Madras High Court
Selvan vs Azhagan on 25 March, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.03.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.84 of 2009 and M.P.Nos.1 of 2011 and M.P.No.1 of 2009 Selvan .. Appellant vs. 1. Azhagan 2. Chinnathayee 3. Ponnan 4. Shembai 5. Chinnaponnan 6. Kenjathambidi 7. Madhaya Thambidi 8. Arjunan .. Respondents This second appeal is focussed as against the judgment and decree dated 20.11.2008 passed in A.S.No.4 of 2008 on the file of the Additional District Court/Fast Track Court No.IV, Bhavani, confirming the judgment and decree dated 04.03.2005 made in O.S.No.307 of 2003 on the file of the First Additional District Munsif Court, Bhavani. For Appellant : Mr.N.Manokaran For Respondents : Mr.S.Rajendra Kumar, for R1 J U D G M E N T
This Second appeal is focussed by D8 in the original suit, animadverting upon the judgment and decree dated 20.11.2008 passed in A.S.No.4 of 2008 by the Additional District Court/Fast Track Court No.IV, Bhavani, confirming the judgment and decree of the First Additional District Munsif Court, Bhavani in O.S.No.307 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The plaintiff filed the suit for partition of an extent of 9.59 acres of land into four equal shares and allot one such share to plaintiff and for obtaining other consequential reliefs.
(b) The written statement was filed by the defendants resisting the suit.
(c) Whereupon issues were framed by the trial Court.
(d) During trial, the plaintiff-Azhagan examined himself as P.W.1 along with P.W.2-Paramasivam and Exs.A1 to A12 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined and Exs.B1 and B2 were marked. C.W.1 Jayadevi was examined as Court witness and Exs.C1 to C5 were marked.
3. Ultimately the trial Court decreed the suit allotting one fourth share in favour of the plaintiff. Being aggrieved by and dissatisfied with the said judgment and decree of the trial Court, the eighth defendant preferred the appeal before the first appellate Court for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the trial Court.
4 Challenging and impugning the judgements and decrees of both the Courts below, this Second Appeal has been filed by the eighth defendant on various grounds suggesting the following substantial questions of law:
"(a) Whether the courts below erred in law and misdirected themselves in granting the relief of partition merely on the basis of the sale deed in the name of the plaintiff, in the absence of any other oral or documentary evidence of title to his vendor or in the absence of any evidence to prove the testamentary succession in favour of the 7th defendant?
(b) Whether the Courts below erred in law and misdirected themselves in granting the decree solely on the basis of the finger print opinion given by a private expert (C.W.1) particularly when her evidence is not trustworthy and expert opinion is not a conclusive one in evidence?
(c) Whether the courts below erred in law in disbelieving the sale deed executed by the court in favour of 8th defendant under Ex.B1 in pursuance to a decree granted in O.S.No.202 of 2001 filed by the 8th defendant against the 7th defendant for specific performance?
(d) Whether the suit filed by the 1st respondent herein is hit by the principle of constructive res-judicata in view of the dismissal of the suit in O.S.No.83 of 2001?"
(extracted as such)
5. On hearing both sides, I have been of the considered view that the following substantial questions of law should be framed:
(1) Whether the opinion given by the fingerprint expert as relied by the Courts below is unreliable because she happened to be a private fingerprint expert?
(2) Whether the judgment and decree passed in O.S.No.22 of 2001, which was a suit for specific performance, obtained by the eighth defendant as against the seventh defendant would be a bar for seeking partition by the plaintiff, and whether the Courts below failed to decide in favour of the eighth defendant holding that the present suit was barred?
(3) Whether the Courts below failed to hold the judgment and decree in the injunction suit in O.S.No.83 of 2001 as the ones operating as res judicata and that the present suit was hit by Order 2 Rule 2 of C.P.C.?
(4) Whether there is any perversity or illegality in the judgments and decrees of both the Courts below?
6. Heard both sides.
7. The warp and woof of the arguments, as put forth and set forth on the side of the eighth defendant, would run thus:
(a) The private fingerprint expert gave opinion, which is having no probative force of its own as per the decision of the Division Bench of this Court reported in 2008(1) CTC 97.
(b)The opinion of the private fingerprint expert is not trustworthy and that too when the burden is on the plaintiff to prove that the alleged Power of Attorney is executed by D7 in favour of P.W.2.
(c) In the suit O.S.No.22 of 2001 filed by D8 as against D7 for specific performance of the agreement to sell the Court ordered specific performance, whereupon the sale deed was executed by D7 therein in favour of D8, who is the plaintiff therein.
(d) Both the Courts below failed to take into consideration all these aspects and simply decreed the suit for partition accepting for gospel truth the averments in the plaint.
(e) The judgment and decree passed in the earlier suit O.S.No.83 of 2001 for injunction which was filed by the same plaintiff as against D7 and D8 herein, would operate as res judicata and further more, the present suit is also hit by Order 2 Rule 2 of CPC. Instead of filing a suit for partition, earlier the O.S.No.83 of 2001 for injunction alone was filed. In such a case, Order 2 Rule 2 of CPC would be a bar to the present suit.
Accordingly the learned counsel for the appellant/D8 would pray for the dismissal of the Original Suit and for setting aside the judgment and decree of both the Courts below.
8. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of D8, the learned counsel for the plaintiff/R1 would advance his arguments, which could pithily and precisely be set out thus:
(a) Nowhere under the law it is contemplated that the opinion of a private finger print expert should not be relied on by the Court, if it is otherwise in order.
(b) There is no iota or shred, shard or miniscule extent of evidence to show that the expert opinion was vitiated on any ground.
(c) The expert was examined as C.W.1, who with reference to the examination undertaken by her arrived at the comprehensive conclusion that the Left Thumb Impression of D7 as found in the Power Deed did tally with the sample specimen Left Thumb Impression of D7 taken before the Court as per Section 73 of the Indian Evidence Act.
(d) The question of invoking Section 11 or Order 2 Rule 2 of CPC would not arise, because the present suit is a suit for partition and the earlier suit filed by the plaintiff was only a bare injunction suit setting out a limited cause of action therein.
Accordingly, the learned counsel for the plaintiff would pray for the dismissal of the Second Appeal.
9. I would like to fumigate my mind with the decision of the Hon'ble Apex Court reported in (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
"19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread."
A mere poring over and perusal of those excerpts including the whole judgment would reveal that unless there is any perversity or illegality in the findings of the Courts below or that the Courts below failed to apply the correct law, the question of interference in the Second Appeal does not arise.
10. Both the Courts below no doubt, placed reliance on the private fingerprint expert's opinion and held that it was D7 who executed the Power Deed in favour of P.W.2, who in turn on the strength of the same executed the sale deed - Ex.A9 in favour of the plaintiff.
11. Indubitably and indisputably, incontrovertibly and ungainsayingly, or atleast undeniably, the following are the facts relating to this case:
The entire suit property as found described in the schedule of the plaint belong to one Azhagu Thambidi, who died leaving behind his four sons, namely (1) Puttai Thambidi, (2) Eranna Thambidi, (3) Genja Thambidi and (4) Madhayyan Thambidi and each one of them, was entitled to one fourth share in the said property which originally belonged to Azhagu Thambidi. D1 to D4 are the sons of deceased Puttai Thambidi. D5 and D6 are the sons of Azhagu Thambidi. The incontrovertible fact is that the said Eranna Thambidi disposed of his undivided 1/4th share in favour of one Muthusamy, who in turn willed away the said undivided share in favour of one of his sons, namely D7. It is the contention of the plaintiff that D7 executed the Power Deed - Ex.A8 dated 23.04.1997 in favour of P.W.2, who in turn executed on the strength of the said power deed, the sale deed - Ex.A9 dated 06.11.1998, the said undivided 1/4th share in favour of the plaintiff. As such according to the plaintiff he was constrained to file the suit for partition, as what was purchased by him was only the 1/4th undivided share in the entire extent of the property which originally belong to Azhagu Thambidi.
12. However, D7 would contend that he had not executed any power deed in favour of P.W.2 and consequently as a sequele, Ex.A9 is having no legs to stand; but he executed an agreement to sell dated 19.12.1998 in favour of D8 agreeing to sell his 1/4th share which he got from his father. It is therefore crystal clear that the validity of the power deed has become the centre of controversy and the decision of it in one way or the other would affect the ultimate decision. It has to be seen as to whether the power deed was proved in accordance with law. Peculiarly in this case, D7 himself filed an application for getting the purported thumb impression in Ex.A8 verified by a handwriting expert. Consequent upon the same, the private fingerprint expert Jaya Devi, by virtue of the Court order examined the purported left thumb impression as found in Ex.A9 with that of the specimen Left Thumb Impressions of D7 obtained before the Court as per Section 73 of the Indian Evidence Act. C.W.1 after taking photos of the relevant disputed alleged thumb impressions and the specimen thumb impressions arrived at the conclusion. Hence, I would like to extract the opinion given by her as under:
"OPINION I have carefully examined the specimen left thumb impressions of S.M.Arjunan are marked as A1, A2, A3.
I have also carefully examined the disputed thumb impression in Ex.A8 dated 23.4.97 marked as 'Q1' and impression in the thumb impression register Vol.No.151 page 22 as 'Q2' I have taken photographs of the specimen and disputed impressions on 9.12.2004. Enlarged photographs are herewith enclosed.
I have taken specimen impression A3 for the purpose of comparison.
Specimen impression A3 is compared with that of the disputed impressions Q1 & Q2.
On comparison the pattern of the impressions A3, Q1 and Q2 are double loop whorl type.
The trend and flow of ridges are similar in Q1, Q2 & A3.
There are identical ridge characteristic in their coincidental sequence in A3, Q1 and Q2.
The details are:
1. Core
2. Delta
3. Ridge ending
4. Ridge ending
5. Ridge ending
6. Ridge ending
7. Ridge ending
8. Delta
9. Core
10.Enclosure
11.Enclosure
12.Bifurcation
13.Bifurcation
14.Bifurcation
15.Ridge ending For the above said reasons, I am of the opinion that the disputed thumb impressions Q1 & Q2 are identical to that of the specimen impression A3 and are made by the same thumb.
Sd/--
(C.V.Jayadevi) EXPERT" (extracted as such)
13. C.W.1-Jaya Devi, the said fingerprint expert was examined and cross examined. The court on considering her deposition coupled with her opinion and the other documents, held that the purported Left Thumb Impression is that of D7 only.
14. At this juncture, I would like to recollect and call up the following decisions of the Hon'ble Apex Court:
(i) (2008) 4 SCC 530 [Thiruvengadam Pillai vs. Navaneethammal and another]; certain excerpts from it would run thus:
"16. When there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/ signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.
17. The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal.
19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of Pws. 1 to 3. We therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court, does not call for interference." (emphasis supplied)
(ii) (1979) 2 SCC 158 [The State (Delhi Administration) vs. Pali Ram]; an excerpt from it would run thus:
"31. It is not the province of the expert to act as Judge or Jury. As rightly pointed out in Jitli v. Jones, the real function of the expert is to put before the court all the materials, together with reasons which indue him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the court to ask the expert to give his finding upon any of the issues, whether of law or fact, because strictly speaking, such issues are for the court or jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence."
(iii) AIR 1963 SC 1728 [Ishwari Prasad Misra v. Mohammad Isa]; an excerpt from it would run thus:
"26. .......Evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence."
(iv) The decision of the Allahabad High Court reported in AIR 1971 ALLAHABAD 304 [Kamla Kunwar v. Ratan Lal and others]; an excerpt from it would run thus:
"30. There is no doubt that the evidence of an expert is not conclusive (See : Ishwari Prasad v. Mohd. Isa, AIR 1963 SC 1728)
16. It is therefore crystal clear from the above that the Court has got the discretion either to accept or reject the expert opinion for reasons to be recorded therein. Here in this case, the expert identified as many as 15 features to arrive at her conclusion. No doubt, D7 was always at liberty to torpedo and pulverise such a view by citing reasons. But in my opinion, nothing has been highlighted so as to attack Ex.C1. The fact also remains that objection was not filed as against the expert's opinion. The normal course that should have been adopted by D7 was that on coming to know of the expert opinion, he should have applied for a certified copy of the same and after obtaining it, he should have filed objections. In this case, atleast D7 could have sought permission from the Court to peruse the same and file objections, but straightaway he preferred to cross examine the expert. The expert evidence would reveal that she had 33 years of experience in the field and she by utilising her ability verified the questioned thumb impressions with the specimen thumb impressions and arrived at the conclusion. The disputed Left Thumb Impression of D7 is marked as Q1 and the disputed Left Thumb Impression of the same D7 in the thumb Impression Register Volume 151 page 22 was marked as Q2 and she compared those questioned thumb impressions with that of the specimen thumb impressions of D7 taken before the Court and she furnished her reasons also as referred to supra.
17. The relevant photos and negatives were marked. She was cross examined by the counsel for D8 generally touching upon her opinion. She during cross examination deposed that the Left Thumb Impression as found in Ex.A8 was clear and that she compared it with the specimen signatures and found that those signatures did tally. However, certain portions of the Left Thumb Impression as found in Q2 was not clear. I am of the considered view that once it is found that the disputed Left Thumb Impression of D7 as found in Ex.A8, did tally with the specimen Left Thumb Impression of D7, then that itself is sufficient. So far Left Thumb Impressions are concerned, the question of ante litem motem Left Thumb Impression does not arise because nowhere in the Forensic Science once could see that the Left Thumb Impression of an adult would get itself changed significantly. In extraordinary circumstances, if a person concerned is a manual labourer, at times the ridges might have got erased because of his hard work etc. But this is not a case of that nature. The trial Court as well as the appellate Court adverted to the salient features and correctly placed reliance on the expert opinion. The decision cited on the side of D7 reported in 2008 (1) CTC 97 [J.Naval Kishore v. D.Swarna Bhadran], in no way would support or fortify the contention of the appellant. An excerpt from the said decision would run thus:
"59. P.W.4 was only 26 years old and he was associated with a Private Detective Agency. Admittedly, this case was the first occasion for P.W.4 to come to the Court of law to give evidence, on comparison of handwriting. On the other hand, C.W.1 is a Scientific Officer attached to Tamil Nadu Forensic Science Department, Chennai, which is a well reputed Institute with all infrastructure. C.W.1 has also spoken about his experience in identification of handwriting. Having regard to the age and experience and that C.W.1 is well conversant in comparison of handwritings, we are of the view that the learned Single Judge was not right in discarding the independent evidence of C.W.1 and accepting the interested opinion evidence of P.W.4. It is not as if C.W.1 has not adopted any specific basis, as observed by the learned Single Judge. In his evidence, C.W.1 has stated that he has taken microscopic photographs of "S-1 to S-24" and "Q-1 to Q-4" and has conducted the following tests: 1. Microscopic examination, 2. Radio Spectral Comparison, 3. Video Spectral Comparison, 4. Visual Comparison with original documents, using the length, 5. Photographic examination, 6. Transparency examination, and 7. Exasure also conducted by using UV IR lights source. While CW-1 has spent seven sittings on seven days for the examination, observation of the learned Single Judge that C.W.1 has not adopted any scientific test is incorrect and unacceptable. We feel that the learned Single Judge was not right in accepting the evidence of P.W.4 and rejecting the unbiased opinion evidence of C.W.1. We prefer to look into the opinion evidence of C.W.1.
67. During his cross-examination, C.W.1 has stated that tracing was by mechanical process i.e. three signatures were by direct tracing and one signature by indirect tracing. Evidence of C.W.1 is sought to be assailed contending that C.W.1 has not given his opinion as to where from the disputed signatures could have been traced and without any definite opinion on that score, much weight cannot be attached to the opinion evidence of C.W.1 In our view, this contention has no force. C.W.1 was only confined to comparison of disputed signature with admitted signatures and giving his opinion. It was neither within his domain nor necessary to embark upon an investigation into the matter as to where from the questioned signatures could have been traced. Had it been an investigation in Criminal case, it might have been necessary for the investigating agency to trace out for the model signature. It would have been neither possible for C.W.1 nor requisite upon him to trace out the model signature.
17. In the reported case, the expert was only 26 years old and associated with a Private Detective Agency, whereupon the Division Bench of this Court doubted very much the capacity and the unbiased attitude of the expert concerned. Nowhere it is found stated that the assistance of a private fingerprint expert should not be taken by the Court at all. If the opinion given by the private expert is beyond doubt, then there should be no harm in placing reliance on such opinion. In this case, for the reasons to be recorded, the Courts placed reliance on the opinion of the expert. Even before this Court nothing has been highlighted so as to shaken the opinion given by the expert in this regard. Over and above that, the Courts below also referred to the oral and documentary evidence adduced on either side and ultimately upheld the evidence of the plaintiff. I recollect the trite proposition that witnesses might lie, but circumstances would not lie. Here the fact remains that according to D8, the said agreement to sale emerged on 19.12.1998, almost a month after the emergence of Ex.A9 - the sale deed executed by the Power of Attorney - P.W.2 in favour of the plaintiff. If at all D8 was a genuine person who wanted to purchase the property from his own brother D7, then he should have obtained Encumbrance Certificate. Had he chosen to obtain Encumbrance Certificate, then Ex.A9 would have got reflected in it and he might have come across that. As such that factor also is obviously and axiomatically clear in this case.
18. The contention on the side of D8, that while filing the earlier suit O.S.No.83 of 2001 for injunction by the plaintiff, he ought to have sought for partition, is neither here nor there, for the reason that the suit for partition is based on distinct cause of action. Accordingly, I am of the view that it cannot be held that the present suit over which the Second Appeal, has arisen is barred by res judicata or under Order 2 Rule 2 of CPC.
19. Simply because D8 filed the suit O.S.No.22 of 2001 for specific performance as against D7 and obtained sale deed, that would not bind the plaintiff who was not a party to the said suit. The judgment passed in O.S.No.22 of 2001 is only a judgment in personam and not a judgment in rem. The learned counsel for D8 would develop his argument that nothing prevented the plaintiff whose burden is to prove the case, to get the assistance of a Government Examiner and establish the genuineness of Ex.A8. I am of the view that no doubt the initial burden is on the plaintiff to prove his case as per the maxim Affirmanti, non neganti, incumbit probatio : The proof is incumbent on the one who affirms, not on the one who denies.
20. I also recollect the maxim: In re dubia, magis inficiatio quam affirmatio intelligenda - In a doubtful matter, the denial or negative is to be understood [or regarded], rather than the affirmative.
Accordingly if viewed, the contention on the part of D8 that an agreement to sell emerged, and that he got the sale deed in his favour is found to be antithetical to the evidence available on record.
21. Wherefore, the substantial question of law No.1 is decided to the effect that the opinion given by the Private fingerprint expert as relied by the Courts below is not against law.
22. The substantial question of law No.2 is decided to the effect that the judgment and decree in O.S.No.22 of 2001 obtained by the eighth defendant as against the seventh defendant would not be a bar for seeking partition by the plaintiff.
23. The substantial question of law No.3 is decided to the effect that the judgments and decrees in O.S.Nos.83 of 2001 and 22 of 2001 do not operate as res judicata and the present suit over which this appeal has arisen is not hit by Order 2 Rule 2 of CPC.
24. The substantial question of law No.4 is decided to the effect that there is no perversity or illegality in the judgments and decrees of both the Courts below.
25. Accordingly, this Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
Gms To
1. The Additional District Court/Fast Track Court No.IV, Bhavani
2. The First Additional District Munsif Court, Bhavani