JUDGMENT
Umeshwar Pandey, J.
1. Heard Sri Ashish Mishra, learned Counsel for the appellant and Sri P.K. Jain, learned Counsel appearing for the respondent.
2. Plaintiffs suit for cancellation of sale deed was dismissed by the trial court. On appeal before the lower appellate court the decree of the trial court has been reversed and the suit has been decreed.
3. Against the judgment and decree dated 19.12.2006, this second appeal has been preferred. The suit is for cancellation of the sale deed on the ground that the same was not executed by the plaintiff. Since the original sale deed could not be filed by the parties, the relevant register No. 8 from Sub-Registrar’s office was summoned by the trial court from which the photograph of the disputed thumb impressions were taken for expert’s opinion. Its comparison was done from the admitted thumb impression of the plaintiff and the expert’s opinion on both sides stated that the thumb impression on the register No. 8 were slightly tampered with but they did give their reports in favour of the party from which side they were produced in the Court. The trial court also examined the disputed thumb impressions as well as its alleged tampering and obliteration. Those impressions were not found so much clear as to make it possible for the Court to record its finding in one way or the other. Thus, after discussing the available materials on record, the trial court found that the plaintiff had not succeeded in proving the fact that the sale deed In dispute was not executed by him and the Court below held that the sale deed was genuine and the suit was dismissed.
4. On appeal, the court below found that the thumb impressions of which photos were taken and the expert’s opinion were obtained should further be examined with the help of its enlargements by digital photography for arriving at a correct decision in the matter and as such, the prayer made in this context by the plaintiff was allowed and the photographer was called to take the digital photos and produce the enlarged photos of the thumb impressions in the Court. This process was completed in the appellate court and on due examination by the Court, it was found that the disputed thumb impressions and the admitted thumb impressions were actually of different types. The admitted thumb impressions were of whorl type and that the disputed thumb impressions were found to be of loop type. Thus, after making discussions from all angles of the available materials including the enlarged photographs, the lower appellate court found that the disputed transaction of sale was definitely a result of forgery and the sale deed as such was not executed by the plaintiff. Accordingly, the lower appellate court has set aside the judgment and decree of the trial court and decreed the suit.
5. It is argued on behalf of the appellant that the act of obtaining the digital photographs of the disputed and admitted thumb impressions in the lower appellate court is nothing but admission of additional evidence under Order XLI, Rule 27, C.P.C. and in that direction certain formalities are required to be observed by the Court while admitting such additional evidence. In the present case, the lower appellate court did not go into all those legal aspects of the matter and has ignored its obligations for adhering to the required procedure. It is further submitted that the lower appellate court while reversing the findings recorded by the trial court has simply based its findings on the enlargement of the digital photographs and it did not require the expert’s opinion on the basis of those photographs.
6. As regards the aforesaid submissions, there is hardly any substance in it. So far as the formalities of obtaining additional evidence under Order XLI, Rule 27, C.P.C. is concerned, it is true that whatever the material by way of digital photographs were obtained at the appellate stage, they were acquired only under the provisions of Order XLI, Rule 27, C.P.C. As the judgment of lower appellate court itself demonstrates there was an agreement in this regard from either side of the parties. If there was any grievance from the side of the appellant-defendant in this context, the order so passed by the lower appellate court should have been challenged before the High Court but nothing has been done in that regard. Thus, it further makes evident that the parties did agree for obtaining that evidence and no procedural defect in the same could be found.
7. As regards the discussions made by the lower appellate court for placing its reliance upon the photographs and recording the findings, the Court is said to be an expert of experts. This view has been upheld by the Apex Court in its different cases. The Court has every right to act as an expert and to find out as to what is the correct state of affairs in respect of disputed and admitted thumb impressions or the handwriting. Therefore, in the present case the Court below has rightly placed its reliance and based its finding upon the digital enlargements of the photographs of the disputed and admitted thumb impressions and no fault could be found in the same. A perusal of the judgment of the lower appellate court shows that the finding was recorded by it not only on the basis of enlargements of the photographs but has also considered the whole evidence as such. The court below cannot be accused of accepting the photos by way of eliminating the other evidence of parties. Simply because the lower appellate court has not discussed the possessory evidence of the property given by the plaintiff, the judgment cannot be said to be wholly erroneous or defective as to occasion an interference by this Court in second appeal.
8. In the aforesaid view of the matter, I do not find any merit in the present appeal, which fails and is hereby dismissed at the admission stage.