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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. Civil Second Appeal No.130/1982.
(Rayees Mohammed & Others Vs. LRs of Val Chand)
DATE OF JUDGMENT : July 14th, 2009.
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Reportable
Mr. Harish Purohit for the appellants.
Mr. Arvind Shrimali for the respondent(s).
BY THE COURT :
Instant second appeal was filed by defendant
appellant late Musaji s/o Abrahim against late Val
Chand, respondent-plaintiff. Both defendant Musa and
plaintiff Val Chand died during the pendency of this
second appeal, therefore, legal representatives of both
the parties were taken on record.
The appellant preferred this second appeal under
Section 100, C.P.C. against the judgment and decree
dated 21.08.1982 passed by the District Judge,
Dungarpur in Civil Appeal No.18/80, whereby, the
learned first appellate Court reversed the judgment and
decree dated 16.04.1980 passed by the Civil Judge,
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Dungarpur in Civil Original Suit No.180/72 (12/76),
whereby, the learned trial Court dismissed the suit for
eviction filed by plaintiff-respondent late Val Chand.
According to facts of the case, respondent-plaintiff
Val Chand initially filed suit for eviction and payment of
arrears of rent in the year 1972. The plaintiff’s case
was that he owned shop in village Navdera. The said
shop was belonging to his uncle Prem Chand. The shop
was rented out to Abrahim, father of defendant Musa on
monthly rent of 4 Annas under document dated
10.09.1937. After the death of Abrahim, the premises
was rented out to Musa on a monthly rent of Re.1/-.
As per the averments made in the plaint,
defendants paid amount of rent as Rs.15/-, Rs.45 and
Rs.12/-, in all, Rs.72/- in samwat years 2020, 2023 and
2024. Thereafter, no rent was paid, therefore, the
plaintiff who was in need of his premises for reasonable
and bona fide necessity terminated the tenancy on
12.09.1972 and filed suit for eviction before the civil
Court and prayer was made for decree of eviction of the
premises described in para 1 of the plaint.
The suit was filed on the ground of bona fide
necessity and default in payment of rent. The
defendant filed written-statement and controverted the
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allegations made in the plaint and it is pleaded that
premises in dispute is his own shop being ancestral
property and he has been using the same without any
obstruction. The defendant denied the allegation that
premises was taken on rent by his father Abrahim by
way of executing document on 10.09.1937. The
defendant also denied the allegation with regard to
renting out the premises in the year 1961 to him, so
also, refused to accept the allegation that he has
deposited rent in samwat years 2020, 2023 and 2024.
In the additional plea, the defendant raised plea that he
has made construction by spending amount of
Rs.2674/- and, against that, the plaintiff never took
objection of any kind which is positive evidence to show
that the premises did not belong to the plaintiff. The
defendant submitted that false suit has been filed
because between their houses fall of a nalda exists.
Further, it is specifically pleaded that a false kirayanama
has been prepared upon which his false signatures have
been put. It is also pleaded that all these things have
been done with a view to put pressure upon the
defnedant so as to close the rainy nalda or divert its
direction.
Learned trial Court after filing of the written-
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statement proceeded to frame eight issues and, during
the course of trial, Ex.-2 which is said to be kirayanama
was sent to the hand-writing expert who gave opinion
that signature upon the kirayanama are forged and, on
that basis, finding was recorded by the trial Court that
suit has been filed on the basis of document which does
not bear signature of the defendant and vide judgment
dated 16.04.1980 the suit filed by original plaintiff
Valchand was dismissed by the Civil Judge, Dungarpur,
against which, appeal was preferred and learned
appellate Court while allowing the appeal set aside the
judgment and decree passed by the trial Court vide
judgment dated 21.08.1982 and decreed the suit for
eviction and arrears of rent which is under challenge in
this second appeal.
In this appeal, at the time of admission, after
hearing both parties, co-ordinate Bench of this Court
formulated following two questions for consideration :
“(1) Whether the first appellate Court was justified in
setting aside the finding of the trial Court in
respect of document Ex. 2 alteration from Veer
Chand to Bal Chand ?
(2) Whether the first appellate Court was justified in
placing reliance upon document Ex. 2 in face of
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the evidence on record ?”
Upon perusal of the trial Court’s judgment, it is
obvious that there is finding with regard to issue No.1
that Ex.-2, alleged rent-note, is forged. The said finding
is based upon the report of the hand-writing expert
Ex.-A/9. The said hand-writing expert report was
called by the trial Court upon application filed by the
appellant-defendant before the Court on 16.04.1977.
The defendant gave his specimen signature for sending
the same to the hand-writing expert; meaning thereby,
finding on issue No.1 arrived at by the trial Court is
based upon the evidence and report of the hand-writing
expert. After dismissal of the suit, the plaintiff
preferred appeal before the District Judge. Learned
District Judge while discrediting the report of the hand-
writing expert, Ex.-A/9 reversed the finding of the trial
Court and allowed the appeal and decreed the plaintiff’s
suit. In the present second appeal, defendant-
appellants are challenging the finding of the first
appellate Court on issue No.1 on the following grounds.
Learned counsel for the appellants vehemently
argued that the judgment and decree passed by the
first appellate Court is erroneous because, on the one
hand, document Ex.-2 was sent for identity of signature
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by the Court with the consent of both the parties and, in
pursuance of that, the hand-writing expert gave the
finding that signature upon Ex.-2 is forged, then, the
expert opinion was rightly accepted by the trial Court.
But, the learned lower appellate Court reversed the
finding which is not based upon cogent ground. More
so, the reasons for discrediting the testimony of the
hand-writing expert C.S. Sarvate, D.W.-6 is perverse
and contrary to the basic principle of law. The
judgment which is taken into account for the purpose of
adjudicating the validity of the report of the hand-
writing expert were not even applicable in the present
case.
Learned counsel for the appellants further argued
that document Ex.-2 was sent by the Court for
examination by the hand-writing expert because the
said document was the sole basis for establishing the
tenancy by the plaintiff Val Chand and the learned trial
Court dismissed the suit rightly on the basis of the fact
that D.W.-6 C.S. Sarvate found that the signature is
forged. According to learned counsel for the appellant,
the finding arrived at by the learned appellate Court
reversing the finding of the trial Court is totally illegal
and contrary to the evidence on record and basic
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principle of law, therefore, the question formulated by
this Court with regard to document Ex.-2 is required to
be answered in favour of the appellants and judgment
rendered by the first appellate Court deserves to be set
aside and judgment of the trial Court may be restored.
On the contrary, learned counsel appearing on
behalf of the respondent submits that the learned first
appellate Court has rightly reversed the finding of the
trial Court while discrediting the testimony and
evidential value of the document Ex.-2 which is report
of the hand-writing expert. The finding is based upon
so many pronouncements of law. The reasons for
discrediting or not accepting the hand-writing expert’s
opinion is based upon cogent reasons and as such
substantial question of law which was formulated at the
time of admission of this appeal with regard to
evidential value of document EX.-2 deserves to be
answered in favour of the respondent-plaintiff because
the first appellate Court has not committed any error for
which decree has rightly been passed for eviction from
the disputed shop by the appellate Court.
I have considered the rival submissions and
perused the record; more specifically, for adjudicating
upon the substantial question of law mentioned above,
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statement of the hand-writing expert C.S. Sarvate,
D.W.-6.
It is very strange that in the cross-examination,
no such question was put to the witness by the plaintiff-
respondent which shows that signatures were genuine.
Only those questions were put which created confusion
upon the mind of the witness. In my opinion, on the
basis of the said cross-examination, it cannot be said
that the opinion given by the hand-writing expert
cannot be accepted because in the examination-in-chief
the hand-writing expert categorically stated that he is
having vast experience and is competent to ascertain
the identity of the signature. In my considered
opinion, the expert’s evidence cannot be discarded in
casual manner.
Further, with open eyes, the Court sent document
Ex.-2 for ascertaining the correctness of the identity of
signature on the document, then, the trial Court rightly
accepted the report of the hand-writing expert, in
which, the expert gave the opinion that the identity of
the signature is forged. The learned trial Court has
rightly accepted the report of the hand-writing expert
since nothing came out in the cross-examination of the
hand-writing expert, D.W.-6 C.S. Sarvate before the
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Court to discredit his testimony and lay aside the
opinion of the hand-writing expert. Learned lower
appellate Court strangely discredited his testimony and
refused to accept the report of the hand-writing expert
on completely wrong premises because the lower
appellate Court itself proceeded to assess the
correctness of the receipt Ex.-2. In this view of the
matter, the finding arrived at by the first appellate
Court while rejecting the expert’s report called by the
trial Court is perverse and illegal and has no basis of
law.
More so, in the discussion of issue No.1 with
regard to document Ex.-2, the learned lower appellate
Court has assessed the report of the hand-writing
expert while discussing his statement also. In my
considered opinion, such type of consideration upon the
hand-writing expert’s report is not required because the
plaintiff-respondent himself did not raise any objection
or put any question in the cross-examination with
regard to any irregularity committed by the hand-
writing expert. In the statement of D.W.-6 C.S.
Sarvate, hand-writing expert, certain suggestive
questions were put in his cross-examination; but, it was
nowhere questioned that his report is based upon any
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technical lapse.
In my opinion, therefore, the question
formulated by this Court with regard to sanctity of
document Ex.-2 deserves to be answered while
allowing this second appeal and, as a result of the
foregoing discussion, it is found that the learned first
appellate Court has wrongly arrived at the finding
while not accepting the report of the hand-writing
expert because the finding of the learned lower
appellate Court is totally perverse and imaginary in
view of the fact that no specific question was put to
the hand-writing expert C.S. Sarvate, D.W.-6 in his
cross-examination to discredit or dispute his evidence
in the trial. The testimony of the expert cannot be
discarded by the Court of law while discussing its
evidential value in perversive manner ignoring the fact
that the trial Court itself called report of the hand-
writing expert.
In this view of the matter, the questions
formulated by this Court are hereby answered in
affirmative. This appeal is allowed. Impugned
judgment and decree dated 21.08.1982 passed by the
District Judge, Dungarpur in Civil Appeal No.18/80 is set
aside. Judgment and decree dated 16.04.1980 passed
by the trial Court is restored.
There shall, however, be no order as to costs.
(Gopal Krishan Vyas) J.
Ojha, a.