Ashwatthamma vs Smt Ramakka on 29 November, 2010

[Cites 6, Cited by 1]

Karnataka High Court

Ashwatthamma vs Smt Ramakka on 29 November, 2010

Equivalent citations: 2011 (1) AIR KAR R 829

Bench: Anand Byrareddy

IN THE H10}-1 COURT OF KARNATAKA AT
BANGALORE

DATED THIS THE 29"" DAY OF N0vEMBE,I<s i20§'¥s'Q'O"s. N

BEFORE

THE HON'BLE MR. JUSTICE:AN'A~ND i3Y:R.AR:E«:DDVY:.

REGULAR SECOND 'AWEAE ND. 1s6sD::%20()s 

BETWEEN:

Ashwatthamma,  '
Aged z1b0ut_5ﬁ'«ye'_a.1's,  I 
W/()G.N.<R:*am23ijéh_, .  2  
Resident bf G4a:aVdé'ig(1d4d'iE';.'-    E ; A

    "

 V ...Appe}Eant

Kolngitagelfé "TQ.1llk.'

(By    Advocate for Shri. BC.

Rajeeva,EAdv0cat¢)AI_ E 

        

" Ag£:_cf'~;1VbV(>ut. 50 years,
.~W Doddaiah,

 AA  H  Doddaiah

S/0 Vee1'z1n.z1gappa,
Aged about 55 years,

'E Both Resident of Das31'ah:.1Hi.,

Kasaba Hobii,

3



Koratagere Taluk -- 572 E29. ...Respondents

(By Shri. G. Balakrishna Shastry, Advocate for Respondent Nos. 1 and 2) This Regular Second Appeal is filed under Sectio:ri"»l_.00 of Code of Civil Procedure, 1908, against the judgrﬁe-n.t"and decree dated 05.10.2007 passed in R.A.No.433/200~4é;on the ﬁle of the Additional District and SessionsjJurlgeg' 0 Presiding Officer, Fast Track Court--l, Tu.mk11r,"disﬁmissingpptire appeal filed against the judgrnent"' and de.c.r"ee_ vdated'. 03.06.1998 passed in O.S.No.58/19,89 :on..t'he'frle~ t1ic:'Cii?ii_:

Judge (Jr.Dn) & JMFC, Kor'ata_gere. '-

This Regular Second coniin_i;"'on-Z Hearing this day, the Court deiiyered the..foi£oW--i_ng: -- 0' ' V. lPlea'r*diithe iéigafmed for the parties. 02 V' The ar'e.:r'eferred to by their rank before the tria1'cour't. .0 r-ltlwas the plaintiffs case that the suit property 00 r lheionged to defendant no. 1. Befendant no.2 is the ~. defendant no.1. Defendant no.1 had agreed to sell suitaproperty for a sum of Rs.5,000/-- to the plaintiff and 2 had' received the entire sale consideration as on 30.7.1980 lﬁand the sale deed was executed on a stamp paper of Rs.500/--.

'"{'h_ere was an attesting witness in respect of the sale g transaction. It is contended that since the villagers of Garagadoddi were agitating against acquisition of -"some portion of the suit property and their petitions in....t.his..i'e-gaiilc. were pending before. the competent a1tith()r'iti,es;».they were' opposed to registration of the sale;t1'ansactio'a, 1 The land_ was.' also the subject matter of=.acqL1isit_io1; p1olce'edi_nVgs and therefore, the sale deed Ct)ul(l__liIi:}t':)'~£.:l;)Cv._pt'eglist61ie§l:: ppvvlleiowever, the plaintiff had been enjoyirlent of the suit propert§_/'V she In this regard, the pl.aint:iff w.ifit..p'etition which was ﬁled before this court in its writ been allowed and acquisition ppgceedingls '-having quashed, the plaintiff claimed that A ha:s.Apei'fr;>.1fined his part of the contract in having paid the ' ~. entire' 'consideration and she was ready and willing to have the document of sale executed in her favour. The first 'defendant inspite of oral demands had failed to execute and register the deed However, the saie deed was sought to be treated as an agrcemerit of sale and a legal notice was 2 4 issued calling upon the defendant to execute the sale deed. The defendant haviiig replied denying the execution of the sale deed, a suit was ﬁled.

The suit was resisted by the defendants who denied the sale transaction and the plaint ave1'inents..,_'»It*-was, incidentally contended that the first defendant no,ti'tle it the suit property inasmuch as a porti.on of the' Hi had Vested in the Government and alienatiorI._ of i"s:1C'i1f'-l.ai'1*c1ii_' being prohibited, the sale infayoui' ﬁi'st.vdefe:iidani;:

Nagarnma was only nominal and."'the1'efoi*e, sheiiwas not the owner on the date of the alleged sale transaction in favour' 'ofiithe. "plaintiff. .. Ibncideii-tially,'ii respondents had in turn ﬁled yet «slime;-is, gimp in O.S.No..1()7/1989, for declaration and the defendant herein, who was the plain,tiff,ethiei'e, claimed the relief of declaration that she was Aitlltl-.,'()Wl3€l' of the suit property and for permanent injtmetion restrzlining the appellant - plaintiff from interfering with her possession. The trial court had clubbed the said suit along a with the suit filed by the plaintiff herein and following issues were fraIned:-

Issues in O.S.58/E989 7*...

Whether the Plaintiff proves that defendants .r..ec-eiived Rs.5000/- on 30.07.1980 and agreed to K schedule property to her'?

Wh€th€1' the Plaintiff p1toV_es.. that if in if possession of the suit schedule propetr'tyf? "W ' Whether the suit is not.in-i_t_ime'?f' Whether the suit is not niaiiii';tainable?." _i Whether the 1~"~.Ei'et;e:t_aattt;t title to the suit property'? ' 1 V'.._W'hether"the._l'l.aiittiff "entitled to the reliefs sought for?' _ What 0 1 ;t_§f)D_ii'ffI0iNA,[, ISSUES HWh'e--.th;e-.ri the defendant proves that the plaintiff get _u1'1faift" advantage over the defendant if specific .. perforinance is granted?

Whether the document dated 30.07.1980 is not enforceable in View of the provisions of the Registrati_o13Act'? g Issues in O.S.N0. 107/1989

6.

Whether the plaintiffs are in lawful possession of the suit land'?

Whether the defendant prays that in puI'sr.1aiice'e-titre.' contract of sale they have been put in p<)ss'e--ssi()n rjf-the.s * suit property'?

Is the suit not maintainable'?Ib Whether the description. of theiplaifnt scl':ed':tle.propleifty * is true and correct'?

Is the alleged i.nt'e~:.-.ferenc'eiitrue'? To what reliefs are theyPlaintifﬁeintiitled? of the pleadings, the evidence'and'vthe-._ina.teii.;ti documents, the trial court has held itiha't"'*th'e execution of the sale deed was not i dithered in the course of her evidence to li'i_1ti3:i~v'SiihI}i1lul'6S and to state categorically that the sale r was executed by the defendant. Secondly, the trial court i found that there was inconsistency in the evidence of "PWs.2 to 5 in asserting the fact that they were witnesses to 5 the sale transaction. Further, insofar as the evidence of the court commissioner is concerned, who had in his repo1"t,'s'tated that on a comparison of the signatures of the first de--fe_i'rd.ai'trt the sale deed, which was said to be treatedas».aij~.agreemen,_tii of sale and having held that the.__ sighat3a1'ec:;,iwere i'tli'a--t, defendant no.1, the trial courtlias disbelieved his e,_vi--d.e.nce in = the circumstance that __he expert, who continued to iitheii' even after his retirement report as well and it i_s tliatiiitl,ie'~'trial court rejected and sale transaction was not establiiished. has also held that in View oféthe _docuim'en_ti'soug,lit to be specifically enforced being a A 'sale .lia-wing regard to its tenor, the question of speciﬁc 2peIifo1'inaineeiofi a sale deed required the defendant to execute and 1je;g.i.ste1' yet another sale deed which would not arise, and Vthewrefusal to register the sale transaction provided a remedy tinder' Section 77 of the Registration Act, 1908 (hereinafter referred to as * the Act' for brevity) which the plaintiff ought E to have availed of, failing which, the time for registration of a sale deed also being prescribed under the Act, the su'it'*was hopelessly barred by litnitation and therefore, the riot maintainable. It is on these primary iinditigs-,.--tif1ttt "t~h:e«tria__li court has negated the suit of the pla,ii1ti:fl'a .xiJhi'le_idec1feeiin'g_'the' suit of the defendant in O.S.l'«Io.'1-.97/1i§89l' V Insofar the disn1issz1liiji_iof,,the__suiit.of the plaintiff is concerned, an appeal appellate court and the lower appellate,' the following POW for trial court erred in holding', enforceable document by virtue ofthe p:'ovi~sions 'of the Registration Act. Apart from if " _ t1..{i_si'i~pQ--int for considaatiori, no other point was framed by the 'I'io_\5ve_r:appellate_:,.co1ii't. The lower appellate court, however, p1*-Qceederlifto hold that from a plain examination and ,,coinparison of the signatures found on the agreement of sale '._or the sale deed and the admitted signatures of defendant "no.1, though there was no much difference between the fa 9 signatures, there was slight variation in the two letters of the alphabet and the1'efore, it could be heid that the signatures were not proved and further, the lower £lpp€i~i£1i'[_j€v..__iC'L§'L11ii aftirnned the finding of the triai court that not i maintainabie in the Eight of section=._v77 of an appropriate remedy ai1d"tha.t not n.;1ving beet: exeV1f('.i1sed, --. L' the suit for specific pe_1'fo1*n1an=c.ei:' ~w_a's.._not 1t1E1'i}1[§1il}?.i3i€. It is this which is sought to q'uestio'tied ihi_t11ivs"~second appeai. Incidentzi1iy..e._ tiled-agztirazstiithe judgment and decree izn" V. 'said to be pending consideration iibeifo.1je=the,_:1o'wei' zippelfate court, even as on date, in iiA.i-io,i2t)0'Lr2oeo.

Thei"1e;trI1ed Senior Advocate Shri S.S1'ee\/atsa, ' V.Vi:1p.pea1f'i'r;g'for the counsei for the appeiiant, would contend ii that apurtiiti1f'ro:t*n the substantial questions of law which have been ttamed by this court at the time of zidmissicm, namely» (_l) Whether the courts below have committed an error in (iismissing thegit for spe-ciﬂc performzmce by IO holding that :1 Suit was not mdintainable in View of section 23 and section 77 of the Registration___Act and (2) Whether the courts below have3i_:Hpe1've'rse}y.T. appreciated the evidence and ha_v~e--»cofm1T1itted and error in coming to the conclttspion;that'tAhe--._doct.1pineVnt f Ex.P.l is not proved, more?.pa1ticularly;_ noticing the evidence tendered b expert. gird the oflseztl by the said expert in----the-.1r§anner in'which it has been done'? i V A the t'ollowing' iattid.titi_t1ni;l s'itJb'Stan't'i;il"*q'ue--stions of law would arise for co--nVsidie:ijt;ttioi1:i'~«:liiii.' pi below are right in not noticing --1i:ii1'eg'iste1*ed sale deed can be enforced afri .agree'n'i1ei'1tii of sale provided plaintiff the ic'ou.rt..within time'?

,2; W:hethe1' the eouit below are right in holding ._tli.a_'t«thef§_oit i~§'not maintainable in view of section 23 and 77__'o}7the Registrati.on Act '?

" .3_7' Whether the courts below erred in not .reljk'i«ng on expert evidence only because he had used he seal which he was using while in service?"

é II In this regard, the learned Senior Advocate would place reliance on a judgment in the case of K(zlavalmrn' Venkam Subbaia/1 vs. Bald Gurappczgari Guruvi 1999 SC 2958 which has been referred to and h' later judgment in S. Kczladew Vs. SAR (Civil) 457. In the first of these was whether the respondent w'ho"had filed. ai"saL:i3t foiff speciﬁc performance on the ba'sis..of sale" d_ee_c1' ~,seeE,<ir1g a direction to register the same _.a.r1».ci=,io1T .po:ésesVsior1"' of immovable property, tr1air1tai'nah.iei. iVStipire'm_e Court while addiessirigcleavagexof opinion as between the Various High Courts 'Q_ri~--.ti1eW'q1ie:;ti0r1 whether such a suit was maintairnable, held" as foll0ws:--

' Scmfiorz I 7 of 1908 Act is a c1.'isablirzg "The ci0c.'um..senI.s' (Zr;/i'nc*(1 in C lcruses ((1) to "fi;lE?f'('iII r'€c]m're r'egi.5'n'cu'i(m c:'0mpul.mr'ily. . 'Acr('()r"dirzgluy=, sale of imninvabie property of the 1=a.iue 0fR.s". 100/-- and rnore mq:.1irce..s' chomp11l.s'()I'iiy r'egi.vII'afi0n. Parr X of the 1908 Act rim/.s' wzrlz the c{ﬂ&?c.'t,s' of r'egirs'tr'(I{ir);I and rmr:--r'egi.s*zt'c1ti()r1. Sc)(.'{ir.>r:r 49 giim' Mark I0 Secrion. 17 by pmiticiirtg gr c{)f7"c>('I Qf non--r'c%yistr'rzIimz Qf(1()£.'m'?1('.F'Zf'.§' r'equiI'ec1 I0 ['99 re? >I'.s'l€I'€t1. Scrriorz. 49 reads' I/'.!.u.s'.' 5 "S.4.9--Eﬁ"€rt of mm«J-'egi_s'Irc:1'i0n of (f()(.'I(f7l8IIIf;»,'~.V"' :-'cJ(;:.z:'r'e>c/ to be !'£'g';'f.\'f('!'('d -- N0 c10c'.z.uncJnf rc%qu;i'i'e'c!..' j"

by Sec.'tz'0n 17 or by any prrJw'.s'ic)t1.s' Qffhc,' Tl"(ii1..}_'/'C':?:' "~ of Pr'()[)ce1'r3,.r Am, [882 (4 nj' -1.882-'_), _z,2$ﬁ5e_ "

nJg1'.s'IercecI .3'/mil --

((1) cgﬁ"ec.'t any zTr7'11'Iz(2vtab_Ic* [)r°(i;r.c3riy c'()r:=.Ip}":',5.:4c[ _§ therein, or (la ) ctr);-zﬁser {:12}-=r;)z(:14¢'er* r(i"as3(j]2l. 677 (C) be r'ec'ei1-=ec'f*(I.s{ --.'a1-'iJ_'eri:--c*e]- (;j"a}:3,; fmrz.s'ac'Ii(m (zj]'ec_r1'ir1g «S'I,-££~'.l?.j?i'"'6);)Vé'FI_}',Of' t'()rq/."e.tf}«'fng{ .mch ;[3()1§:'T1':-'.' _ Ur:.[é;S"Ls' .'2( 1zcisifb<aé'r:.1fi§gz'$'IbereE2'. ' " P.'f()1=z'(1'«.2(! .4;/mt r.z_n-- m1reg1'sIer'ecZ d()cmner1t (;fj"ecrii1g. EJ1127101'i1:'5_[é"p('(--pe1'13.' and rcqmwa.' b__v this Ac§2%'.g;~ me Tr-¢z.r;.s;m?..'L'qr Property Am. .1882 (4 of V 1882), rb~1':7_{ce r'ergz'.§'rerc*d ma),-' be rc<'c'm'Vrec1 as €vz'clenc'e av" ".f:()I1.!'I'(I('I in a Sui: jbr .s'[)cc".g)"ic [)('I_'f()I'm(H1('€ " T. :_';;.:g::1c.};1=' C/z";;..:,a;:-e;~ 11' Q/'1'/19 .S'pe(.'a_ﬁc' Reh'ej'Ac-I. 1877 (3 of 7% or ax ew'(ler1c'ra (gfrzny c.'o[lcm>ral rrmzs(zc'li()iI "rant H' ' reqmrcd to be c§}f""ec:'Ie(1' by r(»gi.s'ter'ec/ "a?n.s'Imrr2zmt. "

1]. Tim main ,r)r'01'zIs'z'0n. in Secrirm 49 /)r()1."£(icJ.s' that c.zny a'()c,'z.:n-'ml! L-1--'hie'/1. is mquirml to be regz".s'Icm(I, 1"/'not mg:Is'tc*J'@(l, .3"/ml! not aﬂe(.'!' ('arty 8 (.'}1ClI"(.'i~('fC'.':'"' the g_J('2;s;s5 Lz'J2':ircd.' (2008) 8 SC C 564, this C mm' n0ri('ed the _/E>JI(>wz'ng .s'Iczre:-nwzr of Mulla in in'.s' Im[z'm;.._ Regi.s*r1'czti0;zAC1', 7m Edirirm, at Page 189:-

''...The Higfw C0m'Ls' (3/' Culcutra, [:' dirr1:c;}j; Allafzabaa', Maclms. Puma, Lztlzqric, A.s',s'(z'15z;'fv'czg;9z.£f"; Pepsu, Rqjczxflzczn, OnIs'.s'c'z, R(.i:1g()(g.£!,(1:?1(f --TT..]c:11:{iré2:4 'cf-T4 Ka.s'l2rm.'r,' Ike fbrnzcr C/ricff Cr2.:£r?'~..()_f" O;4t(fU1,f. "rile Jucl:'c:'a1 Comm:'.$.¢i()rzer'.s' 'Com': ar Pe:'.s'l:a;~m}'_, A]'--.r11c§f and H1'mar.'lza/ Pr';/c[e.s'/2 (1r2;Z_}('j.ez_Si.igzrc.r11é Cou_rfr fz:':rw held than (21 (!r)(}w::;2..V(}:r'-1;' ¥'f,"}Il'(;{:'fi.Hf;E'{{Vl(.1%(l»\," regzIs'1'rr.'zfr'()r'z Lmder .s'e.Cn'0r: 17 g.;_r.EI -nohf 'V(;Vi.'(f'I.?¥i.S'.3'l.]9/6 for warn' of r'z§gi;$Ir'c:I£§)r1 {4} (5? mortgage or .s"a[e_.c2;9'2'<:ct.§5.(3.. 1*1'a'1.ie:yr}z--::[e.s=$' a r_i:mT._s',§'1'b[e to prove the »:s'z':.>I__1 of ﬂue permn. who /1016/.3' u.=1clef T/'1V::.€ C.r)zzr;I._ IF..e}1'«...{'z.zl[e(l our rim followmg V p.%"iI':c'[p .'.._g V '.-_r 5 "I « _is4;.var4»gi.s<1¢>}~g.-ac] is not u(Irni.s1s'z'blc.% into evz'c[e1'z<.-e under Set'???/f!'t.£19 nfrhe Rc?g:Is'I:'('z.Iz'()rr Act. a 1' Sm-:1: l.£ftf"€gLS'I('f'C'(1 docrumenr can /'l()11»'£'V('.I' be u.s'ed as' an ceviderurc» Qf ('0llar€ml pm';)0.s'e as pm1'iu'€c/ in five prm-=i.m to Sc>cr1'r)Iz 49 Q/" the Re gi,s'Ir'cII[();-1 Am'.

6

1. H d()cun2€m requiretl to be r'€gL}s'rerced, if

3. A c'0[later(zl I1'c1r1..s'(tc:I1'cm rntm' be independent ofor (/iw'.s'1'bie_f)'0m, the mt)-1.s'c1eIz'0:-I I0 eﬂecrr 1-1,'/-'z.1'eljz._._ the ltzw r'eq1ti:'e(l reg1'.s'IrctI1'mz.

4. A eollrzzeral Ir(m.s'cic.'t1'0n. musl -f::I2(ev rr(m.s'ac.*Ii(m not t'fs'e{'f' I'eq1{z'1'ecl,A1p_be registerecl a.'0cmnemr', rim! is, ittr'(1;2.sttc]?Iio.r1 eijjetz-!if1g:i.:"-L__ etcz, any rigltt. title or z':1Ie;?e.rI7._ in 1'i2ti't::):i?(tfi'lc» pr0pert'__\* of the value c)f,_0}';.e hz.mcfr'e(1 '."3t1V]5L_'.,'.(4.Si"':v(IIi1iF(ii27 up wards.

5. If a c/()(:m71enr.n_i.é' I'i1"rflcj.'?f.'.iI'lS'.S"lililiilﬁiif] iezjirien Ce for want of _:fe;;;i.s*tr'ezfiof1,' 1'15' 'v:.ti(:'iritr:.s' ccm be c1dInt'_[re_(l i.ite1.:?'icf:%i'i.;'cJicytti I'_;_'7...;zI:,;-- to doezmzentfor I'fzeiI'2i4rr1r;i_i)t;§_e ﬁlI'Z"iIi}?'li1i_l'3;'(tili"IcIiIl clau.s'e would has ill; '(?.S":ii('i lctrerttlijéiitrp axe. "

the one more principle may _ _v be icik.£:1etz',V :'?.c.;411z.eFJ',ii'f/i:zczI cl c/0c'z.m1em r'eqz.zir'ed to be V1'egi,s'tei*e(/;" WT m1reg1Is'Ier'ecI, ('cm be rldmiftetl in U . . . . ..

_ c<*..{ic2'evri"c~-':9 as evicleizcre of (1 crrmrrczcr in a .mif for it " -ls'j§£%_ci'if 'f;?t?fft)rI?'l(II1('6.

" The learned Senior Advocate would submit that this 'dec:.i--'si()n has been referred to and followed in the latter i ..._.:}udgment. Suﬁflct: it to say that it is only when l.'€giStI'Ei[.i0l1 is refused by the registering authority under section 77, that it 3 16 could be said a remedy under section 77 of the Act would have to be invoked. The larger relief of seeking speciﬁc perforinance of the agree-nient of sale, even though..'4 the document is styled a sale deed, is not tai<en__-.~;:wz1y";« is ~ law as lai.d down by the above deCisAi.'on,A in theéllinstaiit V notwithstanding that the documentltips ias._a-stale the relief of seeking specilic'l"performance the said document cannot be s.aid..to belntinavailable as laid down in the above decisions which has .not'_bcien-"brou'ghtl--~t() the attention of the courts" . i§Fhe_re'fore,.the'"point for consideration which = b._\/lithe lower appellate COUIT against' the appellant'-xv_ou_lld'have to be reversed. l " Furth'eiﬂ_heVlwould contend that even if it could be said t_he_circumsta1ice that an expert witness had utilised the 2 seals ii office after his retirement, the correctness or otherxlvitsell of the report being negated on that ground was : totally out of place. Even if such witness was liable for criminal prosecution on account of such illegal use of t)i"l'"1ce seals, the evideiitiary value of his opinion could not be 8 E'?

summarily negated on that count and the learned Senior Advocate would submit that on these two groundsﬂtgthe substantial questions of law would have to be a*nsvv'er_eid£' favour of the appellant and the appeal be a1i0'Vv"C§:.::",v

4. While the learned counsel.vdappeaifinpgv ifoirqitiieii' respondents would vehement}3;«.e.se.el< toijustitlythe of the courts below' the material evidence and. parties to demonstrate below are findings of agreement or the sale dee§17,g/alt and that not having been discharged-to of the courts below, would be a has 'iesuited in the suit being dismissed. This give rise to any substantial question of law. incidental iv; it the opinion expressed insofar as the suit for nspeciﬁt: "performance not being maintainable in respect of a i*-sale" deed and the evidence of the expert witness being

-"negated would again be incidental since the primary 3 18 requirement of proving the sale transaction was on the plaintiff and in that reg.a1'd, the plaintiff hzivingiailed miserably, it cannot be said that the courts belov1__i_have committed any error which warrants this C()L¥l"£..f.(,)1:Ei(;idifjSS._as l substantial question of law or which iwotivldl2t:eq.ui:=e 'that_.tl1;eA judgments of the courts belotvb-eppprevetsed on

5. Given the above -wud the question of law as tt)iw'hetl1elf ispaéific performance was 1naintaina§)'l'ev_.i11 the question. being executed of the same not téajiious reasons would disentitle thepplainitiiff to speciﬁc performance need not Cl:¢jl'£ilrj..,u'[lll.S couirit"f-3-:*«'l<)1ig having regard to the law as laid "_Supreme Court in the case of Kalavczkurfi i/..'er1/cctftz Sit.-'3I9ctial1., supra. Therefore, the finding of the courts AA below...that such a suit was not maintainable cannot be iK_ilsustained. Secondly, insofar as the rejection of the 'iCommissione1"s Report to the effect that the signatures 6% found on Exhibit P.i were that of defendant no.1 having been negated is not tenable. Even if the said witness was gtiiity of having utilised oftice seais which he was not eiitit-E.ed.to 'do; the validity of his report could not have off-i' i hand. Insofar the tenor of O1_'de_r 9 XXVI Rule 10A of the Co-tie'4--o__f Civil i_'Pi*t)ceic1:iii'e.'~l_9OE?i is concerned, these are provisio_nsiii:A'vvl1ic.h enabie._Athei§coti1't to seek the assistance in order to conduct a adjudicate the dispute an enabling provision It is not a right conferred hp on the application of a party if a commissioner" appointed. If for some reason, the report was not acceptable and the court rejected the same as if it is 'teinderied. plaintiff, though the report of the Court C'ornini4s'sio:ie;-'..~t'orms part of the evidence was out of place. lithe c.o:.11_'tj.has not been satisfied of the expert's evidence, it was '~i{1C1.'.lIT3ber1'[ on the court to have appointed another it Com_missio1ie1' in a serious dispute such as this. The expert 8 20 had opined that the signature on Exhibit P.l was that of the first defendant, and this was all the more the reason vfo'r.gthe court to have appointed yet another court c()m1n:i's's--i«On~'3?1" l:l?';_.itl was so warranted. The rejection of hiszv----»::epoi't'*~..iri.Athe circurnstance as aforesaid results in a,1-ni.S--carn:?iage"ofj:i'sti_ce.;"

The incidental i_11sufﬁciency the evidence _t)i'..PV't['.':l,yin: not * V being able to assert categorica.l.1yA' to the e'xecut.i~on of the document at Exhibit P.by"the.f§1'st detﬁevndaiit could not also be a ground _to':ne'gate{the§entirentransactiien. When a suit is brought P.l with express pleadings to effect;'«v.bungling by the witnesses i_n the witness' box, whichinay---_have been on account of so many facf;o1"s,..co1ild.._notl by itself negate the entire express oftihe party and the documents which were placed H ~.be'fo1'e.Vth:e'g~.cotirt. The further negation of the evidence of PWs..2l'to 5 is also not readily acceptable. In any event, the istii't~«_ﬁ1ed by the defendant having been decreed in favour of the defendant and that pending consideration in an appeal would require that the present suit be remanded to the lower E appellate court for a fresh consideration along with the appeal that is pending and if in the event that theflowe1' appellate court should feel that the trial court rejecting the Coinmissionefs Report, it would».he~.in'c~Limbei1t4 on the lower appellate Court to a_Vpp.r.-:lint"ee»._ lariotheii' Commissioner to obtain his'it)pi-nzioii, as to.the..vsig_natVurels of * V the defendant said to l'()u'lEi....iilil.E>iitl»l3it 'vvandiito frame such other points for would arise having regard this court in the light of decide the appeal afresh in the pending appeal in it 4;. .. the appeal is allowed and the judgment ,' and de'ciiee.of,the lower appellate court is set aside. 3 d 5;"

EDGE.

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Karnataka High Court