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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 647 OF 2005
Garre Mallikharjuna Rao (D) by Lrs. & Ors. …Appellants
Versus
Nalabothu Punniah …Respondent
J U D G M E N T
Dr. B. S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment
and order dated 19.7.2002 passed by the High Court of Judicature of
Andhra Pradesh at Hyderabad in Appeal No. 676 of 1993, which had
set aside the judgment of the trial court, wherein the suit filed by the
respondent for specific performance has been dismissed vide
judgment and decree dated 9.11.1992 in O.S. No. 117 of 1983.
2. The facts and circumstances giving rise to this appeal are:Page 2
A. That the respondent/plaintiff filed two suits O.S. No. 117 of
1983 and O.S. No. 257 of 1984, seeking specific performance on the
basis of agreement to sell entered into with the appellant.
As per the
averments made by the respondent/plaintiff, late Garre Venkata
Ramakotaiah, father of the defendant Garre Mallikharjuna, had leased
out the plaint scheduled properties on 29.4.1980, by way of lease deed
dated 20.4.1980.
The respondent/plaintiff on the basis of the lease
deed, had claimed to be in continuous possession and enjoyment of
the said properties.
The defendant having filed the written statement,
died pendentelite, thus his wife, son and daughter had been substituted
as his legal representatives.
They defended the suit contending that
the plaint was based on false and fabricated document. Further, they
claimed that the agreement to sell, alleged to have been executed by
the father of the defendant, was a fabricated document and that the
signature of defendant shown therein as an attesting witness, had also
been forged. Thus, the suit may be dismissed.
B. After conclusion of the trial, the trial court had dismissed the
Original Suit No. 117 of 1983 by a judgment and decree dated
9.11.1992.
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C. So far as the other suit was concerned, wherein the agreement
to sell had been executed by the defendant himself, it was decreed and
in pursuance thereof, the sale deed was executed. The
appellant/defendant had shown no objection in respect of the same.
D. Aggrieved, the respondent/plaintiff preferred Appeal No. 676 of
1993 before the High Court against the order of dismissal of Original
Suit No. 117 of 1983, and vide impugned judgment and order, the suit
was decreed and the appellant/defendant was directed to execute a
sale deed in respect of land admeasuring 4.38 acres for a consideration
of Rs.30,000/-, out of which the respondent/plaintiff had already paid
Rs.28,000/- to the father of the defendant.
Hence, this appeal.
3. Shri Sanjeev Kumar, learned counsel appearing on behalf of the
appellant, has submitted that the High Court has erred in relying upon
the evidence of the hand-writing expert Shri Y. Sidda Reddy (PW-4).
Though, the trial court has disbelieved his version, it is pertinent to
note that he had categorically stated that the signatures on the
agreement to sell did not tally with the specimen signatures of the
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defendant i.e. as an attesting witness. More so, Shri Syed Syda Saheb
(PW-3), Scribe, has clearly deposed before the trial court that he did
not meet the vendor or his son. Attesting witness PW-2 has admitted
only his signatures on the said document, however, he denied any
knowledge as to its contents. Also he has deposed that he had agreed
to be a witness to the said deed, out of compulsion as the
respondent/plaintiff was a hardened criminal, involved in various
murders cases. More so, the respondent/plaintiff himself has raised
mutually inconsistent pleas inasmuch as he has submitted that in the
agreement to sell, time period of 4 months had been fixed to execute
the sale deed, while in his deposition, he had deposed that the sale
deed was to be executed only after the expiry of the term period of the
lease. In view of above, the High Court ought not to have reversed
the well reasoned judgment and decree of the trial court which had the
opportunity to see the demeanor of the witnesses itself. Thus, the
appeal deserves to be allowed.
4. Per contra, Shri R. Anand Padvanan, learned counsel appearing
on behalf of the respondent/plaintiff, has submitted that both the
families had known each other since long. The respondent/plaintiff
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had purchased the land from the defendant’s father in the year 1961,
1969 and 1974 and, in furtherance thereof, the defendant’s father had
executed two agreements for sale. Also, in respect of one of the
agreements after the trial court had decreed the suit of specific
performance in his favour, the appellant/defendant did not even
challenge the order. The High Court has rightly reversed the
judgment of the trial court placing reliance on the evidence of the
hand-writing expert PW-4. Thus, the appeal is liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
6. Whatever may be the legal position involved in this case, the
facts as pleaded and proved before the courts below, are far from
being satisfactory. The respondent/plaintiff who has examined himself
as PW-1 has raised mutually inconsistent pleas, as is evident from the
pleadings in the plaint wherein he had stated that it has been agreed
that the sale deed would be executed within a period of 4 months,
however, in his deposition, he has stated that the sale deeds were
agreed to be executed only after the expiry of the term of the lease.
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The agreement to sell has been transcribed on the non-judicial stamp
paper, though not registered. Admittedly, the said stamp paper had
been purchased 11 months prior to the date mentioned in the
agreement for sale. More so, it had been purchased from a different
place. Further, there is nothing on record to show as in whose name,
the non-judicial stamp paper had been purchased and who had
purchased it.
7. PW-2 has deposed that he had put his signatures on the
agreement to sell, however, he had stated that he did not know the
contents of the said agreement, and he had put his signatures only
under compulsion as the respondent/plaintiff was a hardened criminal
and had been involved in various murders cases.
8. PW-3, who was the scribe, has clearly deposed that he had
neither known who the vendor was, nor his son, nor who were the
attesting witness. He was an unlicensed deed writer and the relevant
part of his deposition as referred by the trial court is as under:
“PW3 did not say in his evidence that Ramakotaiah and
other attester signed in his presence and he does not
know Ramakotaiah previously.”
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In view of the above, there can be no doubt that the said PW-3
could neither be an attester, nor an eye-witness to the transaction.
9. Shri Y. Sidda Reddy (PW-4) in his deposition has clearly stated
that he did not see the original documents since he was given only the
photos of the admitted documents and the specimen signatures.
He
has explained that there was difference in formation of the same as
under:
“There is some difference in formation of letter vralu
between S-1 and Q-1. There is angle formation. In the
letter Ta on the left side bottom in Q-1 whereas it is a
curve in S.1. There is long curve at the end of the letter
ma in S-1 than Q-1. There is some natural variation in
the formation of Kravadi given to the letter Re between
Q-1 and S1. The letter Va in Q-1 shows some slight right
plant than S-1 whereas it is vertical in S-1. There is
slight spacing difference between letters in S-1 and Q-1.
Letters to letter there are some variation but in natural
variation.”
Further, he had opined that both the signatures are not of the
same persons as “intention to disguise the natural characteristics of
signatures” existed. Further he had stated that he had not mentioned
that Q-2 and S-2 i.e. the admitted and specimen signatures were
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written by the same person, both the signatures were different in
formation.
10. The evidence of PW-5, who is a mortgagee of the
respondent/plaintiff and claimed to have advanced certain amount, is
not relevant for proving any of the documents, neither is PW-6, who
was the photographer, who had taken the photographs of the admitted
and specimen signatures.
11. In Ajay Kumar Parmar v. State of Rajasthan, AIR 2013 SC
633,
while dealing with the provisions of Section 73 of the Indian
Evidence Act, 1872, this Court observed that courts, should be slow to
base its findings solely on comparison made by it. The Court further
held:
“The opinion or a hand writing expert is
fallible/liable to error like that of any other
witness, and yet, it cannot be brushed aside as
useless.
There is no legal bar to prevent the
Court from comparing signatures or
handwriting, by using its own eyes to compare
the disputed writing with the admitted writing
and then from applying its own observation to
prove the said hand writings to be the same or
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different, as the case may be, but in doing so,
the Court cannot itself become an expert in this
regard and must refrain from playing the role
of an expert, for the simple reason that the
opinion of the Court may also not be
conclusive.
Therefore, when the Court takes
such a task upon itself, and findings are
recorded solely on the basis of comparison of
signatures or handwritings, the Court must
keep in mind the risk involved, as the opinion
formed by the Court may not be conclusive and
is susceptible to error, especially when the
exercise is conducted by one, not conversant
with the subject.
The Court, therefore, as a
matter or prudence and caution should hesitate
or be slow to base its findings solely upon the
comparison made by it.
However, where there
is an opinion whether of an expert, or of any
witness, the Court may then apply its own
observation by comparing the signatures, or
handwritings for providing a decisive weight or
influence to its decision.”
12. The judgment and order of the trial court is based on proper
appreciation of the evidence. The High Court has erred in relying
upon untrustworthy, shaky and vague evidence to grant the
discretionary relief of specific performance in contravention of the
mandate of Section 20 of the Specific Relief Act, 1963.
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In view of the above, the appeal succeeds and is allowed. The
impugned judgment is hereby set aside. The judgment and decree of
the Trial Court is restored i.e. the suit filed by the respondent/plaintiff
is dismissed. No costs.
…….…………………………………….J.
(Dr. B.S. Chauhan)
….……………………………………….J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi;
March 12, 2013
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