Ram Shakal v. State Of U. P. — 1987 DIGILAW 303 (ALL)

JUDGMENT K.N. Misra, J. 1. In this writ petition dispute relates to plot nos. 43/2, 53, 56, 58/2,62/2 and 174 of Khata no. 188 situate in village Sahsa, Tehsil Tanda District Faizabad. In the basic record names of petitioners 1 and 2, namely, Ram Shakal and Ram Samujh, sons of Ram Nath were recorded. An objection was filed by opposite party no. 3 Ram Pher claiming to have acquired sirdari rights by adverse possession over the said plots. It was further averred that the petitioners had filed a suit against him on 29-7-60 under section 209 of UP ZA and LR Act, wherein cause of action was pleaded to the effect that the defendant had forcibly occupied the land dispossessing the plaintiff in the year 1365 F. This suit is said to have been dismissed on 27-3-61. The objector Ram Pher thus claimed to have acquired sirdari rights by adverse possession as no steps were taken for restoration of the suit and the said order became final. Petitioners contested the objection filed by Ram Pher opposite party no. 3 saying that they had not filed the aforesaid alleged suit nor they had signed the plaint. It was asserted that it was a manipulation of the objector Ram Pher opposite party No. 3 who somehow wants to grab the property. The petitioners asserted that the objector has not perfected any right, title or interest in the land in suit on the basis of his alleged adverse possession. The petitioners further asserted that they are tenure holders of the land in dispute and the entries regarding adverse possession in favour of opposite party no. 3 are fictitious and the same have been got made quite contrary to the prescribed procedure. 2. After taking evidence of the parties the Consolidation Officer vide order dated 30-9-77 allowed the objection of the objector Ram Pher holding him to have acquired sirdari rights by adverse possession over the aforesaid plots in dispute except plot No. 62/2. Petitioners preferred an appeal against the said order. Ram Pher also filed an appeal in respect of the said plot No. 62/2 for which his objection was dismissed. Both these appeals were heard together and vide order dated 29-7-78 petitioners' appeal was allowed and the appeal filed by Ram Pher was dismissed. Petitioners preferred an appeal against the said order. Ram Pher also filed an appeal in respect of the said plot No. 62/2 for which his objection was dismissed. Both these appeals were heard together and vide order dated 29-7-78 petitioners' appeal was allowed and the appeal filed by Ram Pher was dismissed. The Settlement Officer Consolidation recorded finding to the effect that the petitioners had not instituted the alleged suit under Section 209 of U. P. Zamindari Abolition and Land Reforms Act and the same was got filed by manipulation of the opposite-party No. 3 through some one else. It was also held that the entries in the revenue records were not made in accordance with the prescribed procedure and the same could not be relied upon. The entries in Class IX made in the khatauni of 1366-F to 1368-F were not accepted as after summoning the original diary and recording statement of Shri Shamil Hussain, A.R.K. Tehsil Tanda he came to the conclusion that there is no reference in the diary for making entry in Class IX in respect of the land in dispute in khatauni 1366-F to 1368-F. Although there appears amaldaramad of order dated 4-2-59 passed by Supervisor Kanoongo by which Ram Pher's name was recorded in Class IX, but there are no signatures of Supervisor Kanoongo on that entry. Shri Hussain in his statement deposed that P.A. 10 also bears no signatures of any officer ; after a careful perusal of the entries in revenue record in detail the Settlement Officer Consolidation recorded a finding to the effect that the entries were not made in accordance with the provisions of Land Record Manual and, therefore, the same could not be relied upon. He also recorded a finding that the petitioners had not filed the aforesaid suit. Thus, the claim as set out by the opposite party Ram Pher in his objection was not accepted and the entry made in the basic year record in the name of petitioners was maintained. Against said order opposite party no. 3 Ram Pher preferred a revision which was heard and allowed by the Joint Director of Consolidation vide its order dated 31-3-79. Learned Joint Director of Consolidation has held that opposite party no. 3 Ram Pher has perfected rights by adverse possession over the land in dispute. Against said order opposite party no. 3 Ram Pher preferred a revision which was heard and allowed by the Joint Director of Consolidation vide its order dated 31-3-79. Learned Joint Director of Consolidation has held that opposite party no. 3 Ram Pher has perfected rights by adverse possession over the land in dispute. He recorded a finding that the petitioners had filed the aforesaid suit under section 209 of UP ZA and LR Act against Ram Pher. He based his finding on his own observation comparing the signatures on the plaint of the said suit with the admitted signatures on record of this case. He also appears to have accepted the entry about possession of Ram Pher in the revenue record without taking into consideration the infirmities pointed out by the Settlement Officer Consolidation in his order. Learned Joint Director of Consolidation held the opposite party no. 3 in possession from 1366 F to 1368 F and he thus perfected his rights by adverse possession. He also observed that over as Bataidar he has acquired sirdari rights in the plots in dispute. This order has been challenged by the petitioners in this writ petition. 3. Learned counsel for the petitioners Shri Hargur Charan urged that the Joint Director of Consolidation has acted illegally and with material irregularity in exercise of his jurisdiction in basing his findings on his own observation about the genuineness of the signatures on the aforesaid plaint by comparing signatures thereon with the signatures of the petitioners on record of this case. Learned counsel further urged that since the entries in the revenue records were not made in accordance with the provisions of Land Record Manual and so the same could not be read and relied upon while upholding the claim of the opposite party no. 3 Ram Pher. Learned counsel thus contended that the finding recorded by the Joint Director of Consolidation stand vitiated in law and facts of the case and the error is apparent on the face of the record. The impugned order, therefore, deserves to be quashed. 4. In reply the learned counsel for the opposite party Ram Pher urged that the Joint Director of Consolidation has committed no error in making comparison of the signatures on the plaint with those of admitted signatures on record. The impugned order, therefore, deserves to be quashed. 4. In reply the learned counsel for the opposite party Ram Pher urged that the Joint Director of Consolidation has committed no error in making comparison of the signatures on the plaint with those of admitted signatures on record. This could be done under section 73 of the Evidence Act which provides that : "In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. Referring to section 73 of the Evidence Act learned counsel urged that the Joint Director of Consolidation has committed no error in comparing the signatures of the petitioners appearing on the plaint of the said suit with those of the admitted signatures on record. Learned counsel further contended that since petitioners had admitted in the said suit that they were forcibly dispossessed by the defendant Ram Pher in the year 1365 F and as such Ram Pher has perfected right by adverse possession as the said suit was dismissed in default on 27-3-61 and no attempt was made by the petitioners to get it restored. About revenue record entries learned counsel urged that Ram Pher's possession has been recorded continuously since 1362 F and his name was also recorded in class IX in Khatauni 1367-1368 F. Thus it was rightly held by the learned Joint Director of Consolidation that Ram Pher has acquired rights by adverse possession. His further contention was that the entries regarding possession of Ram Pher could not be rejected merely on the ground that no P.A. 10 was issued or served on the petitioners because it was after due partal the name of Ram Pher was recorded in Class IX in the aforesaid record and, so the entry cannot be said to have been fictitiously made. I have carefully considered and perused the impugned order passed by the Joint Director of Consolidation and also the orders passed by the subordinate consolidation authorities. I have carefully considered and perused the impugned order passed by the Joint Director of Consolidation and also the orders passed by the subordinate consolidation authorities. The first question which requires consideration in the present case is whether petitioners had instituted the alleged suit under section 209 of U. P. Zamindari Abolition and Land Reforms Act against Ram Pher on 29-7-60. The Joint Director of Consolidation has based his finding on his own observation about the signatures appearing on the plaint. At the very out set it may be stated that no expert's evidence was produced in this case on behalf of the opposite-party Ram Pher for the purpose of comparing disputed signatures on the plaint of the earlier suit allegedly filed by the petitioners with the admitted signatures on the record of the present case. The Joint Director of Consolidation has held that the plaint of the aforesaid earlier suit was filed by the petitioners whose signatures tally with the admitted signatures on record. In the absence of expert's opinion on the point such an attempt on the part of Joint Director of Consolidation cannot be said to be justified. In Darshan Singh v. Parbhu Singh, AIR 1946 Alld. 67 a Division Bench of this Court observed : "It is not desirable that a Judge should take upon himself the task of comparing signatures in order of find out whether there has been a forgery in a case. The least the Judge should do is to seek the assistance of the lawyers concerned in comparing the two signatures and arriving at his conclusions. It is not unusual to find a difference in the writing of one and the same person even after a short interval of time. It all depends upon many extraneous considerations -the pen, the ink, the paper, the posture of the hand, the general conditions in which he writes. It is for this reason that the law merely requires a consideration of the general character." In Azmat Ullah Khan v. M. Shiam Lal, AIR 1947 Alld. 411 Sinha, J. referring to several decisions on the point observed that :- "A Judge should not decide the question whether the disputed signature agrees with other signatures of a certain person merely on his own inspection without the assistance of any evidence. 411 Sinha, J. referring to several decisions on the point observed that :- "A Judge should not decide the question whether the disputed signature agrees with other signatures of a certain person merely on his own inspection without the assistance of any evidence. The proper course for him is to requisition the services of the expert especially in a case where the Judge does not find the matter free from difficulty and differs from the opinion of the lower court which by reason of its familiarity with the language and script was more competent to deal with the matter. " (Emphasis supplied) A similar question cropped up for consideration in Bhagwandin v. Gouri Shanker, AIR 1957 Alld. 119 wherein Hon'ble Randhir, J. observed :- "It is no doubt open to a Court to express its own opinion about the indentity or otherwise of a disputed hand writing or thumb impression but it would not be safe to base a conclusion entirely on such a comparison." In State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 the Hon'ble Supreme Court observed that :- "Although there is no legal bar to the judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other, and the prudent-course is to obtain the opinion and assistance of an expert." (Emphasis supplied) 5. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other, and the prudent-course is to obtain the opinion and assistance of an expert." (Emphasis supplied) 5. Thus, in view of the above, I find that the Joint Director of Consolidation committed a manifest error in basing his findings on his own observation about the signatures appearing on the plaint of the said suit and holding that the said suit was instituted by the petitioners against defendant Ram Pher on 29-7-60, wherein they admitted possession of the defendant Ram Pher since 1365 F. The prudent course should have been to obtain assistance of the expret by calling upon the opposite-party Ram Pher to get experts opinion on the points as to whether the plaint of the said suit bears signatures of the petitioners or not. It is, no doubt, correct to say that the signatures and the handwriting of any person on any document may be proved by the evidence of a person familiar with the signature or handwriting with that individual but in the present case no such evidence appears to have been led by opposite-party Ram Pher and the Joint Director of Consolidation has based his finding merely on his own observation by comparing the signatures appearing on the plaint of the said suit with those of the admitted signatures of the petitioners on the record of this case. The Joint Director of Consolidation should not have played a role of an expert as he has done in the instant case. Even the testimony of an expert on the point cannot be treated to be a subjective piece of evidence and the same can be accepted by the Court after considering such opinion on merit along with other evidence on record. The expert's evidence as to handwriting is opinion evidence and it is well settled that it rarely, if ever, takes the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear, direct or by circumstantial evidence-See Shanti Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 . 6. The expert's evidence as to handwriting is opinion evidence and it is well settled that it rarely, if ever, takes the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear, direct or by circumstantial evidence-See Shanti Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 . 6. Thus, where an expert opinion is given, the court must see for itself and with the assistance of the expert's opinion come to its own conclusion whether it can safely be held that the two writings are by the same person, or the signatures appearing on record are of the same person for whom it is said that they put the signatures on the document in question. This would not amount to the court playing role of an expert. The court may accept or reject the expert opinion on the point and record his finding taking into consideration all facts and circumstances of the case. The court would, however, not resort to play role of an expert. The court should not take upon himself the task of comparing signatures in order to find out whether the two signatures or writings agree with each other or not. The prudent course as observed by the Hon'ble Supreme Court in State (Delhi Administration) v. Pali Ram (Supra), is to obtain opinion and assistance of an expert. The Joint Director of Consolidation has, thus, committed manifest error in basing his finding mainly on his own observation by comparing the admitted signatures of the petitioners on the record of this case. This should not have been done and in the absence of direct and cogent evidence on record that the plaint of the said suit bears the signature of the petitioners and also in the absence of expert opinion on the point. I find it difficult to uphold the findings recorded by the Joint Director of Consolidation that the aforesaid suit was instituted by the petitioner. This question has got to be determined after considering evidence on merits of the case and since it has not been done the said observation made by the Joint Director of Consolidation cannot be sustained. 7. There is yet another ground on which the order passed by the Joint Director of Consolidation cannot be sustained. This question has got to be determined after considering evidence on merits of the case and since it has not been done the said observation made by the Joint Director of Consolidation cannot be sustained. 7. There is yet another ground on which the order passed by the Joint Director of Consolidation cannot be sustained. A perusal of the order passed by the Settlement Officer Consolidation indicates that there is discussion in detail regarding revenue record entries and thereupon he has come to the conclusion that the entries regarding possession of opposite-party Ram Pher was not made in accordance with Land Record Manual. He has also observed that Class IX entry also cannot be accepted and this observation is based on consideration of the evidence of A. R. K. Shri Shamil Hussain who had brought the diary from the record room and has given his statement with reference to it. The Joint Director of Consolidation has not taken into consideration said evidence on record nor he has cared to record a finding as to why in his opinion the findings recorded by the Settlement Officer Consolidation rejecting entries cannot be accepted. The Settlement Officer Consolidation had given cogent reasons for not placing reliance on the revenue record entries. The Joint Director of Consolidation should have, therefore, considered those grounds and recorded reasons for disagreeing with the same while recording his own findings about the genuineness of entries and also on the point as to whether entries were made in accordance with the provisions of Land Record Manual or not. While scruitinising the entries in the revenue records it has also to be kept in mind that the possibility of deliberate manipulation cannot be ruled out. It has repeatedly come to notice that the entries in the current as well as in the consigned records are purposely manipulated in order to create evidence to support the claim set up by the concerned party. Thus the entries have got to be scruitnised thoroughly and if the same have not been recorded in accordance with the provisions of the Land Record Manual the same cannot be read and relied upon in evidence and would deserve to be rejected. 8. Thus the entries have got to be scruitnised thoroughly and if the same have not been recorded in accordance with the provisions of the Land Record Manual the same cannot be read and relied upon in evidence and would deserve to be rejected. 8. A provision has been rightly incorporated in Land Record Manual that extract of P. A. 10 be issued and served on the recorded tenure holder in respect of the entry regarding possession made in favour of a trespasser. If there is no sufficient evidence on record with regard to the notice to the tenure-holder about the existence of trespass over his land through service of extract of P. A. 10 upon him as required under the provisions of Land Record Manual, there would be every reason to suspect entries in the record to have been manipulated and fictitiously got recorded. But on the other hand if the tenure holder has been informed of the existence of the trespass over the land of his holding by service of P. A. 10 on him, he should be vigilant and is expected to take action for the removal of the trespass within the period of limitation and if he does not do so is to suffer the consequence of his negligence. Thus, it is very important to ascertain as to whether P. A. 10 was duly prepared and served on the tenure holder or not. In the present case the Joint Director of Consolidation has not taken into consideration this aspect of the matter while placing reliance on the entry in the revenue record in favour of opposite-party No. 3 Ram Pher. The impugned order, therefore, cannot be sustained on this ground as well. In the result, this writ petition succeeds and is hereby allowed and the impugned order dated 31-3-79 passed by the Joint Director of Consolidation, Faizabad is hereby set aside and opposite-party No. 1 is directed to restore the revision to its original number and decide it in accordance with law and in the light of the observations made above after taking into consideration all facts and circumstances and the evidence on record. He may give opportunity to opposite- party No. 3 to obtain expert opinion on the matter referred to above, if he may so like to produce expert opinion on the subject. In case any such evidence is led by opposite-party no. He may give opportunity to opposite- party No. 3 to obtain expert opinion on the matter referred to above, if he may so like to produce expert opinion on the subject. In case any such evidence is led by opposite-party no. 3 then the petitioner be also given opportunity to lead evidence in rebuttal which they like to produce. It is expected that the opposite- party no. 1 will proceed to decide the case expeditiously after giving due opportunity of hearing to the parties. No order as to costs.