anddecree passed by the trial Court. Before the first appellate court analternate plea of adverse possession has been taken by the appellants,which has been also discarded. Hence, this second appeal has beenpreferred before this court by the appellants.

5. Learned counsel for the appellants contended that the judgmentand decree passed by both the courts below are contrary to the law andfacts. The trial court has erred in allowing the suit of the defendantsNo.1 & 2/plaintiffs. The first appellate court has also committed graveerror in dismissing the application under Order 41 Rule 3 of CPC and

Issues

another application under Order 6 Rule 17 of CPC filed by theappellants. Both the courts below have failed to consider the oral anddocumentary evidence produced by the appellants. Signature of BrijKishore Das was not examined by any handwriting expert and inabsence of any handwriting expert’s report, the trial court hascommitted error in holding that the said sale deeds were not executedby Brij Kishore Das Saxena. Thus, in view of the aforesaid, learnedcounsel for the appellants submits that the appeal deserves to beadmitted on the substantial question of law proposed by the appellants.

6. Per contra, learned counsel for the respondents/plaintiffs opposedthe prayer by submitting that the impugned judgment and decree passedby both the courts below are just and proper and not deserve for anyinterference.

7. This appeal has been admitted on the sole substantial question of law:- “Whether, the court below has committed error inpassing a decree for declaration that sale deed dated17.11.1980 is forged and does not bear signature ofBrijkishore Das without appointing Handwriting Expert byrejecting an application filed by the present appellant underSection 45 of the Evidence Act?”

8. I have gone through the judgment and decree passed by both thecourts below and also perused the entire record with due care.

9. First of all learned counsel for the appellants submitted that thelower appellate court has committed grave error in dismissing theapplication under Order 41 Rule 3 of CPC and another applicationunder Order 6 Rule 17 of CPC filed by the appellants.

10. Both these interim applications filed before the first appellatecourt i.e. IA No.2 & IA No.3 perused, but the proposed amendments donot appears to be bonafide in nature and not necessary for properadjudication of the first appeal. Appellants did not show any good andreasons for not pleading the same facts before the trial court. Therefore,on the basis of the above, the lower appellate court has rightly rejectedboth the interim applications – IA No.2 & IA No.3.

11. Appellant’s second legal contention is that respondents/plaintiffshave filed the suit for declaration and injunction after lapse of about 25years, therefore, the suit is time barred. But the defendants were not theparty in the aforesaid registered sale deed. They have no knowledgeregarding the execution of the aforesaid sale deeds. When they came toknow about the execution of the sale deed, they have filed a suit withinthe limitation. Therefore, both the courts below have rightly held thatthe suit filed by the respondents/plaintiffs is not time barred.

12. Plaintiff/respondent Raghunath Saxena (PW-1) categoricallystated in his statement that father of the plaintiff Brijkishore Das Saxenawas the owner of the suit land and defendant No.1 Harimohan Saxenawas only care taker of the suit land. Plaintiff No.1 Ravi Kumar used tovisit Agar for managing the suit land and in the month of September 2003 he came to know that the suit land was sold out by two differentregistered sale deeds Ex.P/22 & P/23, but the same was not executed bythe Brijmohan Das Saxena. At the time of execution of the sale deed,Brijkishore Das was doing job in a college situated at Mumbai. RaviKumar Saxena (PW-2), Brijmohan Das Saxena (PW-3) and Haridas(PW-5) also corroborated the statement of Raghunath Saxena (PW-1).

13. Appellant/defendant Harimohan Saxena (DW-1) categoricallystated in his statement that he had purchased the suit land fromBrijkishore Das in presence of the witnesses Haridas and Mohanlal onconsideration of Rs.15,000/- through registered sale deeds, which wereduly signed by the Brijkishore Das and attesting witnesses Haridas andMohanlal. Then Brijkishore Das handed over the possession of the suitland to his wife Kamla Bai. Thereafter he along with Kamla Baikeeping continuous possession over the suit land as owner and doingagricultural work upon it. Mohanlal (DW-2) and BanshidharMaheshwari (DW-3) also corroborated the statement of the defendantHarimohan Saxena.

14. Admittedly, respondents/plaintiffs did not examine anyhandwriting expert before the trial Court to establish that both theregistered sale deeds did not bear any signature of Brijmohan Das.Although it is the settled position of law that as per Section 45 of theIndian Evidence Act, handwriting expert’s opinion is not a conclusiveform of evidence and it cannot be read in absence of other corroborativeevidence. Therefore, it is quite clear that such type of evidence is a week form of evidence. Appellants were having all rights andopportunities to get the report of handwriting expert to strengthen theircase, but the same had not been done by them. Appellants cannot beallowed to take advantage of his own wrong. It is also true that theappellants have filed an application under Section 45 of the EvidenceAct before the trial Court and same has been dismissed, but theappellants did not challenge the said order before the Hon’ble HighCourt, therefore, the said order has attained finality and same cannot bemade a ground of this appeal.

15. Learned counsel for the appellants submits that it is settled lawthat registered sale deeds were presumed genuine document andwithout getting any handwriting expert’s evidence, such presumptioncannot be ignored and without the aid of an expert, Court cannot makeany conclusion only upon his own comparison. Counsel for theappellants has placed reliance upon the judgment in the case of K.Ahmed Alli Sab (deceased) and others Vs. Desai Abdul Gani Desai[AIR 2005 Andhra Pradesh 374],The State (Delhi Administration)Vs. Pali Ram [1979 AIR(SC) 14],Bhagwan Din Vs. Gouri Shankarand another [AIR 1957 Allahabad 119], O. Bharathan Vs. K.Sudhakaran and another [AIR 1996 SC 1140] and Vimal ChandGhevarchand Jain and others Vs. Ramakant Eknath Jajoo [2009(3)Supreme 460].

16. It is the settled position of law that Section 73 of the IndianEvidence Act empowers the Court to compare signature, writing or see with other admitted or proved documents. The Hon’ble Apex Court inthe case of S. Gopal Reddy Vs. State of A.P. reported in 1996 SCC

(Cri.) 792has held that:-

“28. Thus, the evidence of PW 3 is not definite and cannot besaid to be of a clinching nature to connect the appellant with thedisputed letters. The evidence of an expert is rather weak type ofevidence and the courts do not generally consider it as offering‘conclusive’ proof and therefore safe to rely upon the samewithout seeking independent and reliable corroboration. InMagan Bihari Lal v. State of Punjab [(1977) 2 SCC 210], whiledealing with the evidence of a handwriting expert, this Courtopined: (SCC pp. 213-14, para 7)

“...... We think it would be extremely hazardous to candemnthe appellant merely on the strength of opinion evidence of ahandwriting expert. It is now well settled that expert opinionmust always be received with great caution and perhaps none sowith more caution than the opinion of a handwriting expert.There is a profusion of precendential authority which holds that itis unsafe to base a conviction solely on expert opinion withoutsubstantial corroboration. This rule has been universally actedupon and it has almost become a rule of law. It was held by thisCourt in Ram Chandra v. State of U.P. [AIR 1957 SC 381] that itis unsafe to treat expert handwriting opinion as sufficient basisfor conviction, but it may be relied upon when supported byother items of internal and external evidence. This Court againpointed out in Ishwari Prasad Misra v. Mohd. Isa [AIR 1963 SC1728] that expert evidence of handwriting can never beconclusive because it is, after all, opinion evidence, and this viewwas reiterated in Shashi Kumar Banerjee v. Subodh KumarBanerjee [AIR 1964 SC 529] where it was pointed out by thisCourt that expert's evidence as to handwriting being opinionevidence can rarely, if ever, take the place of substantiveevidence and before acting on such evidence, it would bedesirable to consider whether it is corroborated either by cleardirect evidence or by circumstantial evidence. This Court hadagain occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P.[AIR 1967 SC 1326] and it uttered a note of caution pointing outthat it would be risky to found a conviction solely on theevidence of a handwriting expert and before acting upon suchevidence, the court must always try to see whether it iscorroborated by other evidence, direct or circumstantial.”

17. In the case of Sunil Chowdhury vs. Arup Kumar Ghosreported in AIR 2006 Calcutta 109, a Division Bench of the CalcuttaHigh Court also held that:- “24. Section 73 of the Evidence Act on the other hand authorisesthe Court in order to ascertain whether a signature, writing etc. bythe person by whom it purports to have been written or made, tocompare the same with any signature, writing etc. admitted orproved to the satisfaction of the Court to have been written ormade by that person although that signature, writing etc. has notbeen produced or proved for any other purpose.

25. The aforesaid Section 73 further authorises the Court todirect any person present in Court to write any words or figuresfor the purpose of enabling the Court to compare the words orfigures so written with any words or figures alleged to have beenwritten by such person.”

18. Same principle has been laid down by the Division Bench of theDelhi High Court in the case of Rajinder Bajaj Vs. Indian TanningIndustries and others reported in AIR 2008 Delhi 62, wherein it hasbeen held that:- “6. Applying the principles laid down in the above notedjudicial pronouncements, it would be seen that in the instantcase no expert evidence, was available and the trial Courtexamined the signatures on the purported appointment letter

and compared the same with the admitted signatures of Mr.Juneja in the written statement and the affidavit. The trial courtwas perfectly justified in doing so. The trial Court foundglaring discrepancies which could be discerned by naked eye.It was, therefore, of the view that the purported appointmentletter was a fabricated one. The expert evidence had not beenled. In these circumstances, where the conclusion reached bythe trial Court was a definite and categorical one not admittedto any doubt, non examination of the handwriting expert couldnot be said to be fatal.”

19. It is trite law that there is no legal bar to prevent the Court fromcomparing signature or handwriting by using its own eye to comparethe disputed writing with the admitted writing and applying its ownobservation to prove the said handwritings to be the same or different,as the case may be. Signature of Brijmohan Das on the admitted letter(Ex.P/26 to P/29), which has been written by Brijmohan Das, has beenduly proved, which was not challenged during the cross-examination ofthe Ravi Kumar (PW-2). Therefore, these documents are unrebutteddocuments. Glaring discrepancies discernible with naked eye.Therefore, non examination of the handwriting expert is not fatal for therespondents/plaintiffs and the conclusion reached by both the courtsbelow that the registered sale deeds (Ex.D/1 & D/2) are the fabricatedone, deserves credence. Both the courts below were duly justified inexamining and comparing the registered sale deeds with the admittedsignature of Brijmohan Das. Therefore, contention made by theappellants cannot be accepted.

20. It is also noteworthy that during the cross-examination of theRaghunath Saxena (PW-1) and Ravi Kumar Saxena (PW-2) appellants/defendants did not give any suggestion that consideration amount waspaid by the defendant or in lieu of the consideration, sale deeds wereexecuted. Appellant did not produce any relevant evidence that theamount of consideration paid by them was deposited in the account ofthe deceased Brijmohan Das. Therefore, the appellants have failed toprove that they have purchased the suit land after payment of properconsideration.

21. Mohanlal (DW-2) who happens to be witness of the alleged saledeeds, categorically stated in his statement that Haridas Saxena andBrijkishore Das had signed the alleged sale deed and he is not awarewith rest of the facts. Therefore, on the basis of the statement ofMohanlal (DW-2) the execution of the alleged sale deed by BrijkishoreDas appears to be doubtful. Banshidhar Maheshwari (DW-3) whohappens to be an advocate and allegedly drafted the sale deeds (Ex.D/1& D/2), but he has turned hostile and not supported the case of thedefendant. He stated that he has just typed the alleged sale deeds andnothing more. Even he is not acquainted with the Brijkishore Das andfurther admits that he has typed the sale deeds on the instruction of thedefendant. Appellants did not examine concerned Registrar of RegistryDepartment before the trial Court. Therefore, the execution of the saledeeds also became more suspicious.

22. On the basis of the foregoing analysis and the law laid down bythe Hon’ble Apex Court and different High Courts, this Court is of theconsidered opinion that the judgment and decree passed by both thecourts below are based upon the proper appreciation of evidence.Therefore, this Court does not find any infirmity in the judgment anddecree passed by both the courts below who have taken a plausible andreasonable view on the evidence on record. Hence, this second appeal isdismissed being devoid of merit. No order as to costs.

Trilok/-

(ANIL VERMA) JUDGE

Digitally signed by TRILOK SINGH SAVNER

Date: 2024.02.02 18:14:00 +05'30'