Dismissed

Trilok Rathore v. Kanhaiya Gidwani and Others

Allahabad HC13 Feb 2018FAPL/104/2011

Case brief

AI extract

What is this about?

Defendant's first appeal against a decree declaring a sale deed void. The sale deed had been executed by the plaintiff's power of attorney holder, who denied executing it and whose authority had been revoked by a registered instrument. The court upheld the trial court's findings on expert evidence, non-production of the original deed and inconsistent payment of consideration, and dismissed the app

What did the court decide?

Appeal dismissed with costs; judgment and decree of the Trial Court declaring the sale deed void upheld.

Trilok Rathore Vs Kanhaiya Gidwani and Others — Cheating and Forgery | Allahabad HC (2018)

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Court No. - 34

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Case :- FIRST APPEAL No. - 104 of 2011

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Appellant :- Trilok Rathore Respondent :- Kanhaiya Gidwani & Others Counsel for Appellant :- Ramendra Asthana Counsel for Respondent :- Gaurav Sharma,A.K.Rai,Udayan Nandan,V.K. Rai,V.K. Singh,Vijai Kumar Ojha

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Hon'ble Sudhir Agarwal,J. Hon'ble Siddharth,J.

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Heard Sri Ramendra Asthana, learned counsel for the appellant and Sri Shashi Nandan, learned Senior Advocate, assisted by Sri Udayan Nandan, learned counsel for the respondent.

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This is defendant's First Appeal under Section 96 of Code of Civil Procedure (hereinafter referred to as 'C.P.C') preferred against Judgment and Decree dated 04.02.1991, passed by Sri Mahipati Singh Verma, H.J.S., Additional District Judge, Court No.7, Agra, decreeing Original Suit No.456 of 2003 of plaintiff, Kanhaiya Gidwani, with costs declaring sale deed dated 04.06.2002, as void, illegal and ineffective and directing defendant-appellant to remove his possession over suit property within 60 days, by means of a decree of mandatory injunction.

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Plaintiff’s case is that he is the owner of plot no.18, Bagh Farzana Street Scheme of Agra Development Authority, Agra. He purchased the said property from Agra Development Authority (hereinafter referred to as 'A.D.A') on 18.11.1993 by means of a registered deed for valuable consideration, which is more particularly described at the foot of the plaint and is suit property. Plaintiff is a Non Resident Indian (N.R.I.) Defendant-4 (who is real brother of plaintiff) along with other family members was living in Agra, hence plaintiff executed a power of Attorney in favour of defendant4 on 12.04.1993 regarding suit property. Later on defendant-4 and all other family members left Agra and settled at Pune permanently, so plaintiff got the said Power of Attorney, cancelled, by registered instrument dated 26.08.1997. The information of said cancellation was also given to defendant-4. Defendant-1 was employee of plaintiff’s family upto the year 1992-93 so he knew plaintiff’s family and his brothers, but he proved to be a

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man of turbulent nature hence removed from employment in or about 1993. He became furious and inimical. Plaintiff’s brother, Narayan Dass Gidwani, also had one plot near plaintiff’s plot i.e., plot no.20, in the aforesaid scheme, which he sold to a third person. His brother requested his purchaser to look after Plot No.18. In third week of May, 2003, purchaser of plot no.20 informed by telephone, received by mother of plaintiff in Pune, that defendant-1 is digging foundation over the property in suit. The said information was conveyed by mother of the plaintiff to him at Hong Kong by telephone. Therefore, plaintiff after making arrangement of business, reached India on 28.05.2003 and thereafter reached spot on 29.05.2003, where he found that some persons were raising constructions over property in suit. On enquiry they informed that defendant-1 has purchased the said plot and they are raising constructions as per his directions. They were raising pillars on the ground floor. Plaintiff immediately reached Sub Registrar’s Office, Agra and with the help of document writer he traced out sale deed in favour of defendant no.1, wherein defendants-2 and 3 were shown as witnesses. From perusal of certified copy of sale deed it was revealed that alleged sale deed dated 4.6.2002 was executed by defendant-4, as Power of Attorney Holder of plaintiff, in favour of defendant-1. Plaintiff immediately asked defendant-4 on telephone, who surprisingly said that he never executed any sale deed in favour of defendant no.1 or to any other persons on 04.06.2002 or on any other date. He informed that from the date of accident in which he got serious fracture in pelvic bone he was not in position to walk easily. He never visited Agra so there is no question of executing alleged sale deed and also stated that if there is such a sale deed, same is forged and a fabricated document. Plaintiff again reached suit property and tried to restrain men of defendant no.1 from raising constructions but some of them were men of turbulent nature and had fire weapons. They abused plaintiff and threatened him of dire consequences if any obstruction is created in constructions. Plaintiff tried to contact defendant-1 but could not meet. The alleged sale deed is a forged and fabricated document. Neither alleged sale deed was executed by defendant-4 nor he had any authority to execute the same on behalf of plaintiff in favour of defendant-1 or in favour of any person.

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Therefore, defendant-1 can not get any right, title or interest in the plot in question through alleged sale deed. The execution, existence and validity of alleged sale deed is not admitted and denied. The alleged sale deed is null and void and is not binding for the reason that: Defendant-4 had no authority to execute alleged sale deed of the plot in suit in favour of defendant-1 or in favour of any other person; Alleged sale deed was never executed by defendant-4. He never signed or marked any thumb impression on the alleged sale deed; No consideration was ever paid by defendant-1 to defendant no.4 or to any other person, as such alleged sale deed in without consideration; Address of defendant-4 shown in the alleged sale deed is wrong because defendant-4 or any other member of family of the defendant4 were not residing at Agra. They had sold their house A-24, Friends Colony, New Shahganj, Agra many years before the alleged sale deed and shitted to Pune.

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In the aforesaid circumstances defendant-1 had no right, title or interest in the property in suit and no right to raise constructions. Thus suit for declaration that the alleged sale deed is null and void was filed seeking further relief that information of the said declaration be given to SubRegistrar, Agra with the direction to make endorsement of cancellation on the relevant place in books of registration. Plaintiff is absolute owner of suit property, hence permanent prohibitory injunction was prayed restraining defendant-1 and his associates from interfering in suit property by raising any construction or otherwise in any manner whatsoever.

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On 30.05.2003 the plaintiff tried to lodge F.I.R. but it appears that local police was also under the influence of defendant-1 as such they did not register F.I.R. of plaintiff. Application was given in the office of Senior Superintendent of Police but no protection was given and some policemen said that until and unless there is an order of Court of law, no police help will be provided. Hence there is no other alternative except to file this suit. Although the alleged sale deed dated 4.6.2002 is a void instrument, because defendant-4 neither had any authority to execute the same on behalf of plaintiff nor he executed the same, but plaintiff has reasonable apprehension that if alleged sale deed is left outstanding, it may cause him serious injury.

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Therefore, it is necessary to adjudge alleged sale deed as null and void instrument. The defendants-2 and 3 are in collusion with defendant-1 because they wrongly identified some other person as defendant-4, who never came to Agra to execute alleged sale deed as such they are impleaded as defendants in this suit. Since defendant-4 denied and pleaded that he never marked thumb impression or signed any document nor executed any alleged sale deed, so he is also impleaded as defendant in the suit. The cause of action to file present suit arose on 4.6.2002, when sale deed was executed and thereafter in third week of May, 2003, when defendant-1 started raising constructions over property in suit and lastly on 29.05.2003, when associates of defendant-1 flatly refused to stop construction work.

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On the basis of plaint averments, plaintiff prayed that the sale deed dated 04.06.2002 allegedly executed by defendant-4 in favour of defendant-1 may be declared null and void and Sub-Registrar, Agra be directed to make a note on the copy of sale deed in his office to this effect. Further decree of mandatory injunction in favour of plaintiff against defendant-1 and his associates, agents, servants, representative, etc., was sought directing them to remove malwa of construction from Suit property and hand over possession of plot to plaintiff by restoring its original position within time fixed by Court and on failure to do the same, it may be done through machinery of Court at the cost and expenses of defendant-1. Decree of possession of suit property and of permanent prohibitory injunction against defendant-1, his agents, associates, etc., was also sought.

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Defendant-1 filed his written statement admitting that plaintiff was lessee of plot no.18, having purchased it by means of registered lease deed dated 18.05.1993, from Agra Development Authority. Now the said plot belongs to defendant-1 in pursuance of sale deed dated 4.6.2002 executed by defendant-4, on behalf of plaintiff and plaintiff has no right, title and interest or possession over the same. Plaintiff had executed registered power of attorney in favour of defendant-4 on 12.04.1993 authorizing him to sell plot no.18 on his behalf. Plaintiff had never given any public notice of alleged cancellation of said power of attorney dated 12.04.1993. It was denied that any information of said cancellation was given to defendant-4. Defendant-1

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had never been employee of plaintiff’s family, therefore, question of his alleged removal from employment does not arise. There was no occasion for defendant-1 to have ever become furious or to have any inimical terms with plaintiff. Sri Narayan Dass Gidwani had no business to request purchaser of plot no.20, whose name is not disclosed, to look after the said plot in dispute. It was denied that in third week of May, 2003 or any other time, said alleged purchaser of plot no.20, informed by Telephone, alleged to have been received by mother of plaintiff in Pune, that defendant-1 was digging foundation over plot in Suit, when as a matter of fact defendant-1 had almost completed his constructions over the said plot no.18 much before 3^rd week of May, 2003 and defendant-1 was not digging any foundation over it at that time. Plaintiff has made false and vague allegations that alleged information was conveyed by mother of plaintiff to him at Hong Kong by telephone. This defendant-1 has no knowledge as to when plaintiff left Hong Kong and reached India. He denied that plaintiff reached on the spot on 29.05.2003 and found some persons raising constructions over property in suit. It was denied that on enquiry his men said that defendant-1 purchased the said plot or that they were raising constructions as per the direction of defendant-1. It was denied that they were raising pillars on the ground floor as stated above. The pillars had already been built and basement and Ist floor building had already come into existence, much before third week of May, 2003. It was denied that plaintiff immediately reached the office of Sub- Registrar, Agra or with the help of any document writer he traced out the said deed dated 4.6.2002, executed by defendant-4 in favour of defendant-1 and came to know about the facts through the certified copy. All the allegations have been falsely made out by way of “peshbandi” to make a ground for filing his false suit. As a matter of fact plaintiff had full knowledge of sale deed dated 4.6.2002 from the very beginning and of deposit of freehold amount with Agra Development Authority by defendant-1 for getting plot in suit, free hold by free hold deed dated 15.11.2002, executed by Agra Development Authority in favour of defendant-1. There was no occasion of any telephonic conversation of plaintiff with defendant-4 as falsely alleged. It was denied that defendant-4 was at any time bed ridden as falsely alleged since 2001

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continuously till now. It was denied that sale deed dated 04.06.2002 was not executed by defendant-4 in favour of defendant-1. It was denied that the said sale deed dated 04.06.2002 is either forged or fabricated. It was stated to be a genuine document, having been obtained by defendant-1 from the defendant-4, for a valuable consideration well within the knowledge of plaintiff and his family members and all concerned. Plaintiff never reached property in suit or tried to restrain men of defendant-1 from raising constructions. It was denied that some of them were man of turbulent nature. It was denied that the said alleged persons had fire weapons or they abused plaintiff or ever threatened plaintiff as falsely alleged. It was denied that plaintiff ever tried to make contract with defendant-1 or that he did not meet. It was denied that the said sale deed is a forged or fabricated document and not executed by defendant-4. It was also denied that defendant-4 had no authority to execute the same on behalf of plaintiff in favour of defendant-1 and the defendant-1 can not get any right, title or interest in the plot in suit. The said sale deed has been validly executed by defendant-4 for a valuable consideration and it is solemn document, binding upon plaintiff and he has no right to challenge execution, existence and validity of the same. Defendant-1 is the owner in possession of plot in suit and has raised valuable constructions well within the knowledge of plaintiff. There is no malwa on the land in suit but there is well built kothi on the land in suit and therefore question of its removal does not arise. It was denied that they wrongly identified some other person as defendant-4 and at that time defendant-4 was not living at Agra. He was living at Agra. The defendant-2 and 3 are neither necessary nor proper parties and therefore, they have been wrongly impleaded for ulterior motives. No cause of action has accrued to plaintiff to file present suit. The suit is false, frivolous and vexatious and is liable to be dismissed with costs. He purchased property in good faith and bonafide believing that defendant-4 was entitled to execute sale deed of property in suit in pursuance of the power of attorney dated 13.04.93. The defendant-1 has paid valuable consideration thereof to defendant-4 and the defendant-1 has been put in actual and physical possession of plot in suit by defendant-4 in pursuance of sale deed dated 4.6.2002 and he has raised valuable

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constructions thereon in good faith and good faith believing that he is entitled to it. The said sale deed has been executed by defendant-4 well within the knowledge of the plaintiff. After the said sale deed in his favour by defendant-4, defendant-1 has obtained free hold deed of land in suit from the Agra Development Authority by a registered free hold deed dated 15.11.2002, well within the knowledge of plaintiff. The possession of defendant-1 over the plot in suit is as of right, as owner thereof, and his possession can not be disturbed by means of this suit. Plaintiff and the defendant-4 have become dishonest and they, with malafide intention, want to usurp valuable property belong to defendant-1 and the suit has been filed by plaintiff in active collusion and connivance of defendant-4 so as to blackmail and squeeze more money from defendant-1. The Suit has been filed only to harass defendant-1 and plaintiff has illegally got stopped the roofing by obtaining ex-parte injunction order fraudulently and by misrepresentation of facts. In any case defendant-1 is entitled to protection under section 41 of the Transfer of Property Act, 1882 (herein after referred to as 'Act 1882'). Suit is barred by principles of estoppel and acquiescence. Plaintiff has not come with clean hands. He has got mischievously and collusively filed false written statement from defendant-4 in his favour who is admittedly his real brother. Plaintiff has not complied with the provisions of Order 7 Rule 14 C.P.C. and even summons of suit have not been properly served in accordance with new C.P.C. enforceable w.e.f. 1.7.2002. The suit is liable to be dismissed outright with costs and special costs.

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Defendant-3 also filed his written statement stating that only this much is admitted that the defendant-1 got signature of answering defendant on the said sale deed without disclosing contents and nature of document alleged to have been got executed as sale deed in his favour by defendant-4. He has no concern with the said sale deed. The real fact is that defendant-3 was having a shop in 8/508 commercial complex owned by defendant-1 at Hing Ki Mandi, Agra and he requested defendant-3 to put his signatures and thumb impression on the sale deed as a witness. On the request of defendant1, defendant-3 signed sale deed without going through the contents of the same. He never identified defendant-4, alleged to have been the executant of

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sale deed under reference, as he has no concern with plaintiff or defendant1, 2 and 4 and also has no concern with the property in suit. Since defendant1 requested him to sign on the deed as witness, which had already got executed and typed by defendant-1. Defendant-3 was never requested to identify sale deed under reference nor he signed sale deed with intention to identify the person who signed the sale deed as executant. Due to the request made by defendant-1, defendant-3 bonafide signed the said sale deed as witness as such but never identified executants of sale deed under reference intentionally. Defendant-3 was not having any knowledge in respect of the alleged power of attorney and had also not seen any power of attorney at any point of time. Defendant-3 has no concern with the alleged execution of sale deed and was not acquainted with the alleged executant of sale deed hence no question arose of identifying person whom he did not know. In case under the garb of witness of the said sale deed, if signatures and thumb impressions of defendant-3 have been taken before Sub Registrar, Agra for illegal identification of alleged executants without knowledge and notice to defendant-3, he had no intention to identify the wrong person. He had no knowledge about pendency of suit but it only came to his knowledge when notice dated 10.08.2006 was issued by Court in Misc. proceedings No. 12/06 and thereafter he moved an application for inspection of the property in suit on 18.08.06. Prior to that defendant-3 never appeared before Court in any proceedings relating to this case and had never seen the record of this case.

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Defendant-4 also filed his written statement stating that it is admitted that plaintiff was informed about encroachment on his property by defendant-4 through mother of plaintiff via telephone while he was in Hongkong. However other facts mentioned in the same paragraph are not known to him. It was submitted that he never executed any sale deed in favour of defendant-1 or in favour of any other person on 04.06.2002 or on any other date with respect to the subject matter of Suit. The execution, existence and validity of alleged sale deed was strongly denied and it was not admitted. Defendant-4 never signed or marked any thumb impression over alleged sale deed. He was not present in Agra on 04.06.2002 when

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alleged sale deed is said to be executed as such question of presentation of alleged sale deed on 5.6.2002 before Sub-Registrar Agra does not arise. There is no dispute that the cause of action arose on the day alleged sale deed was executed. Also jurisdiction of the Hon’ble Court is not disputed. Plaintiff was admitted to be owner of plot in Suit who purchased Plot No.18, Bagh Farzana Street Scheme, Agra from Agra Development Authority, Agra on 18.11.1993. Plaintiff executed a Power of Attorney in favour of defendant-4 on 12.04.1993 but the said Power of Attorney was cancelled by him on 26.11.1997 by registered instrument in office of Sub Registrar, Agra and information of the said cancellation was admitted by defendant-4. There is no question of his executing a sale deed in favour of defendant-1 or in favour of any other person on 4.6.2002 or on any other date on the basis of the said power of attorney for the suit property. Defendant-4 never signed or marked his thumb impression over the alleged sale deed dated 04.06.2002 or in books of the Sub Registrar, Agra. Defendant-4 has also not received any consideration as alleged from the defendant-1 or from any other person in respect of the suit property. The photos of defendant-4 on the alleged sale deed are very old photos. It appears that defendant-1, who was employee in family of defendant-4, has taken his photo during the period of his employment. It is submitted that defendant-4 has never given any fresh photograph to defendant-1 in the year of 2001 or 2002. He submitted a recent photograph of himself, a specimen signature and thumb impression before this Court for comparison and analysis. Also handwriting experts can analyze signature of defendant-4 on the alleged sale deed with the specimen signature submitted before Court to ascertain the fact. The alleged sale deed is forged and fabricated document and is null and void and is not binding in any manner whatsoever.

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On the basis of the above pleadings of the parties, the Trial Court framed following issues :

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i). Whether the sale deed dated 04.06.2002 is fabricated, void and illegal?.

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ii). Whether the Court Fees paid is insufficient? iii). Whether the Suit is barred by Sections 34, 38 and 41of the

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Specific Reliefs Act?

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iv). Whether the plaintiff is the owner of disputed property?

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v). Whether the suit is not maintainable?

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vi). What Relief, if he is entitled, is the plaintiff entitled to get?.

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vii). Whether the defendant no.4 had the right to execute the disputed sale deed dated 04.06.2002 ?

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viii). Whether the defendant no.3 is unnecessary party?

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ix). Whether the suit of the plaintiff was under valued and the Court fees paid was insufficient?

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x). Whether the suit of the plaintiff is barred by time?

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xi). Whether the suit of the plaintiff is barred by Section-6 of the Specific Reliefs Act.

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xii). Whether the constructions of the defendant no.1 over the disputed property were present, prior to the Institution of the Suit?.

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Trial court decided Issues-1 and 7, whether the sale deed dated 04.06.2002 is fabricated, illegal and void and whether defendant-4 had right to execute the same, together, against the defendant-1 and in favour of plaintiff. It has been held that disputed sale deed dated 04.06.2002 is fabricated, void, illegal and ineffective, which has been executed in collusion with the witnesses and Sub-Registrar by producing some one in place of defendant-4. Even defendant-4 had no power to execute sale deed in dispute. Issues-2 and 9 regarding payment of insufficient court fees and under valuation of plaint, were decided in favour of plaintiff. Issue-3 regarding suit being barred by Section-34, 38 and 41 of Specific Reliefs Act, was also decided in favour of plaintiff and against defendant-1. Issue-4, whether plaintiff is the owner of the disputed property, was decided in favour of plaintiff and against defendant-1. Issue-5, regarding maintainability of Suit, was also decided in favour of plaintiff. Issue-8, whether defendant-3 is an unnecessary party in the suit, was decided in favour of plaintiff, holding that he is the witness of fabricated sale deed in dispute and therefore necessary party. Issue-10, regarding suit being barred by time, was also decided in favour of plaintiff on the ground that there is

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three years limitation provided under law for such suit, which has been instituted within one year of the execution of alleged fabricated sale deed. Issue-11, whether the suit is barred by Section-6 of Specific Reliefs Act, 1963 was decided in favour of plaintiff, holding that there is illegal encroachment over the suit property, which can not be protected under the law. Issue-12, whether constructions of defendant-1 over disputed property were existing prior to institution of suit, was decided holding that while deciding Issues- 1 and 7, finding has already been recorded that alleged sale deed is fabricated, illegal, void and ineffective and possession of defendant1 over the same is illegal, therefore, defendant-1 is in illegal possession and on its basis, has made constructions, prior to and after institution of suit and has no right of protection under Law. His construction would be deemed to be illegal, even though Agra Development Authority has sanctioned construction plan in his favour. Then Issue-6, regarding relief was decided in favour of plaintiff and sale deed dated 04.06.2002 was declared fabricated, void, illegal and ineffective and the possession and construction of defendant-1 over the land in dispute was held to be illegal and the plaintiff was held entitled to the reliefs sought in the suit. By judgment and decree dated 04.02.2018, suit of plaintiff was decreed by Trial Court and against the same, present appeal has been preferred by defendant-1 in the suit.

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This court found two points for determination for deciding this Appeals, as follows:

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(i). Whether sale deed in question held by appellant was forged and fictitious and is void ?

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(ii). Whether defendant-4 had a valid power of attorney operating in his favour on the date alleged sale deed was executed or was revoked by a registered document/ revocation letter dated 26.12.1997 hence defendant-4 had no authority to execute sale deed?.

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Point of determination-i:

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From the plaint averments and the evidence led by plaintiff, it is undisputed that registered sale deed dated 18.11.1993 was executed by Agra

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Development Authority in favour of plaintiff regarding Plot No.18, Bagh Farzana Street Scheme; plaintiff is a non- resident Indian and he executed a registered power of attorney dated 12.04.1993 in favour of defendant-4. 13. The plaintiff’s case is that he cancelled the aforesaid Power of Attorney dated 12.04.1993 executed by him in favour of defendant-4 by registered document/ revocation letter dated 26.12.1997. When he got telephonic information regarding illegal possession of defendant-1 over plot in dispute, he contacted defendant-4, who denied any execution of sale deed in favour of defendant-1. On the contrary, case of defendant-1 is that he got sale deed executed by defendant-4, as Power of Attorney holder of plaintiff, after paying Rs.5 lacs as sale consideration. Defendant-4, Narain Dass Gidwani, has deposed before court below and stated that he neither appeared before Sub-Registrar, Agra nor got any sale consideration, nor executed sale deed dated 04.06.2002 in favour of defendant-1. 14. Original copy of disputed sale deed was in possession of defendant-1 and despite, order of Court to produce the same, he did not complied the order. He took contradictory stand. On the one hand said that original sale deed was lost after 2-3 months of its execution and he made complaint to Police in this regard, but no such Police Report was brought on record. On the other hand, he stated that he mortgaged disputed land with Punjab National Bank and gave sale deed to without any explanation how sale deed which was lost could be mortgaged with Punjab National Bank.

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As per Section-65 (a) of Evidence Act, 1872, certified copy of sale deed, which was brought on record as Paper No.220-Ga/3 though it was not admissible in evidence as secondary evidence since original sale deed in dispute was admittedly in possession of defendant-1 and despite court’s order he failed to produce the same and made contradictory and false statements denying the possession of the same. 16. Before Trial Court, signature and thumb impression of defendant-4 were got examined by a Finger Print and Hand Writing Expert, Sri Deepak Kashyap, by plaintiff. P.W.2, Deepak Kashyap, submitted his report and stated that defendant-4 neither signed the disputed sale deed nor has put his thumb impression over the same.

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Defendant-1 produced report of Sri Alok Kumar Jain, Finger Print and Hand Writing Expert, who deposed as P.W.3, before Trial Court and stated that signature on the disputed sale deed are akin to the specimen signature of defendant-4, but left thumb impressions are not identical. He further stated that some thumb impressions are clear and some are unclear and he can testify only after going through his report. Report of aforesaid Expert produced on behalf of defendant-1, was not found reliable by Trial Court and report submitted by Expert of plaintiff was found reliable.

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This Court in Teeka Ram & another Vs. Daulat Ram and others, 2013 (8) ADJ 617 (Delivered by one of us, Hon’ble Sudhir Agarwal, J) has considered evidentiary value of expert evidence and said as under:-

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“ 13. Evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and external evidence. It has to be considered along with other pieces of evidence. Which would be the main evidence and which is the corroborative one depends upon the facts of each case. An expert's opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to what extent, their views would be made to correspond with the wishes and interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgment becomes so warped by regarding the subject in one point of view, that, when conscientiously deposed, they are incapable of expressing a candid opinion.

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14. When there are contradictory opinion of hand writing experts, it is always open to the Court concerned to form its opinion after careful consideration of expert's opinion as also document concerned. It is not uncommon where two experts employed by different parties gave opinion, heavily influenced by the interest of the party concerned who approach them and it is matter of great concern also that these experts, instead of adhering to their professional expertise with absolute impartiality, unfortunately lean and get influenced and biased by interest of the party, who approach and seek their opinion.

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15. The deformity in the functioning of experts is not new. Historically also the Courts have come across it and made their observation. It is not uncommon where Experts' opinion used to get influenced by their closeness or otherwise relationship developed with the persons who receive their service.

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16. In Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. & Ors. JT 2009 (12) SC 377 Apex Court considered the issue pertaining to expert opinion in a bit detail. In para 11, the Court has said:

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"The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. ... The scientific question involved is assumed to be not with the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:

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i. that the expert must be within a recognized field of expertise ii. that the evidence must be based on reliable principles, and iii. That the expert must be qualified in that discipline."

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17. The Court has also said that in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study on the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge on the subject. Referring to this Court's decision in Mt. Titli Vs. Alfred Robert Jones AIR 1934 All. 273 the Court said that it is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce 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. Again in para 15 of the judgment in Ramesh Chandra Agrawal (Supra), the Court said:

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"An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors.) Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009."

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18. It also referred to an earlier decision in The State (Delhi Administration) Vs. Pali Ram AIR 1979 SC 14 where the Court said "No expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials as put before him and the nature of question put to him" and further in para 17 of the judgment in Ramesh Chandra Agrawal (supra) the Court said:

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"In the Article "Relevancy of Expert's Opinion" it has been opined that the value of expert opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value." (emphasis added)

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19. Musheer Khan @ Badshah Khan & Anr. Vs. State of Madhya Pradesh AIR 2010 SC 762 is a very recent judgment where the Court has said "under the Evidence Act the word 'admissibility' has very rarely been used. The emphasis is on relevant facts. In a way relevancy and admissibility have been virtually equated under the Indian Evidence Act." Further referring to the opinion of finger print expert in that matter it says, that, it is well known that the evidence of finger print expert falls under the category of expert evidence under Section 45 but it is also clear that this evidence of finger print expert is not substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record.

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20. Lord Campbell in Tracy Perrage Case (1843) 10 CI & F 154 said that, being zealous partisans, their belief becomes synonymous with faith as defined by the Apostle, and it too often is but "the substance of things hoped for, the evidence of things not seen". He also said that, skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight may be given to their evidence.

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21. Miller J in Middllings P Co. Vs. Christian, 4 Dillon 448 said, "By own experienced both in the local courts and in the Supreme Court of the United States is, that whenever the matter in contest involves an immense sum in value, and when the question turns mainly upon opinions of experts, there is no difficulty in introducing any amount of them on either side."

¶74

22. It would further be useful to quote from Sarkar's Law of Evidence, 16th Edition, 2007 Vol. 1, page 1052:

¶75

"The infirmity of expert evidence consists in this that it is mostly matters of opinion and is based on facts detailed by others or assumed facts or opinion against opinion and experts are selected by parties by ascertaining previously that they will give an opinion favourable to the party calling them. Expert evidence is however, of value in cases where the courts have to deal with matters beyond the range of common knowledge and they could not get along without it, eg in matters of scientific knowledge or when the facts have come within the personal observation of experts."

¶76

23. The learned author on page 1053 (supra) also said, An expert is fallible like all other witnesses and the real value of his evidence consists in the logical inferences which he draws from what he has himself observed, not from what he merely surmises or has been told by others. Therefore in cross- examining him, it is advisable to get at the grounds on which he bases his opinion. There is special difficulty in dealing with the evidence of expert witnesses. Such evidence must always be received with caution; they are two often partisansthat is, they are reluctant to speak quite the whole truth, if the whole truth will tell against the party who had paid them to give evidence. At the same time such witnesses are in a position of advantage; for they have had that special training and experience which the judge and jury are without; and the absence of which renders necessary the presence of such witness. Expert witnesses are far too prone to take upon themselves the duty of deciding the questions in issue in the

¶77

¶78

action, instead of confining themselves to stating fairly and clearly their real opinion on the matter.

¶79

24. In Gulzar Ali Vs. Sate of Himachal Pradesh 1998 (2) SCC 192 the Court observed that the observation of the High Court that there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. Many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them.

¶80

25. In Hari Singh Vs. Lachmi, 59 IC 220 the Court observed that the evidence of skilled witness, howsoever eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, howsoever confidently he may speak, is ordinarily a matter of mere opinion. Human judgment is fallible. Human knowledge is limited and imperfect. An expert witness howsoever impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests.

¶81

26. In Lalta Prasad Vs. Emperor 5 IC 355, the Judicial Commissioner, Oudh observed :

¶82

"Expert testimony derived from comparison of handwriting is no doubt very valuable as evidence corroborating the direct evidence if any upon the point, but it is only in rare cases that it can take its place."

¶83

27. A Single Judge of this Court also expressed the same opinion in Saqlain Ahmad Vs. Emperor AIR 1936 Alld. 165 observing :

¶84

"The value of the expert evidence depends largely on the cogency of the reasons on which it is based. In general it cannot be the basis of conviction unless it is corroborated by other evidence."

¶85

28. Hon'ble Subba Rao (C.J.) (as His Lordship then was) in Guntaka Hussenaiah Vs. Busetti Yerraiah AIR 1954 Andhra 39 said :

¶86

"The expert's evidence is only a piece of evidence. A Judge of fact will have to consider that evidence along with the other pieces of evidence. Which is the main evidence and which is the corroborative one depends upon the facts of each case." (emphasis added)

¶87

29. In Magan Bihari Lal Vs. State of Punjab AIR 1977 SC 1091, the Court held that 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. This type of evidence, being opinion evidence, is by its very nature, weak and infirm.

¶88

30. The caution, the Court must exercise while considering opinion rendered by

¶89

¶90

an expert is expressed in Murarilal Vs. State of M.P. AIR 1980 SC 531, where the Court held:

¶91

"But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria

¶92

to the facts proved in evidence'." (Para 4)

¶93

"Reasons for the opinion must be carefully probed and examined. ... In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. ..." (Para 11)

¶94

31. In State Vs. Kanhu Charan Barik 1983 Cr.L.J. 133, a Division Bench of Orissa High Court held :

¶95

"Evidence of experts after all is opinion evidence. The opinion is to be supported by reasons. The Court has to evaluate the same like any other evidence. The reasons in support of the opinion, if convincing, make the opinion acceptable. There is no place for ipse dixit of the expert. It is for the court to judge whether the opinion has been correctly reached on the data available and for the reasons stated." (emphasis added)

¶96

32. In Forest Range Officer & others Vs. P. Mohammed Ali & others AIR 1994 SC 120, it was observed :

¶97

"The expert opinion is only an opinion evidence on either side and does not aid us in interpretation."

¶98

33. It would be prudent to quote the following passage from Taylor's Law of Evidence, page 1344, para 1877 about the admissibility of evidence of experts :

¶99

"Still as experts usually come with a bias on their minds to support the cause in which they are embarked, little weight will in general be attached to the evidence which they give, unless it be obviously based on sensible reasoning."

¶100

34. In Mt. Titli Vs. Alfred Robert Jones AIR 1934 All. 273, it was observed:

¶101

"The opinion of an expert by itself may be relevant but would carry little weight with a Court unless it is supported by a clear statement of what he noticed and on what he based his opinion. The expert should, if he expects his opinion to be accepted, put before the Court all the materials which induced him to come to his conclusion, so that the Court, although not expert, may form its own judgment on those materials. ... The mere mention that certain kind of tests knows as Binet and Simon tests were applied and certain results were obtained, might be relevant as piece of evidence but would not be conclusive." (emphasis added)

¶102

35. In Palaniswamy Vaiyapuri Vs. State AIR 1968 Bombay 127, a Division

¶103

¶104

Bench of Bombay High Court in para 11 of the judgment said :

¶105

"The opinion of an expert must be supported by reasons and it is the reasons and not ipse dixit which is of importance in assessing the merit of the opinion."

¶106

36. In Sita Nath Basak Vs. Mohini Mohan Singh AIR 1924 Cal. 595, a Division Bench of Calcutta High Court observed that in the matter of infringement of copyright, the Court should be reluctant to sit as an expert to decide the question of infringement of copyright and the proper course, in ordinary circumstances, is to get the opinion of experts. This was explained in Government of West Bengal Vs. Nitya Gopal Basak & others 1985 CRI.L.J. 202 by a learned Single Judge of Calcutta High Court that the above view was expressed primarily on the ground that the Court would have to take great pains and would have to waste its valuable time to ascertain how far the piracy extended and it was desirable therefore to seek opinion of expert to compare the works and to ascertain the details to avoid excessive expenditure of time and labour. It was also pointed out that such a course was also necessary as the Court might not be conversant with the alphabets of the book.

¶107

37. In the context of opinion of Handwriting Expert, in Fakhruddin Vs. State of Madhya Pradesh AIR 1967 SC 1326, the Court held that the opinion of Handwriting Expert though is relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. Reliance was placed on earlier decisions in Ram Chandra Vs. State of Uttar Pradesh AIR 1957 SC 381 (at page 388) and Ishwari Prasad Misra Vs. Mohammad Isa AIR 1963 SC 1728 where it was observed that expert evidence as to handwriting is an opinion evidence and it can rarely, if ever, take the place of substantive evidence. It cannot be conclusive because it is after all opinion evidence. In para 11 of the judgment in Fakhruddin (supra), the Apex Court further observed, where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.

¶108

38. In re B. Venkata Row (1913) 36 Mad. 159 a passage from Dr. Lawson's work on the "Law of Expert and Opinion Evidence" was quoted, which reads :

¶109

"The evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. It must be confessed however that it is of the lowest order of evidence or of the most unsatisfactory character. We believe that in this opinion experienced laymen unite with the members of the legal profession. Of all kinds of evidence admitted in a Court this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence." (emphasis added)

¶110

39. This was followed in Indar Datt Vs. Emperor AIR 1931 Lahore 408. A Similar observation was made by Division Bench of this Court in Srikant Vs. King Emperor (1905) 2 ALJ 444 and Kali Charan Mukerji Vs. Emperor (1909) 9 Cr.L.J. 498.

¶111

¶112

40. In Sudhindra Nath Vs. The King AIR (39) 1952 Cal. 422, it was observed :

¶113

"We are now left with the evidence of identification by the hand-writing Expert. With regard to this class of evidence, it is a rule of law that it is extremely unsafe to base a conviction upon the opinion of hand-writing experts. Without substantial corroboration; because it is well known that a comparison of handwriting as a mode of proof is always hazardous & inconclusive, unless it is corroborated by other evidence."(emphasis added)

¶114

41. In Perumal Mudaliar Vs. South Indian Railway Company Ltd. AIR 1937 Mad. 407 the manner of recording opinion of expert was considered and a

¶115

Single Judge (Hon'ble Beasley, C.J.) said :

¶116

"The evidence of experts must be given in the ordinary way. Subject to certain exceptions- those exceptions being amongst others, the certificates of the Imperial Serologist touching the matter of bloodstains and of the Chemical Examiner, which are made admissible in evidence by themselves-it is quite obvious that the opinion of an expert must be given orally and that a report merely or certificate by him cannot possible be evidence. Unless he goes into the witness box and gives oral evidence, there can be no cross examination of the expert at all." (emphasis added)

¶117

42. In Haji Mohammad Ekramul Haq Vs. The State of West Bengal, AIR 1959 SC 488 the Court held that an opinion of expert unsupported by any reason is not to be relied on.

¶118

43. In The Forest Range Officer and others Vs. P. Mohammed Ali and others, AIR 1994 SC 120 the Court said:

¶119

"The expert opinion is only an opinion evidence on either side and does not aid us in interpretation." (para 8)

¶120

44. Who an expert witness would be, has been considered in State of Himachal Pradesh Vs. Jai Lal and others, AIR 1999 SC 3318 and it says:

¶121

"An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice; or observations; and the must have a special knowledge of the subject." (para 13)

¶122

"Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject." (para 17)

¶123

"18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions."

¶124

"19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination." (emphasis added)

¶125

45. In Murari Lal Vs. State of Madhya Pradesh 1980 SCC (Cri) 330, it was held that the Court itself can compare writings since it is so enabled vide Section 73 of the Evidence Act. The Expert's opinion only act as an aid to the Court and not

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¶127

binding on it. In absence of reliable Expert's opinion or no opinion, the Court can seek guidance from authoritative text books, own experience and knowledge.

¶128

46. To the same effect is the decision in Lalit Popli Vs. Canara Bank and others (2003) 3 SCC 583.

¶129

47. In the light of the above discussion of law in the context of expert's opinion and in particular, finger print expert, I propose to look into the record of this case to find out whether the same satisfy legal requirement or not.

¶130

48. T.C. has disbelieved to rely on opinion of PW-3 giving reasons based on opinion of PW-3 which contains the reasons to form opinion that thumb impression tally with that of defendant no.1. The T.C. has observed:

¶131

"The opinion of Finger Print Expert is not based on sound reasonings. It is evident from record that in the specimen thumb impression, there is crease, whereas in the disputed thumb impression, there was no crease at all. Further, this witness had conceded that in one thumb impression, delta is not visible and ridges can also not be counted. In view of existence of crease in the specimen thumb impression and its absence in the disputed thumb impression, I am not inclined to accept the opinion of this Finger Print Expert."

¶132

49. The observations and comments of T.C. in respect to reasoning of PW-3 so as to form opinion has not at all been touched by L.A.C. and there is no finding that said comments and observations made by T.C. in respect of opinion of PW3 is incorrect or there is any misreading etc. Without reversing the aforesaid reasoning, it was not legally permissible for L.A.C. to hold that expert's opinion ought not to have been disbelieved only for the reason that defendant no.1 did not adduce another expert's opinion in support of her case. It is true that L.A.C. being the last court of fact could have reversed a finding of fact recorded by T.C. but unless reasoning assigned by T.C. to form opinion in one or the other way is discussed and found erroneous, L.A.C. could/should not have reversed a finding of fact recorded by T.C.. In this regard it would be apt to reproduce certain authorities commenting upon circumstances and the manner in which L.A.C. should look into findings of T.C. In an eventuality of reversal.

¶133

50. In S.V.R.Mudaliar (Dead) by Lrs. and Ors. Vs. Rajabu F.Buhari (Mrs) (Dead) by Lrs. and Ors. AIR 1995 SC 1607, the Court in paras 14 and 15 of the judgment has upheld the contention that though the appellate court is within its right to take a different view on the question of fact, but that should be done after adverting to the reasons given by T.C. in arriving at the findings in question. The L.A.C. before reversing a finding of fact has to bear in mind the reasons ascribed by T.C. The apex court relied and followed an earlier decision of Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, 10 CWN 630 and in para 15 of the judgment said:

¶134

"There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate court has to bear in mind the reasons ascribed by the trial court. This view of ours finds support from what

¶135

¶136

was stated by the Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, (1906) 10 Cal.W.N. 630, wherein, while regarding the appellate judgment of the High Court of judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge."(emphasis added)

¶137

51. Following the above decision, Hon'ble B.L.Yadav, J in Smt. Sona Devi Vs. Nagina Singh and Ors. AIR 1997 Patna 67 observed that whenever judgment of L.A.C. is a judgment of reversal, it is the primary duty of L.A.C. while reversing findings of T.C. to consider the reasons given by T.C. and those reasons must also be reversed. Unless that is done, judgment of L.A.C. cannot be held to be consistent with the requirement of Order XLI, Rule 31, which is a mandatory provision.

¶138

52. The above view has also been followed recently in Jaideo Yadav Vs. Raghunath Yadav & Anr., 2009(3) PLJR 529 wherein the Court said that T.C. recorded its findings but L.A.C. had not reversed the said findings and rather on the basis of some findings of its own, title appeal was allowed by L.A.C. without appreciating findings of T.C. on the concerned issue. The court then said :

¶139

"The law is well settled in this regard that where the judgment of the lower appellate court is a judgment of reversal it is primary duly of the appellate court to consider the reasons given by the trial court and those reasons must also be reversed." (emphasis added)

¶140

53. This court has also followed the same view in Doodhnath and Anr. Vs. Doodhnath and Anr., AIR 2006 Allahabad 3. ”

¶141

From the above consideration of law on the evidentiary value of expert evidence, it is clear that it is only a piece of evidence required to be considered along with other evidence led in the case and where there is conflicting expert evidence on record, Court is required to consider both and accept the one which appears to be correct in the light of other corroborative evidence on record.

¶142

In the present case Court below has accepted expert evidence led by plaintiff and disbelieved the one led by defendant-1. In the light of evidence of witnesses, report of expert led by plaintiff appears to be correct and reliable. Expert of defendant-1 had not been able to prove his findings before Trial Court in cross- examination, and therefore, his report was rightly not accepted by Trial Court.

¶143

The witness of the disputed sale deed, Preetpal Singh, defendant-3, appeared as D.W.4 before Trial Court and in his cross examination admitted that he only signed document as a witness of its due execution, but he never

¶144

¶145

identified defendant-4. Even defendant-1 admitted that D.W.4 never identified defendant-4. Trial Court found evidence of defendant-3 unreliable because he was brother-in-law of defendant-1 and was giving false evidence. Even a perusal of written statement filed by defendant-3 proves that he has not pleaded that he knew defendant-4 and he identified him before Sub Registrar. Therefore, testimony of defendant-3 would not help defendant-1. 22. Moreover, there is contradiction in the manner of passing of sale consideration. Defendant-1 has stated in written statement that he paid Rs.5 lacs for execution of disputed sale deed to defendant-4. However, in his statement has stated that he paid Rs.2 lacs to defendant-4 at his house which he had withdrawn from Bank, one or two days back, and got Rs.3 lacs from transaction regarding a plot which he paid to him before Registrar. He further stated that he has disclosed the amount of Rs.5 lacs in Income Tax Return, but no such Return was brought on record. Who paid Rs.3 lacs to defendant-1 was also not proved and therefore, Trial Court rightly found that evidence regarding passing of consideration, led by defendant-1 is false.

¶146

Further the question of photograph of defendant-4 on the disputed sale deed has been considered and decided by Court below holding that defendant-1 was his employee and it is quite possible that he had got the photograph of defendant-4. Court below has found explanation regarding photograph of defendant-4 over the disputed sale deed to be plausible and to us it also does not appears to be wrong.

¶147

Therefore, Point No.1, is decided against defendant appellant, holding that sale deed held by appellant was forged, fictitious and void document. Point of determination (ii) : 25. The plaintiff’s case and evidence is to the effect that power of attorney dated 12.04.1993, executed in favour of defendant-4 before Sub-Registrar, Agra was cancelled by registered document/ revocation letter dated 26.12.1997. Defendant-4 and Agra Development Authority etc., were duly informed. Document dated 26.12.1997, revoking power of attorney dated 12.04.1993 was brought on record by plaintiff. Notices were sent to Narain Dass Gidwani, defendant-4 and another brother of plaintiff, Ashok Ishwar Dass Gidwani, from Hong Kong to their addresses of Agra and Pune and

¶148

¶149

notice send to Agra Development Authority, were brought on record. Defendant-4 admitted receipt of information regarding Power of Attorney revocation document dated 26.12.1997. In view of admission of defendant-4, regarding notice of revocation of power of attorney and no evidence to the contrary led by defendant-1, it is clear that defendant-4 ceased to have any authority to execute a sale deed of disputed land.

¶150

Trial Court has relied upon definition of word “registered” given under Section-3 of Act, 1882, which means registered in any part of territories to which the Act extends under law for the time being in force regulating registration of documents. Further reliance has been placed upon Explanation I, to the aforesaid Section, which is as follows:

¶151

“Explanation I: Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub- section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earlier date on which any memorandum of such registered instrument has been filed by any Sub- Registrar within whose subdistrict any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated; ]

¶152

Provided that-

¶153

(1). The instrument has been registered and its registration completed in the manner prescribed bythe Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,

¶154

(2). The instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and

¶155

(3). The particulars regarding the transaction to which the instrument relates have been correctly entered in the

¶156

¶157

indexes kept under section 55 of that Act.”

¶158

Relying upon the above provision of the law, Trial Court has rightly held that notice of deed of cancellation of Power of Attorney on defendant-1 is sufficient. The contention of defendant-1 that there was no publication of notice regarding cancellation of power of attorney dated 12.05.1993 executed by plaintiff in favour of defendant-4, therefore, can not be accepted to be a legal and valid defence, since from the date of registration of deed of revocation of Power of Attorney, notice is deemed on the person acquiring such property from the date of registration of the document.

¶159

It is further notable that the sale deed in dispute was executed prior to free hold deed and therefore, without the land in dispute being declared free hold, sale of the same could not have been done on the basis of the disputed sale deed and findings of Trial Court in this regard are correct.

¶160

Finding of Trial Court that disputed sale deed was got executed collusively by defendant-1 by setting up some one in place of defendant-4 for getting sale deed executed from him on the basis of Power of Attorney is correct. Neither defendant-1 nor defendant-3 have been able to prove presence of defendant-4 before Sub Registrar, Agra and also execution of disputed sale deed by him in favour of defendant-4.

¶161

In view of the above discussion, it is clear that the defendant-4 did not have any power of attorney operating in his favour on 04.06.2002 and earlier Power of Attorney dated 12.04.1993 stood revoked by revocation deed dated 26.12.1997, hence defendant-4 had no authority to execute sale deed in favour of defendant-1 and never executed any such sale deed. 31. Therefore, point of determination no. (ii) is also decided against the defendant- appellant. 32. After consideration of both the points of determination, we answer them against defendant- appellant. This appeal thus deserves to be dismissed. It is dismissed accordingly with costs.

¶162

Order Date :- 13.2.2018 SS

Trilok Rathore v. Kanhaiya Gidwani and Others

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Trilok Rathore v. Kanhaiya Gidwani and Others

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