Madras High Court
Judgment Reserved On vs K.Ramamoorthi
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: .04.2015 CORAM THE HONOURABLE MS. JUSTICE R. MALA S.A.No.566 of 2005 Judgment reserved on 23.04.2015 Judgment pronounced on .04.2015 V.N.Perumal power agent of Mrs.P.Thillaikkarasi ..Appellant/Plaintiff Vs 1.K.Ramamoorthi 2.K.A.Marappa Gounder (died) 3.Ammalniyammal w/o late K.A.Marappa Gounder 4.M.Karuppannasamy s/o. late K.A.Marappa Gounder 5.M.Shanmugha Sundaram s/o.late K.A.Marappa Gounder .. Respondents/Defendants (RR3 to R5 are brought on record as legal representatives of the deceased 2nd respondent vide order of this Court dated 04.12.2006 made in C.M.P.No.8620 of 2006) Prayer: Second appeal filed under Section 100 of CPC against the judgment and decree dated 30.11.2004 in A.S.No.39 of 2004 on the file of the Sub-Court, Bhavani, reversing the judgment and decree dated 10.03.2004 in O.S.No.378 of 2004 on the file of I Additional District Munsif Court, Bhavani. For Appellant : Mr.N.Manokaran For R1 : Mr.T.Murugamanickam R2 : died R3 to R5 : served JUDGMENT
The second appeal arises out of the judgment and decree dated 30.11.2004 in A.S.No.39 of 2004 on the file of the Sub-Court, Bhavani, reversing the judgment and decree dated 10.03.2004 in O.S.No.378 of 2004 on the file of I Additional District Munsif Court, Bhavani.
2.The averments made in the plaint are as follows:-
(i)The power of attorney has filed an application seeking permission for suing in the capacity of power of attorney for his daughter namely, P.Thillaikkarasi, who is the absolute owner of the suit property. He purchased the suit property on 14.11.1995 from the first defendant along with another property under a registered sale deed by document No.4282 of 1995 at Parassala Sub-Registrar Office, Neyyatrikarai Taluk, Trivandrum District, Kerala State. Eversince the date of sale, the plaintiff has been in possession and enjoyment of the suit property by repairing the suit house spending more than Rs.1,75,000/- by digging a well and purchasing of electric motor pump set and paying house tax to the local panchayat. The service connection was originally obtained by the vendor namely, the first defendant which is yet to be transferred in favour of the plaintiff.
(ii) Due to family dispute between Thillaikkarasi, her husband and her father-in-law, the father-in-law/second defendant along with the first defendant attempted to disturb her peaceful possession and enjoyment of the suit property. So the plaintiff issued a telegram on 13.06.2000 to the first defendant not to create any encumbrance of the suit property. That apart, the plaintiff also caused a notice to the first defendant on 13.06.2000, which was refused by the first defendant. That apart, the plaintiff issued a legal notice on 14.06.2000 and the same was received by the first defendant on 23.06.2000.
(iii) Then the plaintiff came to know that the first defendant created a sale deed in favour of the second defendant in respect of the suit property on 14.06.2000 and the same was registered before the Sub-Registrar's Office, Bhavani, which is void ab-initio. Since the defendants attempted to disturb the plaintiff's peaceful possession and enjoyment of the suit property on 23.06.2000, he constrained to file the present suit for the following reliefs:
(a) declaring the plaintiff's title to the suit properties;
(b) granting permanent injunction restraining the defendants, their men, agents, servants and assignees from disturbing the peaceful possession and enjoyment of the suit property in any manner.
(c ) to pay the costs of the suit.
3.The gist and essence of the written statement filed by the first defendant, which is adopted by the second defendant are as follows:
(i)The first defendant has not sold the suit property to the plaintiff or to anybody. The alleged sale deed registered at Kerala is a forged and created one. The alleged power of attorney executed by Thillaikkarasi in favour of her father, the plaintiff on the basis of the forged sale deed is also not valid under law. The first defendant sold the suit property in favour of the second defendant on 14.06.2000. The second defendant and his family alone is in possession and enjoyment of the suit property. The suit without prayer of declaration of title is not maintainable under law. No cause of action for the suit. Therefore, he prayed for dismissal of the suit.
4.The gist and essence of the additional written statement filed by the first defendant which is adopted by the second defendant, are as follows:
(i)The schedule of property is newly added and created by the plaintiff, which is not mentioned in the forged sale deed dated 14.11.1995. Therefore, valuation of the suit property, Court fee stated by the plaintiff is absolutely wrong and incorrect. The I Additional District Munsif Court, Bhavani, has no jurisdiction to try the case on the ground of pecuniary jurisdiction. Therefore, he prayed for dismissal of the suit.
5.The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1 to P.W.4, D.W.1 to D.W.3 and Exs.A1 to A22 and Exs.B1 to B5 and Court documents viz., Exs.X1 to X8, decreed the suit. Aggrieved against the judgment and decree passed by the trial court, the defendants preferred an appeal in A.S.No.39 of 2004 on the file of the Sub-Court, Bhavani, Erode District.
6.The learned First Appellate Court has considered the arguments advanced on either side and framed necessary point for consideration and reversed the Judgment and Decree passed by the Trial Court and allowed the appeal. Against the Decree and Judgment passed by the first Appellate Court, the present second appeal has been preferred by the appellant/plaintiff.
7.At the time of admission, the following substantial question of law has been framed:
1.Whether the lower appellate Court is right in giving a finding that the sale deed dated 14.11.1995 is a forgery?
2.Whether the lower appellate Court is correct in reversing the judgment of the trial Court when the defendants had not produced any documents contra to the plaintiff's exhibits and documents to prove the possession of the suit property.?
8.Challenging the judgment and decree passed by the first Appellate Court, learned counsel for the appellant/plaintiff submits that the trial Court after considering the oral and documentary evidence has rightly decreed the suit. But whereas the first Appellate Court without considering the same has allowed the appeal preferred by the defendants on the basis of the evidence of D.W.2/hand writing expert holding that Ex.A1/sale deed dated 14.11.1995 is forged one. It is further submitted that originally the suit property is owned by the first defendant, who sold the same to the appellant/plaintiff on 14.11.1995 vide Ex.A1 sale deed. The second defendant is none other than the father-in-law of Thillaikkarasi. There was a partition between the family members viz., husband of Thillaikkarasi, his brother and also the second defendant, in which, the first defendant is an attestor. Even though the first defendant sold the suit property to the plaintiff/Thillaikkarasi on 14.11.1995, he attempted to sell the same to the second defendant. Therefore, the appellant/plaintiff sent a telegram to the first defendant on 13.06.2000 not to create any encumbrance in respect of the suit property and also sent Ex.A10 legal notice dated 14.06.2000. But the first defendant refused to receive the legal notice and sold the suit property to the second defendant on 14.06.2000 under Ex.B3 and it was registered in the state of Tamil Nadu. Whereas the sale deed under Ex.A1 was registered in Parassala, Keral State. Eversince the date of sale, the appellant/plaintiff has been in possession and enjoyment of the suit property. He also dug a well and made development in the suit property by spending more than Rs.1,75,000/- and paid house tax also. The plaintiff to prove that Ex.A1 is true and genuine, has examined P.W.2/attestor and P.W.3/scribe of Ex.A1. The first defendant has also filed an application to send Ex.A1 document to Forensic Science Department to get hand writing expert's opinion. On the basis of the evidence of D.W.2/hand writing expert, the first Appellate Court has dismissed the suit. Furthermore, D.W.1/first defendant in his evidence admitted that the appellant/plaintiff has paid house tax and electricity consumption charges to the suit property.
9.Learned counsel for the appellant/plaintiff to substantiate his arguments, relied upon the decision of the Madurai Bench of Madras High Court reported in 2011-1-L.W.806 in Gopi v. H.David and another) and submits that merely because Ex.A1 was registered in Kerala, wherein one of the items of the suit property was situated, it will not be a void document. Further, the opinion of hand writing expert alone cannot be a basis for conviction. He also relied upon the decision reported in 1977 (2) SCC 210 (Magan Bihari Lal v. the State of Punjab) and 2003 (1) SCC 21 (Alamgir v. State (NCT, Delhi) and submits that the evidence of an expert is rather weak type of evidence and the Courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking, independent and reliable corroboration. But the first Appellate Court considering the evidence of D.W.2/handwriting expert alone, has erroneously dismissed the suit. It is further submitted that now the second defendant/second respondent is no more, his legal representatives are brought on record and impleaded as respondents 3 to 5. The fifth respondent herein is the husband of the plaintiff/Thillaikkarasi. The first defendant has sold the suit property to the second respondent/second defendant and the first respondent/first defendant has no right over the same and he has no locus standi to contest the appeal. He further submits that the appellant/plaintiff is in possession and enjoyment of the suit property from the year 1995 onwards and the house of the plaintiff is 150 feet away from the house of D.W.1/first defendant. The first Appellate Court after considering the evidence of D.W.1 to D.W.3, has erroneously allowed the appeal. Therefore, he prayed for allowing the second appeal by setting aside the judgment and decree passed by the first Appellate Court.
10.Resisting the same, learned counsel for the first respondent/first defendant submits that since the first defendant is the party to the proceedings, he has every right to agitate the appeal, even though he sold the suit property to the second defendant and no right over the same. The first defendant/first respondent has sold the suit property to the second defendant on 14.06.2000 vide Ex.B3. The schedule of property in Ex.A1 has two items of suit property. The first item is situated in Bhavani and the second item is alleged to be situated in Kerala and the document number is 4280 of 1995. But whereas the document number in Ex.A1 is 4282 of 1995. The documents for title deed for item number 1 was not filed before the Court. It shows that Ex.A1 itself is not genuine.
11.He further submitted that P.W.2/Gopal is not an attestor of Ex.A1 and P.W.3 is also not a scribe of the document. To substantiate his arguments, he relied upon the decision of the Apex Court reported in 2002-1-L.W.460 (N.Kamalam (dead) and another v. Ayyasamy and another), (2005) 2 SCC 217 (Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others) and the decision of this Court reported in 1988 (1) MLJ 447 (M.Mohamed Kassim and others v. C.Rajaram and others), 2003 (1) CTC 539 (M.Manoharadhas v. C.Arumughaperumal Pillai and another) and submits that Section 28 of the Registration Act requires that every registrable document shall be presented for registration in the office of a sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. He further submits that the plaintiff was not examined before the Court and power to depose in place of principal, held, extends only to deposition in respect of acts done by power of attorney holder in exercise of power granted by the instrument. So non examination of the plaintiff/Thillaikkarasi is fatal to their case. Therefore, he prayed for dismissal of the second appeal by confirming the judgment and decree passed by the first Appellate Court.
12.Considered the rival submissions made on both sides and perused the materials available on record.
13.The second defendant namely, Marappa Gounder had two sons; one of the two sons is husband of the plaintiff namely, Shanmugasundaram/P.W.4. There was a partition between family members and the partition deed was marked as Ex.X7 dated 16.11.1994. The first and second defendant are close friends. After the partition, as if P.W.1/father of the plaintiff, who is her power agent has purchased the suit property in the name of his daughter Thillaikkarasi under Ex.A1. It is true, one item of the suit property is situated in Bhavani and another item of the suit property is situated in Kerala. Ex.A1 sale deed was registered in Parassala, Kerala on 14.11.1995. Since the first respondent/first defendant attempted to sell the suit property, the appellant/plaintiff has sent a telegram to the first respondent/first defendant on 13.06.2000 under Ex.A9. The appellant/plaintiff also sent a legal notice Ex.A10 to the first respondent/first defendant on 14.06.2000.
14.On perusal of the evidence of D.W.1/first defendant, it reveals that D.W.1 admitted that the legal notice was issued, but he refused to receive the same. He is a practising advocate and President of the village Panchayat.
15.It is pertinent to note that after purchasing of the suit property, appellant/plaintiff and her husband are residing in the suit property and the same was proved by filing Ex.A16/residential certificate issued by the Deputy Tahsildar; Exs.A4 to A8/house tax receipts. The electricity service connection under Ex.A15 stands in the name of father of the first defendant viz., Karuppanna Gounder. The appellant/plaintiff has also paid electricity consumption charges and the same was evidenced by Exs.A13 to A15. It clearly shows that from the date of purchasing the suit property on 14.11.1995, the appellant/plaintiff is in possession and enjoyment of the same.
16.D.W.1/first defendant in his cross-examination denied that the plaintiff and her husband has been in possession and enjoyment of the suit property from 1995 onwards. Further he deposed that he does not know in which house the plaintiff is residing. The Commissioner was appointed to inspect the suit property and the Commissioner has filed his report. The first respondent/first defendant has also filed his objections to the commissioner's report. But he admitted that the plaintiff has also paid house tax and electricity consumption charges to the suit property. He does not know in whose name the house tax receipt stands after 1995. He further deposed that there was a misunderstanding between the husband of the plaintiff and his father/second defendant in respect of taking care of his paternal grand mother, who was neglected by the second defendant.
17.The evidence of D.W.1 shows that suit property was sold in the year 1995 and the plaintiff/appellant has been in possession and enjoyment of the same. She paid house tax and electricity consumption charges and made development in the suit property. The Advocate Commissioner has also inspected the suit property and filed his report. Furthermore, D.W.1, who is a practising advocate and President of Village Panchayat, himself admitted that the plaintiff has paid house tax and electricity consumption charges after purchasing the suit property under Ex.A1. The first defendant/D.W.1 has also not made any objection for the same. In such circumstances, I am of the view, Ex.A1 sale deed is true and genuine.
18.At this juncture, it is appropriate to consider the decision of the Madurai Bench of Madras High Court relied upon by the learned counsel for the appellant/plaintiff reported in 2011-1-L.W.806 in Gopi v. H.David and another), wherein it was held that document can be declared as void only when both the parties to the document commit fraud and there was collusion between the parties. In para-14, 19 and 26, it was held as follows:
14. To appreciate the contention of both the counsel, we will have to see the provisions of section 28 of the Registration Act as it stood prior to 1997. It reads as follows:-
"Section 28. Place for registering documents relating to lands-- Save as in this Part otherwise provided, every document mentioned in Section 17, sub-section (1), Clauses (a), (b), (c), (d) and (e), Section 17, sub-section (2) insofar as such documents affect immovable property and Section 18, Clauses (a), (b), (c), and (cc) shall be presented for registration in the office of a Sub-registrar within whose sub-district the whole or some portion of the property to which such document relates is situated."
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19.Therefore, it is seen from the above judgments that unless there is collusion or fraud practised by both the parties to the document for the purpose of getting a document registered in another place, the document cannot be declared as invalid document or void document and one party alone has committed fraud or when there is no collusion between the parties to the document, it cannot be stated that the document is a void or invalid document. .. ..
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26.In this case, as stated supra, there is no evidence that there was collusion between the parties to commit fraud on registration by executing the sale deed in the State of Kerala by including some property situate in Kerala. .. .. Further, in para-28 of the above decision, it was specifically mentioned that the document Ex.A1 was not proved to be a collusive document and both the parties, with the intention of committing fraud on registration, executed the document. So the above decision is not applicable to the facts of the present case.
19.Learned counsel for the first respondent/first defendant has relied upon the decision of this Court reported in 1988 (1) MLJ 447 (M.Mohamed Kassim and others v. C.Rajaram and others) and submits that Section 28 of the Registration Act requires that every registrable document shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. In para-2, it was held that all the aforesaid sale deeds have been brought into existence by the defendants with intent to defeat and delay the execution of the decree that may be passed against the first defendant. In para-28, it was held as follows:
28.One other important objection raised by the learned Counsel for the first respondent/plaintiff is that the impugned sale deeds having not been registered before the Registrar having jurisdiction and on the other hand having been registered in Kerala including a fictitious property are void. It is the admitted case that a property to which the vendors are not entitled has been included in the sale deeds just for the purpose of registering it in Kerala. The reason given by them is that the registration fees in Kerala are cheaper and, therefore, they have chosen to register the case there. It is also in evidence that the vendors under these sale deeds had no semblance of title to the said property in Kerala and there is also no evidence to show that such properties exist in Kerala. .. .. .. .. It is also seen from the above provisions that a document not registered in accordance with the said provisions of Act has no effect on immovable property comprised therein. In order to show that the sale deeds have been validly registered, there must be evidence to show that the properties of Kerala included in the sale deeds really exist and that the vendors had any semblance of title or right over the same. .. .. .. In the case on hand, the first respondent/first defendant himself stated that in Ex.A1, he purchased the second item of the suit property under the document number 4280 of 1995. So after purchasing the second item of property under Ex.A1 only, the document under Ex.A1 was registered. In such circumstances, the above citation is not applicable to the facts of the present case.
20.Learned counsel for the first respondent also relied upon the decision of this Court reported in 2003 (1) CTC 539 (M.Manoharadhas v. C.Arumughaperumal Pillai and another), in para-8 and 12, it is held as follows:
8. The suit property is situate in Kanyakumari District and in the jurisdiction Sub-Registrar of Nagercoil. However, the first defendant had executed the sale deed Ex.B-1 dated 26.6.1985 at Parasalai of Kerala State. To enable such a sale, the property at S.No.80/1, Parasalai Village in Neyyartin Karai Taluk, is shown as a security. The first respondent/plaintiff has produced Ex.A.6 Certificate from the Tahsildar stating that Sri Rajavel (D1) has no possession or ownership of the property in S.No.80/1, which was shown as security for the Ex.B-1 sale. If there is no such property in existence, it follows that Ex.B-1 sale deed cannot be a valid sale.
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12. Ex. A-6 Certificate issued by the Tahsildar holding that the first defendant has no possession or ownership of the land in S.No.80/1, is, therefore, rightly accepted by the Courts below and consequently, it follows that the registration of the sale is illegal and void. The above decision is not applicable to the facts of the present case, since the first respondent/first defendant himself has disputed the execution of the sale deed under Ex.A1.
21.Now it is appropriate to consider the decision of the Apex Court relied upon by the learned counsel for the first respondent reported in (2005) 2 SCC 217 (Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others), wherein it was held that it was obligatory for them to have entered the witness box and discharged the burden by themselves. Questions on remand above could only have been answered by appellants themselves and not by a mere holder of power of attorney from them. It is appropriate to extract para-15 to 18, which run as follows:
15.Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573 observed at page 583-84, para-17 that:
"17.Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct".
16.In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree.
17.On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2 WLN 713 (Rajasthan), it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
18.The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors. (AIR 1998 Raj. 185). It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC. In the light of the above decision along with the facts of the present case, as per the evidence of P.W.1, who is the power agent of Thillaikkarasi, he alone has taken part in getting sale deed in favour of his daughter Thillaikkarasi and the same was deposed by P.W.4/husband of the plaintiff. Ex.A2 Power of attorney deed came into existence on 14.06.2000 and from the date onwards, the power agent is aware of the fact and he alone had taken steps to get the sale deed in favour of his daughter. In such circumstances, P.W.1/power agent is the competent person to speak about the same. As per the evidence of P.W.4, neither P.W.4 nor his wife Thillaikkarasi gone to Parassala, Kerala for registration and only P.W.1 alone had gone there. In such circumstances, the above citation is not applicable to the facts of the present case. Because P.W.1 had taken active part in getting sale deed in favour of his daughter on 14.11.1995 and he is aware of the fact. Hence, P.W.1 is a competent person to depose on behalf of his daughter Thillaikkarasi. So non examination of the plaintiff/Thillaikkarasi is not fatal to this case.
22.It is pertinent to note that the plaintiff has examined P.W.2/attestor and P.W.3/scribe of Ex.A1 to prove that Ex.A1 sale deed is valid document. Learned counsel for the first respondent submitted that scribe is not an attestor and to substantiate his arguments, he relied upon the decision of the Apex Court reported in 2002-1-L.W.460 (N.Kamalam (dead) and another v. Ayyasamy and another), wherein it was held that scribe is the mere writer of the Will and the presence of the scribe cannot be taken as proof of attestation. There is no quarrel over the proposition. But the above decision is not applicable to the facts of the present case.
23.Now this court has to consider whether Ex.A1 is true and genuine document? D.W.1/first defendant raised a plea that Ex.A1 is forged one and to prove the same, he has examined D.W.2/Jayadevi, hand writing expert. Admittedly, on the basis of the evidence of D.W.2/hand writing expert, the first Appellate Court has set aside the judgment and decree passed by the trial Court.
24.Learned counsel for the appellant/plaintiff submits that expert's opinion is not a conclusive proof and it is a weak piece of evidence. To substantiate his argument, he relied upon the following decision:
(i)In 1977 (2) SCC 210 (Magan Bihari Lal v. the State of Punjab), wherein it was held that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. Para-7 is extracted hereunder:
7. .. .. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. (AIR 1957 SC 381) that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items o[ internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa (AIR 1963 SC 1728) that expert evidence of hand writing can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC 529) where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by Circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. (AIR 1967 SC 1326) and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American courts. Vide Gurney v. Langlands and Matter of Alfred Fosters Will. The Supreme Court of Michigan pointed out in the last mentioned case:
Every one knows how very unsafe it is to rely upon any one's opinion concerning the niceties of penmanship--Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil.
We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form and the basis for a conviction. .. ..
(ii)For the same proposition, he relied upon the decision of the Apex Court reported in (1996) 4 SCC 596 (S.Gopal Reddy v. State of A.P.), wherein it was held that the evidence of an expert is rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof. Para-28 is extracted hereunder:
28.Thus, the evidence of PW3 is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking, independent and reliable corroboration. .. ..
(iii)In 2003 (1) SCC 21 (Alamgir v. State (NCT, Delhi), the case in 1977 (2) SCC 210 (Magan Bihari Lal v. the State of Punjab) has been relied upon. In para-13, it is held as follows:
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We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. We must, therefore, try to see whether, in the present case, there is, apart from the evidence of the handwriting expert B. Lal, any other evidence connecting the appellant with the offence. .. .. .. In fine in Murari Lal, this court stated that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law that opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. We feel it expedient to record our concurrence therewith, though, however, we hasten to add that since human judgment cannot be said to be totally infallible, due caution shall have to be exercised and the approach ought to be that of care and caution and it is only upon probe and examination the acceptability or creditworthiness of the same depends. The learned Sessions Judge as also the High Court did place, upon consideration of all relevant facts and material on record, reliance on the opinion of the handwriting expert and we do not see any reason to record a contra finding. .. ..
25.Considering the above decision along with the facts of the present case, I am of the view, the evidence of handwriting expert alone is not sufficient to set aside the judgment and decree passed by the trial Court, since there is a provision for sending the document to the Forensic Science Department for comparison, wherein signature alone was taken for comparison with the document. So, without corroboration, it is unsafe to place reliance on the evidence of D.W.2 and her report to come to the conclusion that Ex.A1 is forged one.
26.During pendency of the second appeal, the appellant/plaintiff has filed an application under Order 41 Rule 27 of C.P.C. for reception of the judgment passed by the learned Judicial Magistrate No.II, Gobichettipalayam in C.C.No.208 of 2003 and the same is marked as Ex.A23. It is seen from the above said judgment that the first defendant/first respondent had lodged a complaint before Kavundhapadi police station and a case was registered in Crime No.382 of 2000 for offences under Sections 419, 420, 468 read with 120B and 471 IPC. After investigation, charge sheet has been filed and it was taken on file as C.C.No.208 of 2003. After trial, the appellant Thillaikkarasi, her power agent Perumal, attestor P.W.2/Gopal and one Thangavel were acquitted.
27.It is well settled dictum of the Apex Court that the judgment of criminal Court will not bind upon the case in Civil Court. The handwriting expert of this case viz., Jayadevi was examined as P.W.11 and her report was marked as Ex.P7 in C.C.No.208 of 2003. Hence, the first Appellate Court has misconstrued that the evidence of D.W.2/Jayadevi and her report is conclusive proof and came to the conclusion that Ex.A1 sale deed is forged one. But the evidence of D.W.2 and her report is not a conclusive proof and it was not corroborated by any other witness. Per contra, on the side of the appellant/plaintiff, P.W.2/attestor and P.W.3/scribe were examined to prove that the first respondent/first defendant alone had signed the sale deed under Ex.A1 and executed the sale deed. So the first Appellate Court has committed an error in setting aside the judgment and decree passed by the trial Court only on the basis of evidence of D.W.2, which is not wholly reliable.
28.At this juncture, it is appropriate to consider the evidence of P.W.2/Gopal, who has identified the witness of Ex.A1, deposed that D.W.1 put his signature in Ex.A1 and he himself along with one Thangavel has signed in Ex.A1 as witnesses. According to the evidence of P.W.3/Selvaraj, who is the scribe, he deposed that D.W.1 has signed the sale deed. Considering the evidence of P.W.2 and P.W.3, there is no reason to discard their evidence, because they identified D.W.1/first defendant, who executed the sale deed Ex.A1 in favour of the appellant/plaintiff on 14.11.1995. In pursuance of Ex.A1, the appellant/plaintiff has been in possession and enjoyment of the suit property with the knowledge of the first respondent/first defendant. From the year 1995 onwards, as soon as the first respondent/first defendant attempted to alienate the suit property, the appellant/plaintiff sent Ex.A9/telegram to the first respondent/first defendant on 13.06.2000 not to encumber the suit property. The appellant/plaintiff has also sent Ex.A10 legal notice to the first respondent/first defendant on 14.06.2000. Even though the first defendant was aware of the notice, he refused to receive the same. Since the first respondent is an advocate, he knows the legal consequences. Moreover, the first respondent/first defendant is not an owner of the suit property, because according to him, he had executed a sale deed under Ex.B3 in favour of the second respondent/second defendant. As already stated that during pendency of second appeal, second defendant/second respondent herein died, his legal heirs viz., respondents 3 to 5 were impleated as parties. Even though notices were served to them, they have not contested the matter. Once the first respondent/first defendant has executed the sale deed in favour of the second defendant, the first defendant has no right over the suit property.
29.Furthermore, the evidence of P.W.1 to P.W.3 proved that the first respondent has executed the sale deed under Ex.A1 after receipt of the sale consideration. In pursuance of the sale deed, the appellant/plaintiff is in possession and enjoyment of the suit property after making improvement and also paying house tax and electricity consumption charges. It clearly shows that Ex.A1 sale deed was true and genuine, even though it was registered in Parassala, Kerala. The trial Court has considered the same in proper perspective and decreed the suit as prayed for in the plaint.
30.Under the aforestated circumstances, the trial Court has come to the correct conclusion that the appellant/plaintiff is in possession and enjoyment of the suit property from 1995 onwards. Furthermore, the first defendant, who is a practising advocate and president of Panchayat, is residing 150 feet away from the house of the plaintiff and he is aware that the appellant/plaintiff has paid house tax and electricity consumption charges and the same were proved by the Commissioner's report. It is to be noted that the first respondent/first defendant has not made any objections for the same. He has also not taken any steps to vacate the appellant/plaintiff from the suit property. Per contra, the first respondent attempted to encumber the suit property in the year 2000. Immediately, the appellant/plaintiff has sent Ex.A9 telegram and Ex.A10 legal notice to the first respondent/first defendant, even then he executed the sale deed in favour of the second defendant.
31.Considering the cumulative facts of the case, I am of the view, the appellant/plaintiff is entitled to declaration of title and also injunction as prayed for in the suit. The first Appellate Court has committed an error in dismissing the suit only on the basis of the evidence of D.W.2. Therefore, the judgment and decree passed by the first Appellate Court are unsustainable and the same are hereby set aside. The judgment and decree passed by the trial Court are hereby restored and this second appeal is allowed.
32.In fine, The Second Appeal is allowed.
The judgment and decree passed by the first Appellate Court are hereby set aside.
The judgment and decree passed by the trial Court are hereby restored.
There is no order as to costs.
Consequently, connected Miscellaneous Petition is closed.
.04.2015 Index:Yes Internet:Yes kj R. MALA, J.
kj To
1.I Additional District Munsif Court, Bhavani.
2.The Sub-Court, Bhavani.
3.The Record Keeper, V.R.Section, High Court, Chennai.
Pre-delivery Judgment in S.A.No.566 of 2005 .04.2015