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2005 DIGILAW 1265 (PNJ)

Nachhattar Singh v. Mohan Singh

2005-12-13

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. The is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff-respondent is entitled to specific performance of agreement dated 21.3.1990 with possession in respect of agricultural land specified therein. The plea of the defendants-appellants that the agreement to sell has fixed the date of execution of the sale deed as 30.6.1990 and not as 30.6.1992 has been rejected by both the Courts below. The defendants-appellants have alleged that the digit O of 1990 was forged by the plaintiff-respondent and changed into 1992 has not been accepted by both the Courts below. The handwriting and documents expert have been examined by both the parties and both have supported their respective parties. Holding that in such like situations the evidence of an expert has very little value the lower appellate Court has placed reliance on the judgment of the Lahore High Court in the case of Sadiqa Begam v. Ata Ullah A.I.R. 1933 Lahore 885. It has further been held that before proceeding to act on evidence of such an expert it would require corroboration in material particulars either by clear direct evidence or by any other satisfactory evidence. The lower appellate Court has concluded that there is no direct evidence or any such circumstantial evidence which may corroborate either of the two reports. Even otherwise the science of comparison of handwriting concerning the documents is not a definite science as has been held by the Supreme Court in the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Satya Pal Gopal Doss v. Smt. Panchu Bala Dassi and Ors. 1985(2) All India Land Laws Reporter 504 (S.C.). In this situation the learned lower appellate Court has adopted the method of examining the documents with naked eye and has concluded as under: In the light of this it is to be seen whether there is any forgery or not because duty is cast on the Court to scan the reliability of the evidence led by the respective parties. In this situation the learned lower appellate Court has adopted the method of examining the documents with naked eye and has concluded as under: In the light of this it is to be seen whether there is any forgery or not because duty is cast on the Court to scan the reliability of the evidence led by the respective parties. Although the learned Counsel for the appellant has argued that if Agreement Ex.P-1 is seen with naked eye, it will prove the forgery of digit O in year 90 to digit 2 in the year 92 yet 1 do not agree with this argument of the learned Counsel for the appellant because the digit 2 in agreement to sell Ex.P-1 has been used at as many as at ten places and mostly the digit 2 is the same as it figures in the date 30.6.1992 and if it is so then how it can be said that there is forgery of digit O to 2. Moreover, this agreement to sell Ex.P-1 has been scribed by one Deed writer and there is no question of any difference in manner of writing digit 2 at these places and it completely rules out the possibility of forgery as alleged by the appellants. Even otherwise this agreement to sell Ex.P-1 has been proved from the testimony of PW-2 Bahadur Singh and PW-3 Rameshwar Nath, the scribe of this agreement apart from the respondent who appeared as PW-4 and nothing could be extracted from their cross-examination by the learned Counsel for the appellants. Again a feeble attempt was made by the appellants to prove that on the strength of this agreement to sell Ex.P-1 he further entered into an agreement to sell orally with one Mohinder Singh and he paid Rs. 50,000/- as earnest money and further agreed to execute the sale deed on or before 30.6.1990 but when he could not pay the entire sale consideration, the said Mohinder Singh filed a suit in the civil Court and vide judgment Ex.PZ suit was decreed for alternate relief of recovery of Rs. 50,000/- as earnest money and further agreed to execute the sale deed on or before 30.6.1990 but when he could not pay the entire sale consideration, the said Mohinder Singh filed a suit in the civil Court and vide judgment Ex.PZ suit was decreed for alternate relief of recovery of Rs. 4,50,000/- along with interest and it proved the bonafide of the appellants but I do not find any substance in this argument of the learned Counsel for the appellants because each and every transaction has to be proved according to law and by mere making allegations that forgery has been made by the respondent so the appellants could not perform their part of contract with Mohinder Singh has no bearing and the appellants cannot derive any benefit from that suit though may have been decreed against the appellants vide judgment Ex.PZ because there is no such recital in this agreement Ex.P-1 that appellant will invest the consideration for the purpose of land from Mohinder Singh. Even otherwise the framing of charge-sheet, copy of which is Ex.PZ/2 against the appellants in a complaint u/s 420/120B I.P.C. has no relevancy with this transaction because it is independent transaction and the appellants cannot derive any benefit from their own faults. In fact, there is no illegality or irregularity committed by the lower Court while returning findings on issue No. 1 against the appellants and in favour of respondent and the same are hereby affirmed. 2. Learned Counsel for the defendants-appellants has again raised the same argument which was raised and rejected by the Courts below. It has been urged by him that the digit 0 in the year 1990 has been forged by interpolating the same and converting into 2 and therefore the sale deed was required to be executed by 30.6.1990 and not by 30.6.1992. To the repeated queries made by the Court as to how he aforementioned arguments would amount to a question of law, learned Counsel for the appellants has not been able to give any satisfactory answer. 3. Learned Counsel for the plaintiff-respondent has on the other hand argued that there are pure findings of fact recorded by both the Courts below which are based on cogent evidence and such findings cannot be disturbed in exercise of jurisdiction of this Court under Section 100 of the Code. 3. Learned Counsel for the plaintiff-respondent has on the other hand argued that there are pure findings of fact recorded by both the Courts below which are based on cogent evidence and such findings cannot be disturbed in exercise of jurisdiction of this Court under Section 100 of the Code. The question of forgery of digit 0 to 2 are necessarily findings of fact. 4. Having heard the learned Counsel for the parties and perusing the judgments of both the Courts below I am of the considered view that no interference of this Court in the concurrent finding of fact recorded by both the Court below would be warranted. The onus to prove as to whether the digit 0 has been controverted to 2 was heavily on the defendants-appellants which he failed to discharge. The reports of the experts on both sides are contradictory and could not constitute a basis to record finding either way. Therefore, the Courts below have decided the issue by examining the document with naked eye and it has been concluded that the digit 2 has figured at many other places which looks to be similar to the disputed digit 2, It is, therefore, unnecessary to delve into those findings of fact in exercise of jurisdiction under Section 100 of the Code. The appeal is wholly without merit and is thus liable to be dismissed. 5. Before parting with the judgment it would be interesting to notice the developments in the area of expert witness in England. In the case of Field v. Leeds City Council (2000)17 E.G. 165, the question of presenting an expert witness by the Leeds City Council had arisen and the District Judge considered that such an expert was unacceptable because he was employed by the Council. On that basis the Council had appealed and the question raised before the Court of Appeal was whether it was appropriate for an expert to be called who was an employee of one of the parties. The Court of Appeal was not prepared to accept such an expert and opined that he should automatically be disqualified from giving evidence. On that basis the Council had appealed and the question raised before the Court of Appeal was whether it was appropriate for an expert to be called who was an employee of one of the parties. The Court of Appeal was not prepared to accept such an expert and opined that he should automatically be disqualified from giving evidence. It has further been opined that it should have been left to the Council by an appropriate order of the Trial Judge to satisfy the Court that such an expert witness had full knowledge of the requirements of an expert to give evidence before the Court and that he was fully familiar with the need for objectivity. The Court of Appeal has recommended that in similar cases the concerned authority should provide some training to an employed person whom they wished to use an expert and thereafter the Council could then point to such a training to show that the expert had necessary awareness of the difficult role of an expert. Lord Woolf M.R. speaking for the Court of Appeal went on to make some comments which are more of general nature and the same reads as under: - The ideal way of disposing of issues such as that which arise in this case, is for one expert to be appointed by both sides. Clearly, someone in Mr. Broadbents position is not going to be acceptable by the other side. I would hope that procedures will be devised where claimants in cases such as this inform the authority of the expert whom they intend to engage so that the views of the authority can be taken into account. That could lead to single experts being appointed much more often than has happened in the past which is ideally to be desired. 6. The Courts in India could develop some system by seeking consensus of the parties for appointment of an expert who may have unimpeachable credibility. There could be a system of certified experts and the Courts may give a choice to the parties to choose one of them by consensus. Once there is consensus on the choice of such an expert then the statement made by him would inspire considerable confidence beside saving valuable time of the Court and advancing the administration of justice. The situation like the one which has developed in this case would be avoided. Once there is consensus on the choice of such an expert then the statement made by him would inspire considerable confidence beside saving valuable time of the Court and advancing the administration of justice. The situation like the one which has developed in this case would be avoided. For the reasons aforementioned this appeal fails and the same is dismissed.