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2022 DIGILAW 1481 (KAR)

Channamma v. Siddappa

2022-11-17

SACHIN SHANKAR MAGADUM

body2022
JUDGMENT/ORDER 1. The captioned second appeal is filed by the unsuccessful defendant who has questioned concurrent judgments and decrees of the Courts below wherein both the Courts have declared plaintiff as the owner of the suit schedule property and have further declared that the sale deed dtd. 16/12/1989 is a fraudulent and a void document and consequently, defendant is directed to deliver possession of the suit schedule property in favour of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. Plaintiff instituted a suit for possession. Plaintiff also sought the relief of declaration claiming that he is the absolute owner of the suit schedule property. Plaintiff specifically contended that he has acquired the property vide indenture of deed dtd. 20/10/1970. Plaintiff specifically pleaded that owing to his health problems he was compelled to migrate to Nannivala from Bommakkanahalli village. Plaintiff claimed that suit land was given to the husband of defendant who readily agreed to cultivate the land by giving half share in the agriculture yield to the plaintiff. Plaintiff further claimed that when defendant was called upon to handover possession, she declined on the premise that she is the owner of the suit schedule property. Plaintiff immediately rushed to the revenue office and on enquiry found that defendant has concocted a fraudulent document styled as sale deed dtd. 16/12/1989. Plaintiff alleged that this sale deed is created by false personation and therefore, questioned the sale deed to declare it as a void document. 3(a) Defendant on receipt of summons tendered appearance and stoutly denied the entire averments made in the plaint. Though defendant admitted plaintiff's title, however, claimed that after the death of her husband she continued to cultivate the land in question and therefore, she purchased the suit land under registered sale deed dtd. 16/12/1989. Therefore, she claimed to be the absolute owner and prayed for dismissal of the suit. The defendant also claimed that the suit is barred by limitation. 3(b) Plaintiff to substantiate his claim examined himself as P.W.1 and examined one witness as P.W.2 and adduced documentary evidence vide Exs.P1 to P10, while defendant led evidence through her GPA who is examined as D.W.1 and adduced rebuttal documentary evidence vide Exs.D1 to 9. The defendant also claimed that the suit is barred by limitation. 3(b) Plaintiff to substantiate his claim examined himself as P.W.1 and examined one witness as P.W.2 and adduced documentary evidence vide Exs.P1 to P10, while defendant led evidence through her GPA who is examined as D.W.1 and adduced rebuttal documentary evidence vide Exs.D1 to 9. 3(c) Pending consideration of the suit, plaintiff filed an application seeking an expert's opinion in regard to the disputed and admitted signatures found on the alleged sale deed. The said application was allowed and the matter was referred to handwriting expert. The handwriting expert has submitted her report which is marked at Exs.C1 to C6 and the handwriting expert is examined as C.W.1. Defendant has not chosen to cross examine the handwriting expert and objections are filed to the report. The Trial Court having assessed the oral and documentary evidence as well as the report of the handwriting expert has come to the conclusion that the alleged sale deed set up by defendant vide Ex.D2 is a fraudulent document and consequently, proceeded to declare the said sale deed as void. The Trial Court having examined the report of the Court Commissioner and other clinching evidence led by plaintiff has come to the conclusion that the sale deed is a created document and therefore, referring to the Commissioner's report, the Trial Court has come to the conclusion that the sale deed is created by a false personation and on these set of reasoning, the Trial Court has proceeded to decree the suit. 3(d) Feeling aggrieved by the judgment and decree of the Trial Court, the defendant preferred an appeal before the Appellate Court. The Appellate Court on re-appreciation of the oral and documentary evidence has also concurred with the findings recorded by the Trial Court insofar as the disputed sale deed is concerned. The Appellate Court has also taken note of the Commissioner's report and in absence of serious contest by defendant, the Appellate Court has also placed reliance on Commissioner's report and found that the specimen thumb impression and also the specimen signatures on comparison with the disputed left thumb mark signatures were found to be not identical. The Commissioner on comparison of the specimen left hand thumb impression and the admitted signatures with the disputed left thumb mark signature has clearly opined that they are not made by the same person. The Commissioner on comparison of the specimen left hand thumb impression and the admitted signatures with the disputed left thumb mark signature has clearly opined that they are not made by the same person. The commissioner has opined that the disputed signatures are not identical to that of specimen signatures. On thumb impression, the expert has stated that they are made by different thumbs of different persons. It is in this background, the Appellate Court was also not inclined to interfere with the judgment and decree of the Trial Court. Consequently, the appeal is dismissed. 3(e) These concurrent judgments are under challenge at the hands of the defendant herein. 4. This Court vide order dtd. 14/7/2016 has formulated following substantial question of law: "1. Were the Courts below justified in decreeing the suit of the plaintiff, when the plaintiff filed the suit for cancellation of the sale deed dtd. 16/12/1989 only on 25/8/2000 after lapse of 11 years in view of Article 59 of the Limitation Act ? 2. Were the Courts below justified in decreeing the suit of the plaintiff shifting the entire burden on the defendant to prove the case? 3. Were the Courts below justified in decreeing the suit of the plaintiff ignoring the material documents Exs.D1 to D9? 4. Were the Courts below justified in decreeing the suit of the plaintiff in the facts and circumstances of the case?" 5. Heard the learned counsel for the defendant and learned counsel appearing for plaintiff. 6. The material on record clearly indicates that defendant is not disputing the title of plaintiff. There are serious allegations against defendant that the sale deed is obtained by false personation and it is a fraudulent document and therefore, plaintiff claims that defendant has not acquired any right over the suit schedule property. For reasons best known to defendant she has not chosen to step into the witness box while she has examined her son as D.W.1. It is further found from the materials that defendant for reasons best known to her has not chosen to cross- examine the hand writing expert who is examined as C.W.1. On the contrary, plaintiff has made all possible efforts to substantiate his claim. He has also taken pains to examine the Sub-Registrar of Chitradurga Taluka who is examined as P.W.2. It is further found from the materials that defendant for reasons best known to her has not chosen to cross- examine the hand writing expert who is examined as C.W.1. On the contrary, plaintiff has made all possible efforts to substantiate his claim. He has also taken pains to examine the Sub-Registrar of Chitradurga Taluka who is examined as P.W.2. By examining the Sub-Registrar, plaintiff has made all possible efforts to secure the original register containing the signatures and thumb impressions of the seller and buyer maintained in the office. Based on these original documents, the plaintiff has also taken pains to seek handwriting expert's opinion and the admitted specimen of thumb impression with the disputed thumb impression and the admitted and disputed signatures found on the alleged sale deed were sent to handwriting expert's opinion. 7. The Commissioner's report would virtually clinch the entire controversy between the parties. The relevant portion of the opinion of the hand writing expert relating to the comparison of thumb impression and also disputed signatures with that of admitted signatures would be relevant and the same are culled out as under: "I have carefully examined the specimen left thumb impressions of Siddappa and is marked as Al and A2. I have also carefully examined the disputed impressions in the thumb impression register Vol.No.430-449 in Ex.P10(a) is marked as Q1 and impression in the sale deed dtd. 16/12/80 Ex.D2 marked as Q2. I have taken photographs of the specimen and disputed impressions. Enlarged photographs with C.D are herewith enclosed. For the purpose of comparison specimen impression A1 is taken by me. I have compared the impressions Q1,Q2 with that of the specimen impression A1. On comparison the pattern of the disputed impression Q1,Q2 are being whorl type. specimen impression A1 is being loop type. The trend and flow of the ridges are circular in the disputed impression Q1 and Q2. In the specimen impression the ridges bends in the center and slopes towards left side. The basic pattern are different in the Q1 and Q2. with that of A1 For the above said reasons, I am of the opinion that the disputed impressions are not identical to that of specimen impression and are made by different thumbs of different person. Sd/- (C.V.Jayadevi) EXPERT. The basic pattern are different in the Q1 and Q2. with that of A1 For the above said reasons, I am of the opinion that the disputed impressions are not identical to that of specimen impression and are made by different thumbs of different person. Sd/- (C.V.Jayadevi) EXPERT. I have also carefully examined the specimen signatures of Siddappa and marked as S1,S2,S3 and S4 I have compared the specimen signatures S1 to S4 inter se. I have also carefully examined the disputed signatures in Ex.10(a) and marked as D1 and disputed signature in the sale deed dtd. 16/12/1989 Ex. D2 and marked as D2. I have taken photographs of the disputed and specimen signatures. Enlarged photographs with C.D are here with enclosed. I have compared the disputed signatures with that of the specimen signatures. 1) On comparison disputed signatures differs from that of the specimen signatures. 2) The pictorial appearance of disputed signatures differs from that of the specimen signatures. 3) The disputed signatures shows superior skill than the specimen signatures. 4) The construction and formation of the letters in the disputed signatures differs from that of the specimen signatures. 5) There is smoothness and directness in the disputed signatures but not so in the specimen signatures. 6) There is clear cut formation of the stroke in the disputed signatures but not so in the specimen signatures. 7) The line quality is medium in the disputed signatures but not so in the specimen signatures. 8) In the disputed signatures speed is medium but slow in the specimen signatures. 9) In the disputed signatures the pen hold is not stiff but it is so in the specimen signatures. 10)In the disputed signatures individualized characteristic differs from that of the specimen signatures. 11)There are calligraphic differences in the disputed signatures with that of the specimen signatures. 12) In the letter ' ' the upper stroke ends with hook in the disputed signatures but circle in the specimen signatures. 13) The letter 'zÀ'Ý upper ending stroke is curve in the disputed signatures but upwards in the specimen signatures. 14) In the letter ' À ' the upper circle is above the center stroke in the disputed signatures but towards left side in the specimen signatures. For the above said reasons, I am of the opinion that the disputed signatures are not made by the person who made the specimen signatures. 14) In the letter ' À ' the upper circle is above the center stroke in the disputed signatures but towards left side in the specimen signatures. For the above said reasons, I am of the opinion that the disputed signatures are not made by the person who made the specimen signatures. Sd/- (C.V.Jayadevi) EXPERT." 8. If the hand writing expert's report is meticulously examined which is culled out supra, it is clearly evident that the expert has clearly opined that the specimen left thumb impression of Siddappa when compared with the disputed impressions, they are not identical to that of specimen impression and are made by different thumbs of different persons. Similar opinion is also given insofar as signatures found on the disputed sale deed. The expert having meticulously compared the signatures has also found that the disputed signatures are not made by the person who has made the specimen signature. 9. Therefore, this Court is of the view that the plaintiff has discharged his initial burden and substantiated his claim that the sale deed is created by false personation. To counter this evidence, there is absolutely no evidence let in. Apart from lack of rebuttal evidence, this Court is unable to understand as to what compelled defendant in not cross- examining the commissioner. Coupled with these significant details, the defendant for the reasons best known to her has not chosen to mount the witness box and therefore, an adverse inference has to be drawn against defendant. This is precisely what the Courts below have done. Both the Courts placing reliance on the legal evidence let in by plaintiff and in absence of rebuttal evidence have come to the conclusion that the sale deed dtd. 16/12/1989 is an act of false personation and therefore, it is a void document. It is a trite law that allegations of fraud must be substantially proved by a party making the same. But that does not mean that every puzzling artifice or contrivance resorted to by the opposite party should be unravelled. 10. The conduct of the defendant is also found to be very grossly unfair as stated supra. She has consciously not stepped into the witness box and she has conducted her case through her power of attorney who is none other than her son. 10. The conduct of the defendant is also found to be very grossly unfair as stated supra. She has consciously not stepped into the witness box and she has conducted her case through her power of attorney who is none other than her son. Having suffered decree at the hands of the Trial Court, she then chose to prosecute the appeal before the Appellate Court by filing the appeal in her individual capacity before the Appellate Court. Even the second appeal is filed by her in her individual capacity. Had she entered the witness box, the truth would have come out. The evidence adduced by the plaintiff coupled with the Court Commissioner-handwriting expert's opinion in the present case on hand, would clearly establish that plaintiff has succeeded in substantiating his claim that the sale deed was on account of act of false personation. 11. Both the Courts have concurrently held that plaintiff's suit seeking relief of declaration is not barred by limitation, more particularly, Article 59 of the Limitation Act , 1963. In case of instruments, voidable on the ground of fraud, it is the fact of fraud that entitles the plaintiff to get the instruments cancelled or set aside on such facts which exists on the date of the instrument; but the plaintiff may become aware of such facts at a later date. In such cases, under Limitation Act , time runs only from the date when the plaintiff becomes aware of the fraud. In the present case on hand, the allegations relating to fraud and misrepresentation is found to be clear, definite and specific and it is accompanied by particulars which are sufficient enough to constitute fraud of which both the Courts have concurrently taken notice of. The allegations of fraud in the present case are substantially proved by the plaintiff. As discussed supra, wherein the handwriting experts report which is part of record clearly establishes that LTM and specimen signatures of plaintiff on the disputed document are totally different and are not identical. Therefore, the concurrent findings recorded by the Courts below that suit is well within time referring to the knowledge of fraud on the part of the plaintiff is based on record. Such findings recorded by both the Courts below in regard to limitation does not warrant any interference at the hands of this Court. 12. Therefore, the concurrent findings recorded by the Courts below that suit is well within time referring to the knowledge of fraud on the part of the plaintiff is based on record. Such findings recorded by both the Courts below in regard to limitation does not warrant any interference at the hands of this Court. 12. These concurrent findings recorded by the Courts below does not indicate any serious infirmities or illegalities. No substantial question of law arises for consideration. 13. Accordingly, the second appeal is dismissed.