Calcutta High Court (Appellete Side)
Sri Bhabani Prasad Basu vs Smt. Hari Dasi Paul & Ors on 19 August, 2011
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. No.351 of 2007
S. A. T. No.2006 of 2006
Sri Bhabani Prasad Basu
Versus
Smt. Hari Dasi Paul & Ors.
For the appellant: Mr. Susovan Sengupta
For the respondent: Mr. Jahar Lal De
Mr. Guru Saday De Heard on: 28.07.2011 and 01.08.2011 Judgment on: August 19, 2011 Tarun Kumar Gupta, J.:-
This appeal is directed against judgment and decree dated 31st day of March, 2006 passed by learned Additional District Judge, VIth Court, Alipore, in Title Appeal No.46 of 2005 in affirming the decree/order dated 23rd February, 2005 passed by learned Civil Judge (Senior Division), 9th Court at Alipore, in Title Suit No.24 of 2004.
The appellant plaintiff filed said suit for specific performance of contract. Appellant /plaintiff's case, in short, was that he was inducted as a tenant in the suit premises by Laxmi Kanta Pal, predecessor-in-interest of the defendants with a 2 permission to develop the land as well as to make construction thereupon for business purpose. The tenancy agreement was executed in 1976. The plaintiff developed said land and made permanent structures for running his business. In 1986-1987 Laxmi Kanta Pal approached plaintiff for purchase of said land. Though plaintiff was agreeable but Laxmi Kanta Pal demanded excessive price. To put pressure upon the plaintiff Laxmi Kanta Pal filed a Title Suit being No.228 of 1987 in the Court of learned Munsif, 2nd Court at Baruipur for permanent injunction and other reliefs. Said title suit was later transferred to the Court of learned Additional Munsif, 2nd Court at Alipore being renumbered as Title Suit No.160 of 1993. However, in the last part of 1992 there was a settlement in between plaintiff and Laxmi Kanta Pal regarding sale of suit property to the plaintiff and accordingly a written agreement of sale was executed in between the parties on 11th December, 1992. Though Laxmi Kanta Pal received Rs.5000/- as an earnest money on the date of execution and also received a further amount of Rs.5000/- on 26.03.1993 but sale deed was not executed in spite of request by plaintiff. Laxmi Kanta Pal ultimately died on 17th July, 1993 leaving behind the present defendants as his heirs and legal representatives. Plaintiff approached the defendants time and again for execution of said sale deed in terms of the agreement but without any result. On 24.05.1996 the defendant No.1 flatly denied to execute any sale deed. The plaintiff was all along 3 ready to perform his part of the contract and hence was the suit for specific performance of contract.
Defendant No.2 contested the suit by filing written statement which was adopted by other defendants, denying material allegations and contending inter alia that Laxmi Kanta Pal never approached plaintiff for sale of the suit property and there was no agreement as alleged. Laxmi Kanta Pal filed an eviction suit against the plaintiff on the ground of default and other grounds. In order to delay the eviction the plaintiff has falsely made out the story of execution of an agreement of sale by Laxmi Kanta Pal.
After contested hearing the plaintiff lost the suit. Trial Court opined on the basis of the report of hand writing expert and other evidence on record, and circumstantial evidence that the signature appearing on the alleged deed of agreement was not of L. K. Pal and that the facts and circumstances was also against the story of execution of alleged deed of agreement of sale by L. K. Pal in favour of the plaintiff.
Learned First Appellate Court came to the same conclusion and dismissed the appeal.
At the time of admission of this appeal following substantial questions of laws were framed by Hon'ble Division Bench.
(a) Whether both the learned Courts below committed substantial error in law upon relying on the opinion of the hand-writing expert. 4
(b) Whether both the learned Courts below committed substantial error in law upon accepting the opinion of the hand-writing expert who expressed opinion after comparing the signature of the deceased landlord with the xerox copies of the documents.
(c) Whether the opinion of the hand writing expert in the present case is admissible in evidence.
At the time of hearing of argument another substantial question of law was framed which stands as follows:-
Whether both the learned Courts below committed substantial error of law by passing judgments based on no reliable evidence and on surmises and thereby the judgments became perverse.
Mr. Susovan Sengupta, learned advocate for the appellant has assailed lower Courts judgments on following scores:-
(1) Learned Lower Courts gave undue stress on the report of hand writing expert, but the report of expert was not based on admitted signatures and was rather based on xerox copies of documents.
(2) Though one Partha Pratim Dhar deposed as attesting witness of said agreement of sale, but learned Courts below brushed aside his positive 5 evidence only on the ground that he stated in his cross-examination that he did not know the contents of the agreement.
(3) Learned Courts below gave unnecessary weightage to the circumstances namely filing of suit for injunction as well as filing of ejectment suit by L. K. Pal against the present plaintiff, though in fact L. K. Pal filed those suits just to put pressure upon the appellant /plaintiff so that he can be compelled to purchase the suit property.
(4) Learned Courts below have dismissed the plaintiff's claim on the ground that plaintiff was not able to prove his case beyond all reasonable doubts though in civil cases the Court has to consider preponderance of evidence and the question of proving beyond all reasonable doubt does not arise in civil cases.
(5) Learned Lower Courts wrongly held that as the plaintiff did not move any higher forum against the order of forwarding unadmitted and xerox copies of documents to the expert for comparison, the plaintiff was estopped to challenge the said act of Court at a later stage, but there is no estoppel against a statute.
In this connection Mr. Sengupta, learned advocate for the appellant, has referred a case law reported in 2011(1) SCC 158 (D. R. Rathna Murthy vs. Ramappa) to impress upon this Court that even in the second appeal there is scope of 6 reappreciation of evidence on record if it can be shown that the decision of learned Lower Courts were based on surmises and conjectures. In this case Hon'ble Court held that "High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the Courts below are found to be perverse i.e., not being based on evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided."
Mr. Jahar Lal De, learned advocate for the respondents, on the other hand, has supported the judgments of learned Lower Courts on the following grounds.
(1) The hand writing expert compared the disputed signatures of L. K. Pal on the alleged agreement of sale with admitted signatures of Sri Pal as marked A/1, A 1/1, A/2, A/3 as well as with A/4 and A/5 which were original signatures of L. K. Pal on office copies of his letters written to some other authority during the period 1992 - 93.
(2) Though the letters bearing signatures marked A/4 and A/5 were office copies of the letters issued by L. K. Pal to different authorities, but signatures appearing thereupon were original signatures. Said documents were produced in Court by the son of L. K. Pal, since deceased, through an affidavit and after contested hearing learned Trial Court forwarded those two signatures marked A/4 and A/5 along with 7 other admitted signatures to the hand writing expert for comparing with disputed signatures appearing on the alleged deed of agreement of sale. Appellant/plaintiff did not move any higher forum against said order of learned Trial Court. Appellant/ plaintiff is now estopped to challenge said order of learned Trial Court regarding sending of those documents to the hand writing expert for comparison and report.
(3) Sending of signatures of L. K. Pal since deceased for the period 1992- 1993 was required as the admitted signatures marked A/1 to A/3 were for the period of March, 1976 and the disputed signature was of the year 1992 and hand writing expert wanted some signatures of L. K. Pal for the year 1992-93 in order to study the extent of natural variation in the signatures of Sri Pal.
(4) In a case of this nature where execution of alleged agreement of sale is in dispute and the alleged executor is dead, the Court is required to take note of surrounding circumstances and circumstantial evidence together with the report of hand writing expert to come to a definite finding as to the genuinity of the signatures appearing on the disputed document.
(5) The filing of specific cases by L. K. Pal against the plaintiff/appellant/tenant, one for injunction and other for ejectment prior to execution of the alleged agreement of sale in 1992 rightly 8 showed that there was bitter relation in between Mr. L. K. Pal and the appellant /plaintiff/tenant and learned Courts below rightly noted those circumstances.
(6) The alleged agreement for sale prima facie showed that the agreement was heavily one sided (in favour of appellant/plaintiff/tenant) as arrears rents were waived, there was no claim for future rent, installments were allowed for long five years for payment of balance consideration money etc. (7) In an important document like the present one (alleged agreement for sale) it is expected that executor will put his signature on all pages and not only on the last page, to prevent fraud, but here only the last page bears the signature.
(8) In an agreement for sale the presence of attesting witness is not required but still one attesting witness was produced to prima facie show that appellant/plaintiff/tenant made grounds for preparing a document with forged signature of L. K. Pal.
(9) The evidence of hand writing expert and other circumstantial evidence outwitted the evidence of P.W.s including alleged attesting witness and learned Lower Courts rightly observed the same.
9(10) All these observations and findings of learned Courts below were findings of facts based on evidence and there was no scope of branding them as surmise or conjectures or perverse findings and that there is no scope of interference to those findings by this Court in second appeal. In support of his contention he has referred a case law of Smt. Kamala Devi Budhia and others vs. Hem Prabha Ganguli and others reported in (1989) Supreme Court Case page 145 wherein it was held that concurrent findings of facts of Trial Court and First Appellate Court are not open to interference by High Court under Section 100 of the Code of Civil Procedure.
He has also referred a case law of Kshitish Chandra Purkait vs. Santosh Kumar Purkait and others reported in (1997) 5 Supreme Court Cases 438 wherein Hon'ble Court held that unless substantial question of law is involved no second appeal should be entertained under Section 100 of the Code of Civil Procedure.
The most vital issue in this appeal is whether the report of hand writing expert was reliable or not. Said report was heavily challeged by the appellant /plaintiff on the ground that said report was not based on admitted signatures and was rather based on xerox copies of documents. It appears from the impugned judgments and case records that initially some admitted signatures of L. K. Pal, since deceased, appearing on Ext.4, Ext.3 and Ext.1 together with disputed signature of Sri Pal 10 appearing on the agreement of sale were forwarded to the office of the Government Examiner of questioned documents. Those admitted signatures appearing on Ext.4, Ext.3 and Ext.1 were marked A/1, A 1/1, A/2 and A/3 and the disputed signature was marked Q/1 by the expert. It appears from the letter dated 06.03.2002 of the hand writing expert that as those admitted signatures which were marked A/1, A 1/1, A/2 and A/3 were of the period of 1976 and the disputed signature was of the year 1992 (December 1992), expert wanted some genuine signatures of Sri Pal for the year 1992 / 1993 to study the extent of natural variations in the signatures of Sri Pal during said lapse of time (16 years).
Further it appears that the son of deceased L. K. Pal filed in Court two office copies of letters issued to different authorities by Sri Pal, one dated 31.03.1992 and other dated 10.05.1993 but both bearing original signatures of Sri Pal for forwarding the same to the hand writing expert for comparison with the disputed signature. Said two copies of letters bearing original signatures of Sri L. K. Pal were filed through affidavit asserting genuineness of those signatures. It further appears that present appellant/plaintiff raised objection as those letters were not originals, but the copies of the originals sent to different authorities, and prayed for calling the original letters. Learned Trial Court rejected said contention as original signatures which were appearing on office copies of letters will be required by the expert for comparison with the disputed signature along with other admitted signatures of Sri 11 Pal. As original letters were not required for the purpose of deciding the point in issue learned Trial Court rightly held that the original signatures appearing on those documents may be forwarded to the hand writing expert along with other admitted signatures of 1976 for comparison with the disputed signatures of 1992. The appellant/plaintiff did not move any higher forum challenging said order. Those original signatures of Sri Pal appearing on those two documents were marked by expert as A/4 and A/5. The hand writing expert thereafter submitted a report after comparing the disputed signature (marked Q/1) appearing on the alleged agreement of sale with all the signatures forwarded to him namely Ext. A/1, A 1/1, A/2, A/3, A/4 and A/5. The hand writing expert thereafter submitted detailed report as to why the disputed signature marked Q/1 was found not to be of Sri Pal. The hand writing expert was cross-examined in details but his evidence on the point of forming his opinion on the basis of scientific investigations, remained unshaken.
I find not the least illegality or impropriety on the part of learned Courts below for putting reliance on said report of the expert.
It further appears that learned Courts below did not dismiss the suit solely on the basis of report of expert. Learned Courts below considered the circumstances prevailing at the time and the conduct of the parties for coming to a definite finding in this regard. Learned Courts below took note of the fact that Title Suit No.228 of 1987 for injunction and other reliefs and Title Suit No.312 of 1992 for eviction on 12 the ground of default and subletting etc. were filed by L. K. Pal against the present appellant/plaintiff /tenant. It also came out that Title Suit No.228 of 1987 was dismissed for non-prosecution for not taking any step by plaintiff L. K. Pal as L.K. Pal died few moths back from said date of passing of order of dismissal.
Sri Sengupta, learned advocate for the appellant, has tried to submit that filing of those two cases prior to execution of the agreement of sale in December 1992 only supported the appellant plaintiff's case that those two suits were filed just to put pressure upon plaintiff /tenant so that he can be persuaded to enter into an agreement of sale to the advantage of seller L. K. Pal.
Unfortunately, this argument has no leg to stand upon.
It appears from the disputed agreement of sale that entire arrear rent was waived, there was waiver of future rents and the purchaser plaintiff /tenant was permitted installments for long five years for payment of balance consideration money. These very terms prima facie showed that those were against the interest of seller. This belied the story of filing of earlier two suits for putting pressure upon plaintiff/tenant to enter into agreement as per terms of Sri Pal.
In a deed of agreement of sale presence of attesting witness is not required. Even then there was an attesting witness (P.W.2) who claimed to be present at the time of execution of said document by Sri Pal, which was categorically denied by the respondent/defendant. It is true that attesting witness may not know the contents of 13 the documents in which he appears as an attesting witness but in the case in hand, not much reliance can be placed on the evidence of said attesting witness when it came out from the report of expert that disputed signature appearing on said agreement of sale was not of Sri Pal as well as from circumstantial evidence that there was hardly any probability of entering into such an agreement, the terms of which were heavily against the owner Sri L. K. Pal, when a bitter relation was persisting between the parties resulting which two previous suits were filed.
It further appears from the impugned judgments and case records that though learned Courts below used the term "beyond reasonable doubt" but learned Courts below examined the evidence on record as well as circumstances prevailing at the relevant time and based on their findings on preponderance of evidence. The findings of learned Lower Courts were concurrent findings of facts based on evidence and hence the same cannot be said to be based on surmises or conjectures, and perverse in nature. As such the case of D. R. Rathna Murthy (supra) as referred by learned Advocate for the plaintiff has no application in the facts and circumstances of this case.
Under the facts and circumstances, I am of the opinion that aforesaid concurrent findings of fact of learned Courts below which were based on evidence and sound reasoning, do not call for any interference by this Court while exercising powers under Section 100 of Code of Civil Procedure, 1976. 14
As a result, the appeal fails.
However, I pass no order as to costs.
Let the Lower Court records along with a copy of this judgment be transmitted to the Court below forthwith.
Urgent xerox certified copy of this judgment be supplied to the learned counsel /counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)