Dismissed

Smt Radha v. Deepak

Karnataka HC25 Sept 2024RSA/8/2016

Case brief

AI extract

What is this about?

Cross-appeals over a disputed agreement of sale and possession of a house: Radha claimed specific performance based on an agreement allegedly executed by Krishnadas, while purchaser Sarojamma sought possession. The High Court upheld concurrent findings that the agreement was unproven, confirmed both decrees, and dismissed the appeals with Rs.50,000 costs for abuse of process by the tenant's side.

What did the court decide?

Appeals dismissed; decrees below confirmed; appellant to pay Rs.50,000 cost to Karnataka State Legal Services Authority within four weeks.

Smt Radha Vs Deepak — Specific Performance | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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REGULAR SECOND APPEAL NO.8 OF 2016 (POS) C/W REGULAR SECOND APPEAL NO.9 OF 2016 (SP)

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IN R.S.A. No.8/2016

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BETWEEN:

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SMT. RADHA AGED ABOUT 55 YEARS, W/O. P. NARAYANA, R/AT D.NO.1424, PALACE SYCES QUARTERS, PEER KHAN STREET, NAZARABAD MOHALLA, MSYORE – 577 001. ... APPELLANT

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(BY SRI KRISHNAMURTHY G. HASYAGAR, ADVOCATE)

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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DEEPAK AGED ABOUT 46 YEARS, S/O. LATE KRISHNADAS, R/AT D.NO.1083, II CROSS, T. NARASIPURA ROAD, SIDDARTHA NAGAR, MYSORE – 570 011.

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SMT. SAROJAMMA AGED ABOUT 52 YEARS, W/O. B. RAMEGOWDA, R/AT D.NO.551, III CROSS, KAMATGERI, NAZARABAD MOHALLA, MYSORE – 570 011. ... RESPONDENTS (BY SRI RAJESWARA P.N., ADVOCATE FOR R-1; SRI PRABHAKAR L. SHETTY, ADVOCATE FOR R-2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.09.2015 PASSED IN R.A.NO.596/2011 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 22.08.2011 PASSED IN O.S.NO.318/1999 ON THE FILE OF THE III ADDL. SR. CIVIL JUDGE AND CJM, MYSORE.

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IN R.S.A. NO.9/2016

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BETWEEN:

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SMT. RADHA AGED ABOUT 55 YEARS, W/O. P. NARAYANA, R/AT D.NO.1424, PALACE SYCES QUARTERS, PEER KHAN STREET, NAZARABAD MOHALLA, MSYORE – 577 001.

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... APPELLANT

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(BY SRI KRISHNAMURTHY G. HASYAGAR, ADVOCATE)

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AND:

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DEEPAK AGED ABOUT 46 YEARS, S/O. LATE KRISHNADAS, R/AT D.NO.1083, II CROSS, T. NARASIPURA ROAD, SIDDARTHA NAGAR, MYSORE – 570 011.

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SMT. SAROJAMMA AGED ABOUT 52 YEARS, W/O. B. RAMEGOWDA, R/AT D.NO.551, III CROSS, KAMATGERI, NAZARABAD, MYSORE – 570 011. ... RESPONDENTS

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(BY SRI RAJESWARA P.N., ADVOCATE FOR R-1; SRI PRABHAKAR L. SHETTY, ADVOCATE FOR R-2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.09.2015 PASSED IN R.A.NO.597/2011 ON THE FILE OF THE II ADDL. DISTRICT JUDGE,

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MYSURU, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 22.08.2011 PASSED IN O.S.NO.507/1997 ON THE FILE OF THE III ADDL. SR. CIVIL JUDGE AND CJM, MYSORE.

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THESE APPEALS COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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RSA No.8/2016 is preferred by defendant No.1-

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Radha against the concurrent findings of the Courts below, whereby, the suit of Sarojamma in O.S.No.318/1999 was decreed directing defendant No.1-Radha to handover the actual vacant possession of the suit schedule property.

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RSA.No.9/2016 is preferred by Radha-plaintiff

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in O.S.No.507/1997 against the concurrent findings of facts recorded by the Courts below, whereby, the suit of the plaintiff-Radha for specific performance of contract was dismissed.

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The parties herein are referred to as per the ranking before the trial Court in O.S.No.507/1997, Radha-

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plaintiff, Deepak- defendant No.1 (LR of late Krishnadas) and Sarojamma-defendant No.2.

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This Court, while admitting the appeal on 07.12.2016, framed the following substantial questions of law:

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“(1) Whether the Trial Court and the first appellate court have committed any serious legal error in comparing the signatures of the Krishnadas on the disputed agreement of sale Ex.D8 with that of other documents i.e., Exhibits P1 and P2 and holding that the signatures does not tally with each other without the help of the experts evidence.?

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(2) Whether the courts below have committed any legal error that the agreement of sale is not a registered document and not signed by the appellant. Therefore, the specific performance cannot be granted on such agreement of sale?

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(3) Whether the Trial Court and the first appellate court have committed any legal error in construing Ex.D8 as an agreement and not as an un-registered sale deed and even it cannot be used for collateral purpose to ascertain the possession of the appellant in view of the respondent has

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admitted the possession of the appellant over the suit schedule property?

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(4) Whether the first appellate court and the Trial Court have committed any serious legal error in rejecting the application filed by the appellant under order 41 Rule 27 before the first appellate court without assigning any reasons in rejecting the same though they are relevant documents ought to be considered?

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(5) Whether the Trial Court and the first appellate court have committed any legal error in not considering the possession of the appellant on the basis of the agreement of sale executed by Krishnadas.?”

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During the course of the argument, the

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following additional substantial question of law was framed by this Court on 20.09.2024:

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"Whether the First Appellate Court judgment is in accordance with the Order XLI Rule 31 CPC?"

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Sri Krishnamurthy G.Hasyagar, learned counsel

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for the appellant and Sri Prabhakar L.Shetty, learned counsel for the respondents have been heard on the

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substantial questions of law framed by this Court on

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07.12.2016 and the additional substantial question of law.

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Learned counsel for the appellant would urge the following grounds:

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i. That the judgment of First Appellate Court is not in accordance with Order XLI Rule 31 CPC, as the First Appellate Court has not framed proper points for consideration and non-framing of proper points for consideration has resulted in the judgment deviating from the factual aspect.

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ii. Ex.D.8-the agreement of sale executed by Krishnadas was due to financial difficulties faced by Krishnadas, which is categorically admitted by his son Deepak-D.W.1 in his cross-examination and the said aspect has been totally ignored by the Courts below.

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iii. The Trial Court has committed serious error in comparing the signature of Krishnadas in Ex.D.8 with that of the other admitted signatures without the help of the

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experts opinion and erroneously held that the said signature is of Krishnadas.

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iv. That the comparison of signature in Ex.D.8 by the Trial Court was not in accordance with law, as the Courts should not have taken up the responsibility of comparing the disputed signature or handwriting with the admitted signatures or handwriting unless a report is solicited from the expert and such an examination requires scientific exercise.

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v. The Trial Court and the First Appellate Court have committed serious error, without appreciating Ex.D.8

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in a proper manner that it is an agreement of sale executed by the said Krishnadas and the appellant continued to be in possession of the property, as she is the daughter-in-law of the erstwhile tenant Kattige Puttaswamy (‘K. Puttaswamy’ for short).

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vi. Suit was filed in the year 1997 itself by Radha, but during the pendency of the suit, Krishnadas sold the properties and the Trial Court has not considered the effect

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of Section 52 of the Transfer of Property Act, 1882 (‘the TP Act’ for short).

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vii. That even prior to 14.05.1995, Ex.D.8 - agreement of sale executed in favour of the appellant by Krishnadas, possession was delivered to the appellant and

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during the pendency of the execution, as per the agreement of sale - Ex.D.8, possession of the suit property was delivered to the appellant.

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viii. The application made by the appellant under Order XLI Rule 27 CPC has not been properly considered by the First Appellate Court.

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ix. In support of his contentions, learned counsel has placed reliance on the following decisions.

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1. Alka Bose Vs. Parmatma Devi & Ors¹ (Alka

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Bose)

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2. Thiruvengadam Pillai Vs. Navaneethammal & Another² (Thiruvengadam Pillai)

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3. Chidanandaswamy Bellary and Another Vs. Shadaksharayya³ (Chidanandaswamy Bellary)

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1 AIR 2009 SC 1527

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2 (2008) 4 SCC 530

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3 ILR 2015 KAR 520

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4. Verupegowda And Another Vs.

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Shankaregowda And Another⁴ (Verupegowda)

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5. O Bharathan Vs. K Sudhakaran and Another⁵ (O Bharathan)

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6. V. Ramachandrappa Vs. H. Krishnappa & Another⁶ (V. Ramachandrappa).

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Per contra , learned counsel appearing for the

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respondents justifying judgment and decree of the Courts below would urge the following grounds:

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i. That the Courts below have rightly arrived at a conclusion that the plaintiff has failed to establish about any execution of agreement of sale by Krishnadas in favour of the appellant and not committed any error in decreeing the suit of the Sarojamma and dismissing the suit of the appellant-Radha.

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ii. That the Court is the expert of experts under Section 73 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short) and it has power to compare the admitted signatures with the disputed signatures, and the Courts

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4 ILR 2009 KAR 1867

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5 AIR 1996 SC 1140

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6 RFA NO.885/2006

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below have not only compared the signature and arrived at a conclusion as per Section 73 of the Evidence Act, but also considered the supporting evidence for the Court to reach at a conclusion that the signatures found on Ex.D.8 is not the signature of Krishnadas.

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iii. That the concurrent findings recorded by the Courts below does not warrant any interference by this Court and the substantial questions of law framed by this Court needs to be answered against the appellant.

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This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record, including original records.

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Brief facts needs to be stated here is that:

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i. Krishnadas was the owner of two house properties, that is property No.1425 (old No.668) and suit property No.1424 (old No.667). Tenant-K. Puttaswamy was in occupation of the suit property and plaintiff-Radha is the daughter-in-law of K. Puttaswamy. Krishnadas

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instituted HRC proceedings against the father-in-law of the appellant in respect of suit property and another tenant, in HRC Nos.146/1972 and 147/1972. The HRC proceedings concluded in a decree in favour of Krishnadas, tenants preferred revision petitions in RP Nos.94/1981 and 96/1981, the revision petitions were dismissed and order

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in favour of Krishnadas stood confirmed. Krishnadaslandlord initiated execution proceedings against the tenants therein in EP No.13/1998 against Narasamma and EP No.14/1995 against K. Puttaswamy, dead by LRs. In the execution proceedings, it was recorded on 22.07.1995

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as under:

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“22.07.95 : D.Hr. by T.N.R.

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J.D.R. in person .

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D/W duly executed

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Handed over vacant possession to D.Hr.

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Perused the shara, Mahazar and delivery receipt. Delivery is accepted. Consequently, the petition shall stand closed File.”

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In the execution proceedings as stated supra, the LRs of K. Puttaswamy and Krishnadas accepted about the delivery of possession as per the delivery report dated 06.07.1995 and the Court accepted the delivery report on 22.07.1995, pursuant to which, Krishnadas was in possession of the suit property.

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Plaintiff-Radha (daughter-in-law of tenant-K. Puttaswamy) filed O.S. No.507/1997 contending that the plaintiff came to know about defendant No.1-Krishnadas selling the suit property, the plaintiff along with her father met the defendant and an agreement to sale dated 14.05.1995 was executed by defendant No.1-Krishnadas, who agreed to sell the suit property in favour of the plaintiff. According to the plaintiff, defendant No.1 – Krishnadas agreed to receive a sum of Rs.40,000/- by way of earnest money and the defendant received Rs.10,000/-, and Rs.30,000/- was to be paid at the time of registration. The case of the plaintiff-Radha is that, based on the agreement of sale, the plaintiff came in possession and

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enjoyment of the suit property and the plaintiff is enjoying the suit schedule property in a capacity of agreement holder, as defendant No.1-Krishnadas did not come forward for execution of the sale deed and hence, the suit seeking relief of specific performance of contract. During the pendency of the suit, Krishnadas died and his LRDeepak was brought on record. Defendant No.2Sarojamma was impleaded in the suit in light of the execution of the sale deed by Krishnadas on 09.12.1998 in favour of Sarojamma.

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Defendant No.2-Sarojamma filed written statement, inter alia, contending that she has purchased the suit property along with the adjacent property bearing door No.1245 under registered Sale Deed dated 09.12.1998 from defendant No.1-Krishnadas for sale consideration of Rs.2,80,000/-. Defendant No.2 narrated the facts about defendant No.1 having fought the litigation, where the tenants were in occupation of the suit schedule property and another, defendant No.2 specifically

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contended that the plaintiff is the daughter-in-law of K. Puttaswamy and who was a judgment debtor in execution No.14/1995, and defendant No.1-Krishnadas had obtained possession from the LRs of K. Puttaswamy and one of the LRs of K. Puttaswamy named Narayan is the husband of the plaintiff and further stated that the suit for specific performance is instigated by the judgment debtors in EP No.14/1995 and the alleged agreement of sale dated 14.05.1995 is concocted, neither defendant No.1 has executed any agreement of sale nor has affixed his signature on the agreement of sale. Defendant No.1

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having fought litigation against the tenant, the tenant has implicated the plaintiff and concocted agreement of sale, the specific performance based on the agreement is liable to be dismissed.

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Defendant No.2-Sarojamma filed O.S.

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No.318/1999 seeking possession of the suit schedule property on the ground that she has purchased the suit property under registered sale deed dated 09.12.1998,

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pursuant to an agreement of sale executed by defendant No.2-Krishnadas. Defendant No.2-Sarojamma plaintiff in O.S.No.318/1999 took similar plea as taken in her written statement in O.S.No.507/1997. The plaintiff-Radha filed written statement denying the plaint averments in O.S. No.318/1999.

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The Trial Court clubbed both the suits in O.S.Nos.318/1999 and 507/1997 and on the basis of the

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pleadings, oral and documentary evidence arrived at a conclusion that:

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i. Plaintiff-Radha has failed to prove that

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defendant No.1-Krishnadas has executed an agreement of sale dated 14.05.1995;

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ii. Sarojamma-plaintiff in O.S.No.318/1999 has acquired the title over the suit schedule property and she is entitled for possession from Radha; and

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iii. By judgment and decree, decreed the suit in O.S.No.318/1999 filed by Sarojamma for possession and directed Radha to handover vacant possession of the suit

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schedule property and dismissed the suit in O.S.No.507/1997 filed by plaintiff-Radha seeking specific performance of contract.

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The First Appellate Court, while re-appreciating and reconsidering the entire oral and documentary evidence independently, concurred with the judgment and decree of the Trial Court and dismissed the appeals preferred by Radha.

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Re: Additional Substantial Question of law:

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The first appeal is a valuable right and the First Appellate Court while dealing with an appeal has to reconsider and re-appreciate the entire oral and documentary evidence, as the entire case is open before the First Appellate Court on facts as well as on law. Bearing in mind the scope and ambit of Order XLI Rule 27, this Court has perused the judgment of the First Appellate Court, the First Appellate Court while re-appreciating the entire oral and documentary evidence has framed the following points for consideration:

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i. Whether the lower Court erred in not believing Ex.D8 agreement of sale produced by promise?

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ii. Whether the sale deed executed by vendor Krishnadas in favour of purchaser Sarojamma as per Ex.P1 is executed in violation of interim order of Court and thereby it is illegal?

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iii. Whether the applications filed by promise / appellant deserves to be allowed?

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iv. What order?”

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It is no doubt desirable that, the appellate Court should comply with the requirements of Order XLI Rule 31 CPC and if it is possible to make out from the judgment that there is substantial compliance with the said requirements, and that justice has not suffered thereby, that would be sufficient. The perusal of the judgment makes out that the appellate Court has considered the entire evidence on record and discussed in detail and arrived at a conclusion that findings are supported by reasons, and the judgment is not vitiated in any manner, the First Appellate Court has properly

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appraised the case and weighed and balanced the evidence, facts, and other considerations, appearing on both sides and clearly manifest from the perusal of the judgment of the First Appellate Court is justified. The object of Rule 31 Order XLI in making it incumbent upon the appellate Court to frame points for consideration for the reason that the First Appellate Court would cite the reasons for the decision and a focus would be by the Court on the rival contentions. At this point, it is relevant to note that, the Apex Court, in the case of Girija Nandini Devi and others Vs. Bijendra Narain Choudhary⁷ at paragraph No.12, has held as under:

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“ 12. Reliance was also placed upon certain recitals in Ext. 29(c) — a certified copy of the preliminary decree — in Suit No.27 of 1923 produced by the appellants. Under the heading “Bithnouli Khemchand Khewat” Several khasra nos. are set out and in the remarks column there is a recital “Purchased from Ajab Lall Jha and others by virtue of kewala” dated the 23rd Phagun 1329 M.S. in the name of Mode Narain Chaudhry. Properties purchased in the name of Defendants 5 and 6, are

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7 AIR 1967 SC 1124

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their private and separate properties. The rest of properties are held by each of the Defendants 4 to 8 in equal shares. “It was urged that this recital also evidenced severance between Bijendra Narain and Bidya Narain of the joint family status by the preliminary decree. But the trial court held that the recital commencing from “Properties purchased” to “equal shares” is an interpolation and with that view the High Court agreed. It appears that there are several certified copies of the preliminary decree on the record, and in some of these certified copies the recital on which reliance was placed is not found incorporated. The trial court on a review of the evidence came to the conclusion that this recital which is said to be made in the handwriting of Mode Narain who is a party to this litigation — could not be relied upon since it was not found in the certified copies of the same decree furnished on earlier occasions. Before the trial court, it appears Exts. 29 & 29(b) — the certified copies of the same decree Ext. 29 obtained by Narendra Narayan Choudhary (Defendant 12 in the suit) Ext. 29(b) obtained by the Darbhanga Raj on September 19, 1934 and May 24, 1940 respectively were produced, and they did not contain the recital. It is true that there are certain omissions in the certified copy Ext. 29(b) obtained by the Darbhanga Raj. That may be an infirmity in that certified copy, but

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Ext. 29 (at least in the parts which are material on the point under consideration) appears to be a complete copy. No explanation was sought to be given before the trial court and the High Court as to why the portion relied upon was not found in Ext. 29. It is admitted that the recital relied upon is in the handwriting of Mode Narain, and Mode Narain has not chosen to enter the witness box and to explain the circumstances in which that writing was made. It was urged by counsel for the appellants that the plaintiff should have pleaded in the plaint that the certified copy of the decree which incorporated the recital relied upon by the appellants was a fabrication, and since no such plea was raised, the appellants were prejudiced by trial of that question. It was the case of Bijendra Narain, the plaintiff, that he came to know after the plaint was filed that there had been interpolations in the original decree. This he claimed to have learnt when he obtained a certified copy on October 5, 1942, after the suit was filed. In any event, we are unable to agree with counsel for the appellants that there the plaintiff sets up a case that a document relied upon by the defendants in support of their case is a fabrication, it is necessary for him either by his original plaint or by amendment therein to formally plead that the document is a fabrication and that unless he does so he is not entitled to ask

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the court to try that plea. The trial court had to try the issue of severance of the joint family status by the decree in Suit No. 27 of 1923. Whether partition had taken place had to be determined on evidence produced at the trial. Whether evidence in support of a party’s case is reliable may be raised by the other party without incorporating the contention relating thereto in his pleading. If the rule suggested by counsel for the appellants were to be followed, trial of suits would be highly inconvenient, if not impossible, because at every stage where a party contends that the evidence relied upon by the other side is unreliable he would in the first instance be required to amend his pleading and to set up that case. The Code of Civil Procedure does not contemplate any such procedure and in practice it would, if insisted upon be extremely cumbersome and would lead to great delay and in some cases to serious injustice. ”

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The Apex Court, in the case of Santosh Hazari

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Vs. Purushottan Tiwari (Deceased) by L.Rs.⁸ at paragraph No.15, held as under:

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“15. A perusal of the judgment of the trial court shows that it has extensively dealt with the

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8 (2001) 3 SCC 179

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oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court,

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decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is — and it is nothing more than a rule of practice — that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses,

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then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC 120] ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate

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court even on questions of law unless such question of law be a substantial one.”

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The Apex Court in the case of G .Amalorpavam

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and others Vs. R.C. Diocese of Madurai and others⁹ had an occasion to consider that when the points of determination have not been specifically indicated in the appellate judgment, would it become vulnerable, the Apex Court held that the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate Court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other consideration appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate Court, it would be a valid judgment even though it does not contain the points for determination.

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9 (2006) 3 SCC 224

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The First Appellate Court has independently considered the evidence and discussed in detail and given reasons for affirming the order of the Trial Court. The finding of fact recorded by the First Appellate Court comes in close quarters with the reasoning assigned by the Trial Court and being satisfied, the First Appellate Court has discharged the duties expected by it. This Court is of the considered view that, in the background of legal principles stated above, the First Appellate Court has discharged its duties being the last fact finding Court and the appellant has failed to establish that the judgment of the First Appellate Court is not in accordance with Order XLI Rule 31 CPC, accordingly, the additional substantial question of law is answered against the appellant.

¶166

The substantial questions of law framed by this Court on 07.12.2016 are taken up together to avoid repetition.

¶167

The main ground raised by the appellant is that, the Courts below have committed serious legal error in

¶168

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comparing the signatures of Krishnadas on the disputed agreement of sale at Ex.D.8 with that of other documents, i.e., Exs.P.1 and P.2 and holding that the signatures do not tally with each other without the help of the experts.

¶170

Under Section 73 of the Evidence Act, the Court is entitled to make comparison of the disputed signature with the admitted signature, as the Court is the expert of experts, however, a caution has been given that, such a comparison by the Court should not take up the responsibility of comparing of disputed signature or handwriting with the admitted signature or handwriting unless a report is solicited from the expert since such an examination requires a scientific exercise as held by the Apex Court, way back in the year 1979 in the case of State (Delhi Administration) Vs. Pali Ram,¹⁰ has held in paragraph No.30 that ordinarily, it is not prudent for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking,

¶171

10 1979 SCC (2) 158

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such issues are for the Court or jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings and the Apex Court has cautioned that the Court should not take up the responsibility of comparing the disputed signature or handwriting with the admitted signatures or handwriting unless a report is solicited from the expert since such an examination requires a scientific exercise.

¶174

This Court has absolutely no quarrel about the settled proposition of law, however, the Court can indeed compare the disputed signature with admitted signature to determine the authenticity, and when the reasoning of the Courts is not only based on the signature being in variance with the admitted signature, but also many other relevant and supportive evidence to arrive at such conclusion. The Apex Court, in the case of Lalit Popli Vs. Canara Bank

¶175

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and others¹¹ , has held that, under Section 73 of the Evidence Act, the Court by its own comparison of writings can form its opinion.

¶177

In the instant case, the Trial Court’s decision to dismiss the suit of Radha in O.S.No.507/1997 is not only based on the signature being in variance with the admitted signature of Krishnadas, but also the relevant fact that in the year 1972, the father-in-law of the plaintiff-Radha was inducted as a tenant, the landlord-Krishnadas instituted proceedings for evicting by filing HRC petition before the competent Court, Krishnadas filed eviction petition against the tenant, who had by then expired and his LRs. were brought on record and one of the LRs. was the husband of the plaintiff-Radha, in execution proceedings, delivery of possession was taken and in the order sheet, it was recorded on 22.07.1995 that the possession has been delivered to Krishnadas, the alleged agreement is dated 14.05.1995, if an agreement as stated by the plaintiff-

¶178

11 (2003) 3 SCC 583

¶179

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Radha is said to have been executed on 14.05.1995, there was no impediment to the judgment debtor / LRs of judgment debtor to state that they have continued the possession of the schedule premises pursuant to the agreement of sale dated 14.05.1995 executed in favour of Radha by the decree holder, when admittedly, the execution petition was closed on 22.07.1995, which is after the alleged agreement of sale dated 14.05.1995, there is not even a whisper in the execution proceedings about the alleged agreement of sale said to have been executed by Krishnadas, the Courts below considering all these aspects disbelieved the contention of the plaintiff as to the proof of alleged agreement of sale.

¶181

The reliance on the decisions placed by the appellant are not applicable to the present facts as noticed by this Court, the Trial Court has not only dismissed the suit for specific performance on comparison of disputed signature with the admitted signature and observing that the signature on Ex.D.8 is not the signature of Krishnadas,

¶182

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but also the other supporting evidence to arrive at a conclusion that the plaintiff has failed to prove the agreement of sale dated 14.05.1995 by Krishnadas. The Courts below have arrived at a conclusion not only based on the observation of the disputed signature with that of admitted signature, but the other supporting evidence which also point towards the conclusion arrived by the Courts below. The substantial questions of law framed by this Court on 07.12.2016 are answered accordingly, holding that the Courts below have not committed any legal error in comparing the signature of Krishnadas on disputed agreement of sale – Ex.D.8 with that of other documents at Exs.P.1 and P.2 even without the help of expert’s evidence, as the conclusion arrived by the Courts below is not solely based on such comparison, but the other relevant and corroborative evidence which this Court is of the considered view is sustainable.

¶184

It is relevant to state here is that, the original

¶185

tenant is in possession of the property from 1972, the

¶186

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landlord-Krishnadas filed eviction petition in EP No.14/1995, in the said execution proceedings, Krishnadas took delivery of the schedule premises through Court Ameen from the LRs of K. Puttaswamy by due process of law, which is evident from delivery receipt dated 06.07.1995 and the order in the executing Court on 22.07.1995. The landlord fought out litigation from 1972 to 1995 for more than 2½ decades for taking possession of the suit schedule property after taking possession of the suit schedule property by Krishnadas through Court Ameen, Krishnadas had locked the premises, the plaintiff-Radha trespassed and occupied the premises, for which police complaint was lodged against the plaintiffRadha for her unlawful act, plaintiff-Radha is the daughterin-law of K. Puttaswamy, P. Narayan - husband of plaintiff is none other than the judgment debtor in EP No.14/1995. The tenant having lost his possession on 22.07.1995, has started second innings through his daughter-in-law claiming that she is in possession of the suit schedule property as an agreement holder, the matter is pending in the second round from 1997, the landlord or the purchaser from Krishnadas

¶188

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are unable to get the fruits of the decree from the hands of tenant and it is high time that the Courts should heavily come upon such type of litigation, where the tenants in one way or the other, try to protract the proceedings either by filing a third party application or by filing such suit that there is an execution of agreement of sale. This is the perfect case where the tenant through his daughter-in-law - plaintiff in O.S.No.507/1997 has abused the process of law making this Court to impose cost and this Court pass the following:

¶190

ORDER

¶191

i. Regular second appeals are hereby dismissed with cost of Rs.50,000/- .

¶192

ii. Judgment and decree of the Courts below stands confirmed .

¶193

iii. Cost of Rs.50,000/- to be paid by the appellant to the Karnataka State Legal Services Authority, Bangalore, within a period of four weeks from the date of release of this order.

¶194

Sd/(K.S. HEMALEKHA) JUDGE

¶195

AMA,MBM

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List No.: 1 Sl No.: 27

Smt Radha v. Deepak

Case brief

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Smt Radha v. Deepak

Case brief

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What did the court decide?

What the court decided

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