Punjab-Haryana High Court
Sewak Singh And Another vs Karnail Singh And Another on 8 September, 2010
Author: L. N. Mittal
Bench: L. N. Mittal
R. S. A. No. 616 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 616 of 2010
Date of Decision : September 08, 2010
Sewak Singh and another .... Appellants
Vs.
Karnail Singh and another .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Dhirinder Chopra, Advocate
for the appellants.
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L. N. MITTAL, J. (Oral) :
This is second appeal by defendants 1 and 2, who were successful in the trial court, but have lost in the first appellate court.
Karnail Singh - respondent no.1-plaintiff filed suit against appellants and their father Gurcharan Singh - proforma respondent no.2/defendant no.3. The plaintiff alleged that he is owner in possession of half share of the land measuring 55 kanals 11 marlas. The plaintiff challenged three sale deeds i.e. one sale deed dated 10.01.1995 registered on 12.01.1995 regarding 09 kanals 07 marlas land and two other sale deeds both dated 12.01.1995 relating to 08 kanals 07 marlas land and 09 kanals 07 marlas land respectively allegedly executed by the plaintiff in favour of R. S. A. No. 616 of 2010 2 defendants no.1 and 2. The plaintiff alleged that he never executed the said sale deeds, which are result of fraud and impersonation.
Defendants denied the plaint allegations and pleaded that the aforesaid sale deeds have been executed by the plaintiff himself and the sale deeds are legal and valid.
Learned Additional Civil Judge (Senior Division), Moga, vide judgment and decree dated 03.12.2008, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed and thereby suit filed by the plaintiff stands decreed. Feeling aggrieved, defendants no.1 and 2 have preferred the instant second appeal.
I have heard learned counsel for the appellants and perused the case file.
Learned counsel for the appellants contended that testimony of finger print expert examined by the plaintiff stands rebutted by testimony of finger print expert examined by the defendants. The contention cannot be accepted. Sanjeev Sharma PW-2 is the expert examined by the plaintiff. He has opined that alleged thumb impressions of plaintiff on the impugned sale deeds do not tally with the specimen thumb impressions of the plaintiff. On the other hand, Gopal Krishan Sharma DW-1 examined by the defendants has given contrary opinion and stated that thumb impressions of plaintff on impugned sale deeds tally with his specimen thumb impressions. However, learned lower appellate court has assigned good reasons for believing the report of plaintiff's expert witness and for discarding the report of expert R. S. A. No. 616 of 2010 3 witness of the defendants. Plaintiff's expert witness has given sufficient reasons in support of his opinion. There is basic difference in the type and pattern of thumb impressions on the sale deed and the specimen thumb impressions. The specimen thumb impression is of circular whorl type, whereas disputed thumb impressions on the sale deeds are of oval whorl type. Plaintiff's expert had taken specimen thumb impressions of the plaintiff in the Court and compared the disputed thumb impressions with the said specimen thumb impressions. However, defendants' expert witness admitted in cross-examination that he had taken photographs of the disputed thumb impressions from photostat copies of the documents. The said witness also conceded that he never requested the Court for taking specimen thumb impressions of the plaintiff. He also admitted that most of the photographs of the disputed thumb impressions taken by him are not even legible. Consequently, report of defendants' expert witness has been rightly discarded by the lower appellate court. On the other hand, basic pattern of specimen thumb impressions and disputed thumb impressions is also different, as observed by the lower appellate court, as was manifest on naked eye perusal.
In addition to the aforesaid, defendants have also withheld the original sale deeds on the pretext that the same have been lost. However, no report regarding loss of sale deeds was lodged by the defendants. Moreover, criminal case regarding forgery of sale deeds is also pending against the defendants. Sewak Singh - defendant no.2 admitted that R. S. A. No. 616 of 2010 4 witnesses of the sale deeds (who have since died) had made statements against the defendants before the police during investigation of the criminal case. Sewak Singh also conceded that police had also got compared the disputed thumb impressions of the plaintiff on the sale deeds with his thumb impressions from finger print expert and the said report was also against the defendants.
In view of the aforesaid, the lower appellate court has rightly come to the conclusion that the impugned sale deeds were never executed by the plaintiff and have been obtained by impersonation. The said finding of fact recorded by the lower appellate court is fully justified by the evidence on record and is supported by cogent reasons. Lower appellate court is the final court of fact. Finding recorded by lower appellate court is not shown to be illegal or perverse in any manner so as to warrant interference at the hands of this Court. On the other hand, conclusion arrived at by the lower appellate court is the only reasonable conclusion that could be arrived at on the basis of evidence on record.
No question of law, much less substantial question of law, arises for determination in the instant second appeal. There is no merit in the instant second appeal, which is accordingly dismissed in limine.
September 08, 2010 ( L. N. MITTAL ) monika JUDGE