Judgment Tarun Kumar Gupta, J. 1. PLAINTIFF is the appellant against this judgment of reversal. PLAINTIFF filed a suit being Title Suit No.9 of 1984 in the Court of learned Civil Judge (Senior Division), Second Court, Bankura for specific performance of the contract. According to plaintiff she sold out the suit property at a consideration of Rs.9,999/- to the defendant on 30th January, 1981 when defendant executed an unregistered agreement stating that if said principal amount would be paid to him 2 within the month of Magh, 1399 B. S. by the present plaintiff then he would execute a deed of re-conveyance in favour of the plaintiff and that on failure on his part plaintiff would be at liberty to file a case for specific performance of contract. It is further case that plaintiff collecting the consideration money approached defendant in the month of Poush, 1390 B. S. to execute the Kobala in favour of plaintiff in terms of said agreement dated 30th January, 1981 but without any result. It is further case that plaintiff sent an advocates notice dated 19th December, 1983 to the defendant asking him to be present at Gangajal Ghati registration office on 18th January, 1984 for execution of said Kobala in favour of the plaintiff in terms of said agreement dated 30th January, 1981 but defendant did not turn up in spite of receipt of said notice on 21st of December, 1983. Accordingly, plaintiff filed said suit for specific performance of contract alleging that she was all along ready and was still ready and willing to perform her part of contract namely payment of consideration money. 2. THE defendant filed a written statement denying material allegations of the plaint and contending inter alia that though defendant purchased the suit property from plaintiff through a Kobala dated 30th January, 1981 on payment of market price of Rs.9,999/- but he did not execute any agreement either on that date or any subsequent date agreeing re-conveyance of the suit property to the plaintiff. It was further case that plaintiffs son Swapan Kumar Mahanta had developed a bitter 3 relation with the defendant during a joint business of running a bus and that he managed to procure an alleged agreement with forged signature of the defendant. It was further case that plaintiffs son Swapan Kumar Mahanta had developed a bitter 3 relation with the defendant during a joint business of running a bus and that he managed to procure an alleged agreement with forged signature of the defendant. It is further case that defendant was running a business in the suit property and later on he inducted his brother Felaram as a tenant in the suit premises for running a business and that suit was liable to be dismissed with cost. 3. ON the basis of the pleadings of the parties several issues were framed by the learned Trial Court. Both parties also adduced evidence both oral and documentary. Learned Trial Court was of the opinion that the agreement of re-conveyance was not a forged one as alleged by the defendant and that it was enforceable in law and accordingly passed a decree of specific performance of contract in favour of the plaintiff. 4. IN the appeal being Title Appeal No.95 of 2002 preferred by the defendant, learned Additional District Judge, Second Court, Bankura, however, allowed the appeal by setting aside the judgment and decree of Trial Court. At the time of hearing of the Second Appeal, filed at the instance of the plaintiff, the following substantial question of law was formulated upon which learned counsels of the parties argued. 4 (1) Whether learned Lower Appellate Court substantially erred in law in coming to the conclusion that the agreement dated 30th of January, 1981 was not at all legal agreement and that it was procured and forged one though the evidence on record was to the contrary. Mr. Mahendra Prasad Gupta, learned counsel for the appellant, submits that learned Lower Appellate Court set aside the judgment and decree of learned Trial Court without considering material evidence on record. According to him, both Kobala and agreement of re-conveyance were executed on 30th January, 1981 and that most of the witnesses of Kobala were also witnesses of the agreement of re-conveyance. He further submits that though those witnesses gave specific evidence in Court about execution of said agreement of re-conveyance dated 30th January, 1981 by the defendant in their presence and their evidence remained unshaken during cross-examination, but learned Lower Appellate Court did not even discuss their evidence. He further submits that though those witnesses gave specific evidence in Court about execution of said agreement of re-conveyance dated 30th January, 1981 by the defendant in their presence and their evidence remained unshaken during cross-examination, but learned Lower Appellate Court did not even discuss their evidence. According to him, learned Lower Appellate Court ignored their specific evidence just by observing that they were relations and known persons of the plaintiff. He further submits that though the disputed agreement of re-conveyance was forwarded to the hand writing expert for opinion on comparing with admitted signatures of the defendant, and the hand writing expert gave a specific report stating that signatures appearing on the deed of re-conveyance were the signatures of the person making those admitted signatures (defendant), but learned Lower Appellate Court did not even discuss as to why he discarded said report of hand writing expert who was admittedly an independent witness. In this connection he has referred case laws reported in (2009) 13 SCC page 229 (L.N. Aswathama and another versus P. Prakash) and (2011) 4 SCC page 240 (H. Siddiqui versus A. Ramalingam to impress upon this Court that learned First Appellate Court should not reverse the well reasoned findings of learned Trial Court on the basis of conjectures and surmises, and / or without analyzing the relevant evidence in entirety. Learned counsel for the appellant has further submitted that when defendant took the specific plea that the signatures appearing on the agreement of re-conveyance were forged ones or that fraud was practiced then he should have proved the same. According to him, even no objection was raised when said agreement of re-conveyance was proved by plaintiffs son (P.W.1) and admitted into evidence (Ext.1). According to him, at the later stage there was no scope of raising objection against said exhibited document (Ext.1). In support of his contention he referred a case law reported in 2009 (10) SCC page 239 (P.C. Thomas vs. P.M. Ismail and others). According to him, at the later stage there was no scope of raising objection against said exhibited document (Ext.1). In support of his contention he referred a case law reported in 2009 (10) SCC page 239 (P.C. Thomas vs. P.M. Ismail and others). According to him, learned Lower Appellate Court gave unnecessary stress on the fact of non-examination of plaintiff though explanation was given, on some minor change in the wordings of the schedules of the kobala and agreement of re-conveyance, and made out a third case that plaintiffs son Swapan Kumar Mahanta with his men manufactured said deed of re-conveyance keeping the plaintiff (his mother) in dark and that case was also filed by him using the name of the plaintiff. Accordingly, he prays for setting aside the impugned judgment of learned Lower Appellate Court and restoring the judgment and decree of learned Trial Court. Mr. Jiban Ratan Chatterjee, learned senior counsel for the defendant, on the other hand, submits that though it was alleged that both Kobala (Ext.A) and agreement of re-conveyance (Ext.1) were executed on the same date i.e., 30th January, 1981 but deed writers were different and that schedule of the two deeds were also not exactly worded in same language and that the witnesses of the deeds were relations or known persons of plaintiff and that all those things justifiably raised great suspicion in the mind of learned Lower Appellate Court. He further submits that when the suit property was sold out to the defendant in 1981 with the market price then it is unthinkable that a prudent man will execute an agreement of re-conveyance for selling back said property at the same price if he was approached within about 10/11 years particularly when he purchased said property for running his business. He further submits that admittedly plaintiff was the best witness but she was not examined and her son against whom there was specific allegation by the defendant in his written statement was examined and accordingly learned Lower Appellate Court rightly drew an adverse inference for holding back the best witness namely the plaintiff. 5. He further submits that admittedly plaintiff was the best witness but she was not examined and her son against whom there was specific allegation by the defendant in his written statement was examined and accordingly learned Lower Appellate Court rightly drew an adverse inference for holding back the best witness namely the plaintiff. 5. IN this connection he further submits that the evidence of hand writing expert cannot be binding on a Court of law and that a Court has the power under Section 73 of the Indian Evidence Act to compare the disputed signatures of a document with admitted signatures of a person and to come to a definite findings contrary to the opinion of hand writing expert. 6. HIS further contention is that learned Lower Appellate Court came to a definite findings of facts that agreement of re-conveyance was procured by plaintiffs son by managing to obtain signature of defendant on blank stamp paper and that it was not a legally enforceable agreement and that plaintiff was not also ready all the time to perform her part in terms of said alleged agreement of re-conveyance. According to him, those being findings of fact cannot be interfered by this Court in the second appeal. In this connection he has referred case laws reported in (2001) 3 SCC page 179 (Santosh Hazari vs. Purushottam Tiwari) and (2001) 9 SCC page 521 (Pakeerappa Rai vs. Seethamma Hengsu and others). 8 There is no denial that at the time of hearing of second appeal under Section 100 of the Code of Civil Procedure there is no scope of interfering with the findings of facts of the Lower Court unless it can be shown to be based on no evidence, or based on extraneous matters, or perverse. It is also settled principles of law that even if the findings of fact of the Lower Court were wrong still in the second appeal there is no scope of interference unless the judgment was perverse on the grounds as just stated above. In L.N. Aswathamas case (ibid) the duty of First Appellate Court was quoted in para 8 of the judgment as follows:- "The first appellate court can re-appreciate evidence and record findings different from those recorded by the trial court. In L.N. Aswathamas case (ibid) the duty of First Appellate Court was quoted in para 8 of the judgment as follows:- "The first appellate court can re-appreciate evidence and record findings different from those recorded by the trial court. It is well settled that if the appraisal of evidence by the trial court suffers from material irregularity, as for example when its decision is based on mere conjectures and surmises, or when its decision relies upon inadmissible evidence or ignores material evidence or when it draws inferences and conclusions which do not naturally or logically flow from the proved facts, the appellate court is bound to interfere with the findings of the trial court. It is equally well settled that where the trial court has considered the entire evidence and recorded several material findings, the first appellate court would not reverse them on the basis 9 of conjectures and surmises or without analysing the relevant evidence in entirety. As the final court of facts, if the first appellate court is reversing the judgment of the trial court, it is bound to independently consider the entire evidence." In H. Siddiquis case (ibid) Hon’ble Apex Court further examined the powers of First Appellate Court under Order 41 Rule 31 of the Code of Civil Procedure with the following observations in para 21 of said judgment which is reproduced below:- "The said provisions provide guidelines for the appellate court as to how the Court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evidence from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate courts judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court 10 must not record mere general expression of concurence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions." Learned First Appellate Court gave much stress on non-examination of plaintiff. Learned First Appellate Court in this connection also went to the extent to observe that plaintiff never filed the suit before the Court as she was aware that a fabricated agreement of re-conveyance was manufactured by her son. But during evidence plaintiffs son Swapan Kumar Mahanta (P.W.1) categorically deposed that he was deposing on behalf of her mother (plaintiff) as she was bed ridden and was not capable of coming to Court. No suggestion whatsoever was even given to him (P.W.1) that his mother (plaintiff) was not bed ridden or that she was not permitted to come to Court or that the case was filed keeping her in dark. It is true that P.W.1 stated during evidence that she will not produce her mother in this case, but as the illness of the P.W.1 mother (Plaintiff) was not even challenged during evidence there was no scope of making any adverse inference for non-examination of plaintiff or for alleging that the best witness was withheld. Learned First Appellate Court came to a finding that plaintiffs son Swapan Kumar Mahanta somehow procured some signed stamp papers of defendant to convert the same to be an agreement of re-conveyance (Ext.1). This is nothing but a third case. The defendant stated in his written statement as well as in his deposition that he did not make any agreement of re-conveyance and that the signatures appearing thereupon were not his signatures and were forged ones. As such, aforesaid observation of learned First Appellate Court was beyond evidence and perverse. 7. THE witnesses of the agreement were examined by the plaintiff. As such, aforesaid observation of learned First Appellate Court was beyond evidence and perverse. 7. THE witnesses of the agreement were examined by the plaintiff. They were Narayan Chandra Banerjee (P.W.2), Salil Kumar Mahanta (P.W.3) Sunil Mahanta (P.W.4). They categorically deposed about putting of signatures by the defendant on said agreement in their presence and thereafter putting of their respective signatures thereupon. Their evidence on this point remained unshaken in spite of crossexamination. It is true that P.W.3 Salil Kumar Mahanta and P.W. 4 Sunil Mahanta were relations of the plaintiff and P.W.2 Narayan Chandra Banerjee was an acquaintance of the plaintiff. I fail to understand how a document, if duly executed, can be vitiated for its attesting witnesses being relations or acquaintance to a party. Unless a person is an acquaintance or a relation or a friend of the executant he is not expected to come to be an attesting witness at the time of execution of a document. Unfortunately, learned First Appellate Court straightway ignored said oral evidence of P.W.2, P.W.3 and P.W.4 though duly tested by cross-examination, simply on the ground that they were either relations or acquaintance of plaintiff. THE hand writing expert Jiban Kumar Sur Chowdhury (P.W.5) was examined to prove his report (Ext.9) wherein he opined that the signatures appearing on the disputed document (agreement of re-conveyance) tallied with admitted signatures of the defendant. He was cross-examined at length but his evidence remained unshaken. Learned First Appellate Court did not assign any reason whatsoever for discarding said evidence of hand writing expert. It is true that the Court has power under Section 73 of the Indian Evidence Act to examine the disputed signatures with the admitted signatures to form an opinion even contrary to the opinion of hand writing expert. But learned Lower Appellate Court did not make any observation in this line to discard the opinion of the hand writing expert. 8. IT is true that schedule of kobala dated 30th January, 1981 and schedule of disputed agreement were not worded with exact same words, but it cannot be said that two schedules were quite different. IT is also true that kobala was written by one Jhannabi and the agreement was written by one Sudhir Chattoraj. But it came out 13 from evidence that Sudhir Chattoraj (who is dead by this time) was an assistant of Jhannabi. IT is also true that kobala was written by one Jhannabi and the agreement was written by one Sudhir Chattoraj. But it came out 13 from evidence that Sudhir Chattoraj (who is dead by this time) was an assistant of Jhannabi. But above anomalies cannot be a ground for holding an agreement of re-conveyance to be not proved and not legal, particularly when there was overwhelming evidence on record, both oral and documentary, to prove its execution by the defendant. There were evidence on record that plaintiff offered the defendant money for execution of the deed of re-conveyance not only verbally but also by sending a lawyers notice. As such, the observation of learned First Appellate Court that plaintiff was not ready with the money was also against the evidence on record. From the aforesaid discussions it is palpable that the impugned judgment of learned Lower Appellate Court, being perverse and being not based on evidence on record, was not sustainable in law. As a result, the appeal is hereby allowed on contest but without costs. The impugned judgment and decree of learned Lower Appellate Court are hereby set aside by restoring the judgment and decree of learned Trial Court. 14 Send down Lower Court records along with a copy of this judgment at the earliest. 9. URGENT Photostat certified copy of this judgment be supplied to learned counsel / counsels of the party / parties, if applied for.