[CASE NUMBER] 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JULY, 2017 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL RFA NO.1338/2009 (DEC) BETWEEN: [ENTITY], S/o Late P.M.Vijayadev, Aged about 67 years, R/o No.13, 7th Cross, Vijetha Nilaya, 7th Cross, Nanjappa Reddy Layout, Ramamurthy Nagar, Bangalore-560 016. Appellant (By Sri [ENTITY], Adv.,) AND: 1. Sri [ENTITY], S/o late Changaiah Shetty, Aged about [SECTION]8 years, R/at No.51[SECTION], 7th Main Road, Hanumanthanagar, Bangalore-560 019. 2. Smt.[ENTITY] dismissed vide c/o dt:1[SECTION].12.2010 3. [ENTITY], , dismissed vide c/o dt:1[SECTION].12.2010 [SECTION]. [ENTITY], S/o late [ENTITY], Aged: Major, R/at No.98,99 and 100 formed in Survey No.16,17/2 and 18/1 of Vijanapura (V), Ramamurthynagar Main Road, Now known as Gayathrinagar, [CASE NUMBER] [ENTITY], Bangalore South Taluk. Respondents. (By Sri [ENTITY], Adv., for C/R1 (CP.No.9[SECTION]7/09) vide order dt:1[SECTION].12.2010 appeal dismissed as against R2 & R3. Sri.[ENTITY], Sri.[ENTITY]'s for R[SECTION]) This RFA is filed under [SECTION] of [ACT], against the Judgment and Decree dt:31.10.2009 passed in [CASE NUMBER] by the XIV Addl. City Civil Judge, Bangalore, (CCH.No.28), decreeing the suit for declaration, mandatory injunction, possession and mesne profits. This appeal having been heard and reserved, coming on for Pronouncement this day, the Court delivered the following: JUDGMENT
This appeal out of the judgment passed by XIV Additional City Civil Judge, Bangalore in [CASE NUMBER]. The appellant is defendant No.[SECTION], respondent No.1 is the plaintiff and respondent No.2 to [SECTION] are defendants No.1 to 3 respectively before the trial court. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial court.
2. The subject matter of the suit is site No.98, 99 and 100 formed out of Sy.Nos.16, 17/2, 18/1 of Vijanapura village of Bangalore South Taluk measuring East to West [SECTION]0 feet and North to South 110 feet.
[CASE NUMBER]
3. The plaintiff filed [CASE NUMBER] against the defendants for declaration of his title to the suit property, that agreement of sale dated 03.02.1988 is void and unenforceable and for cancellation of sale deed dated 02.01.1989 executed by defendant No.1 in favour of defendant No.3 and for mandatory injunction for removal of super structure put up on the suit property, for possession and for mesne profits.
[SECTION]. The case of the plaintiff in brief as follows; That he purchased the suit property from Sri [ENTITY] on 11.09.1987 and was in possession and enjoyment of the same since then. Defendant No.1 is his sister-in-law and defendant No.2 is her husband. On the request of defendant No.1 and 2 he agreed to sell the suit property to defendant No.1 for Rs.70,000/-. He executed the agreement of sale on 03.02.1988 receiving advance money of Rs.1,000/-. As per the agreement of sale, defendant No.1 had to pay the balance sale [CASE NUMBER] consideration and get the sale deed executed within three months. Defendant No.2 took the signatures on typed papers stating that they are agreement of sale. When the plaintiff requested him to read out the contents, defendant No.2 told that the papers contain agreed terms of the agreement of sale only. Believing them he subscribed his signature on them. At that time one Sri [ENTITY] was also present. Defendants No.1 and 2 did not perform their part of contract for quite long time and when enquired, defendant No.1 agreed to cancel the agreement of sale. Therefore, the plaintiff sent D.D. dated 30.0[SECTION].1989 towards refund of the earnest money along with the letter of termination of the agreement. On 01.05.1989 when he visited the suit property with an intention to put up construction on the same, defendant No.3 who is a total stranger was found on the site and he obstructed the plaintiff. Therefore, he filed [CASE NUMBER] and a criminal case against the defendants. Since no exparte injunction was granted in [CASE NUMBER], the defendants trespassed into the suit [CASE NUMBER] property and put up construction. In [CASE NUMBER] the defendants filed written statement claiming that the plaintiff has received Rs.69,000/- and executed power of attorney and put defendant No.1 in possession. All such documents are forged and fabricated one. He has not parted with the ownership of the property. The police have charge sheeted defendant Nos.1 and 2 on his complaint. Therefore, he seeks the declaration of title, possession etc.
5. Defendant Nos. 1 to [SECTION] filed their written statements. The trial court records show that the written statement of defendant No.3 has been rejected. The gist of the written statement of defendant Nos.1, 2 and [SECTION] is as follows:
The execution of agreement of sale dated 03.02.1988 in favour of defendant No.1 by the plaintiff is admitted. It is denied that defendant No.2 took signatures of the plaintiff on some typed papers stating that they contain only the terms as agreed between them. They further deny that they have failed to perform their part of contract. The [CASE NUMBER] plaintiff received the balance consideration of Rs.69,000/-
and on 2[SECTION].03.1988 acknowledged/endorsed the same on agreement of sale dated 03.02.1988. Further, instead of executing sale deed he executed GPA and an affidavit in favour of defendant No.1 confirming possession of defendant No.1. By virtue of said power of attorney, defendant No.1 has sold the property to defendant No.3 on 02.01.1989 and put him in possession. Defendant No.3 has put up construction on [SECTION] squares in the suit property.
Pending the suit, defendant No.3 sold the property to defendant No.[SECTION] on 10.06.1992 and defendant No.[SECTION] is in possession of the suit property. The termination letter and demand draft are the after thought of the plaintiff and defendants have not encashed the demand draft. Therefore, there is no revocation of agreement. The suit is barred by time.
6. On the basis of the above pleadings the trial court framed the following issues.
[CASE NUMBER]
1. Whether the plaintiff proves that he is the owner of the suit property as contended?
2. Whether the plaintiff proves that the defendant failed to discharge the obligations as per agreement dated 03.02.1988 and also failed to pay the balance amount as contended?
3. Whether the plaintiff proves that the document is void and unenforceable for the reasons stated in the plaint?
[SECTION]. Whether the defendants prove that the plaintiff has executed a valid agreement with respect to suit property and has received the full consideration amount and put 1st defendant in possession of suit property by executing necessary documents as contended?
5. Whether the plaintiff proves cause of action for the suit?
6. Whether the plaintiff is entitled for the relief of declaration and possession of the property?
7. Whether the suit is properly valued and proper court fee is paid on the plaint?
8. What order or decree?
7. Parties adduced evidence. On the plaintiff's side, P.W.1 to P.W.3 are examined and Ex.P.1 to Ex.P.25 are marked and on defendants' side, D.W.1 to D.W.3 are [CASE NUMBER] examined and Ex.D.1 to Ex.D.22 are marked. The trial Court after hearing the parties, decreed the suit dis- believing Exs.P.9 to [SECTION]
8. The trial court disbelieved Ex.P.9 (C) - the endorsement/acknowledgment of receipt of Rs.69,000/-, Ex.[SECTION]- GPA and Ex.[SECTION] - the affidavit, on the following grounds.
(i) Attestors, Scribe, Notary and advocate who identified the executant of Ex.[SECTION] are not examined before the court;
(ii) Ex.[SECTION] does not bear the date and month of its execution and the said space left blank;
(iii) No reasons much less special reasons are made out to explain why plaintiff executes GPA in favour of defendant No.1, who is neither a property nor finance manager and only a home maker;
(iv) The GPA and the affidavit-Ex.[SECTION] are said to be executed on the same day and consideration of Rs.69,000/- is also said to be paid on the same day, but in Ex.[SECTION]-affidavit there is no mention about GPA-Ex.[SECTION];
(v) In Ex.[SECTION] - the affidavit, the date of swearing is altered;
(vi) The evidence of the hand writing expert coupled with Ex.P.12 and Ex.P.19, his report and [CASE NUMBER] reasonings, show that disputed signatures vary from the admitted signatures. The same is acceptable;
vii) DW-1 did not tender herself for further examination on Ex.P.9 to Ex.[SECTION];
viii) The evidence of DW-2/defendant No.3 carries no value as his written statement is rejected;
ix) The plaintiff's denial of his signature on vakalath and plaint does not prejudice his case;
x) On comparison of the admitted and disputed signatures, the signatures on Ex.[SECTION] is found traced and signature on Ex.[SECTION] are forced writing. Therefore, those disputed signatures vary from the admitted signatures;
xi) The time prescribed to file the suit is 3 years from the date of the plaintiff's knowledge of the forgery. The last date to file the suit fell on the vacation day and the suit is filed on the re-
opening day. Therefore, the suit is filed in time;
9. Sri [ENTITY], learned counsel for defendant No.[SECTION]/appellant seeks to assail the impugned judgment on the following grounds.
a) The litigation is stage managed by PW1 the plaintiff's power of attorney holder. He had deliberately kept the plaintiff off stage. Plaintiff entered the witness box only on demonstrating that he is evading to enter the witness box. The evidence of PW-2 shows that the suit is filed on the instructions of PW-1 [ENTITY];
[CASE NUMBER]
b) PW-1 states that he is not aware of plaintiff receiving the balance consideration;
c) PW1 and 2 contended that the documents Ex.[SECTION] and Ex.[SECTION] and acknowledgment for receipt of Rs.69,000/-on Ex.P.9 are forged one. On the complaint of the plaintiff with the same allegations, defendant Nos.1 and 2 are prosecuted and acquitted in the criminal case. Therefore the case of fraud and forgery fails;
d) As per the plaint itself, the time stipulated for execution of agreement was 3 months from 03.02.1988. If the plaintiff was eager to terminate the contract for the alleged breach of the condition, he could have done that promptly. But the demand draft is sent on 30.0[SECTION].1989 i.e., after lapse of more than 10 months. That shows only on learning about the sale in favour of defendant No.3, plaintiff has sent the DD only to create a ground to file the suit;
e) The suit is filed about more than 3 years of the alleged termination of the contract which creates doubt about termination. If really there was no payment of sale consideration, the plaintiff would not have waited for such a long time;
f) The conduct of the plaintiff (PW-2) denying his signature on his own plaint and vakalath shows that he is capable of stooping to any level to achieve his purpose. The trial court failed to appreciate such conduct;
g) PW-1 in his cross-examination, admitted that in Karnataka Registration of Sale of Revenue Sites was banned and therefore, the [CASE NUMBER] parties used to go to Madras and get the sale deeds registered there. That shows that to over come the difficulty, the plaintiff has executed the power of attorney and affidavit in favour of defendant No.1;
h) The statement of plaintiff in Ex.P.7 shows that the plaintiff has sold the property to Sri [ENTITY] in October 1988. In that event, the plaintiff has no locus standi to file the suit;
i) The trial Court's observation that defendants have not produced the proof of sale of property in favour of [ENTITY] is contrary to Ex.P.7-plaintiff's complaint to the police;
j) The witnesses to GPA i.e., notary and advocate who identified the executant of Exs.[SECTION] and 11 turned hostile in the criminal case. Therefore, defendants could not venture to examine them. The trial court failed to note that aspect;
k) The rejection of Ex.P10- General Power of Attorney by the trial Court on the ground that scribe, witnesses, notary and advocate are not examined is contrary to [SECTION] of the [ACT];
l) Having regard to the presumption under [SECTION] of the [ACT], the trial Court ought to have thrown burden on the plaintiff to prove the General Power of Attorney is forged one;
m) The trial Court disbelieved Exs.[SECTION] and [SECTION] and the payment of the amount based on the evidence of PW.3 the handwriting expert, his report Ex.P.12 and reasonings to report Ex.P.19. The said Commissioner's report is [CASE NUMBER] imported from the criminal case and importing of the report from one case to another case is impermissible;
n) The agreement of sale is executed on 03.02.1988. Time fixed for completion of the contract was up to 02.05.1988. Plaintiff issues Ex.P.3 the termination notice on 3.[SECTION].1989. By that time defendant No.1 had sold the property to defendant No.3 on 02.01.1989. That circumstance shows that the General Power of Attorney Ex.[SECTION] was in continuation of the agreement of sale Ex.P9;
o) On examination of the plaintiff as PW2, the evidence of PW1, Power of Attorney holder loses any significance. On exclusion of the Commissioner's report the only evidence that remains is of PW2 which is totally shaky;
p) Admittedly the defendants were prosecuted on the same allegation of forgery and fraud in execution of Ex. P10 GPA, affidavit and endorsement on the agreement of sale regarding the receipt of Rs.69,000/- and they are acquitted. Having regard to all these facts the probability of receipt of balance consideration of Rs.69,000/- and execution of General power of attorney and affidavit Ex.[SECTION] and [SECTION] tilts in favour of the defendants. The trial Court committed error in appreciating all these things and decreed the suit.
10. In support of his arguments he relies upon the following judgments:
[CASE NUMBER]
1. [ENTITY] & Ors. Vs. [ENTITY], Since dead by LRs & Ors; AIR 196[SECTION] SC 529
2. Bhagwan Kaur -vs- Maharaj Krishan Sharma & Ors; AIR 1973 SC 13[SECTION]6
3. [ENTITY] Balramayya-vs- Yelamanchali Gopal rao: ILR 1997 Kar 1993
[SECTION]. The [PRECEDENT]
5. [ENTITY] -vs- Jaswant Singh & Ors; AIR 1971 SC 761
6. Bank of India -vs- M/s Allibhoy Mohammed & Ors; AIR 2008 Bombay 81
7. [ENTITY] & Ors. -vs- Member-
Secretary, Chennai Metropolitan Development Authority & Ors; [PRECEDENT]
8. K.A. Pradeep -vs- Branch Manager, Nedungadi Bank Ltd., Manjeri and Ors; AIR 2007 Kerala 69
9. [ENTITY] and Industries Private Limited - vs- State of Haryana and Another; (2012) 1 SCC
11. As against that Sri [ENTITY] learned counsel for respondent No.1 seeks to justify impugned judgment on the following grounds:
[CASE NUMBER] i. The burden of proving the payment of balance consideration of Rs.69,000/-, endorsement to that effect as per Ex.P9(c) and execution of the Exs.P10 GPA & P11, affidavit was on the defendants and they failed to examine the attesting witnesses, scribe, notary and the advocate who identified the executant of Ex.P10 and P11 before the notary. Therefore they failed to discharge their initial burden of proof;
ii. The defendants did not file any objection to the application to summon the Commissioner's report and failed to impeach evidence of PW3 the Commissioner.
Therefore, it is not open to them to contend that the Commissioner's report is imported one and cannot be relied;
iii. There are unexplained alterations, and interpolation in Exs. P9, P10 & P11 which are rightly noticed by the trial Court;
iv. Under [SECTION] of the [ACT], the Court has power to compare the signature and hand [CASE NUMBER] writing and that power is rightly exercised by the trial Court;
v. Defendant No.1 did not tender herself for further cross examination on Exs. P9 to P11;
vi. The claim of defendants 1 and 2 that the plaintiff has sold the property to [ENTITY] and therefore he has no locus-standi to file the suit and that he has sold the property to them is mutually inconsistent;
vii. DW1 does not identify the signatures of the plaintiff on Exs.P.9 to 11. [SECTION] does not confer presumption on the execution of the Power of Attorney;
viii. Defendant No.[SECTION] being the purchaser of pendenti-lite,.
in the absence of the appeal by defendants No.1 to 3 is not entitled to file the appeal to deny allegation of forgery made against them;
[CASE NUMBER] ix. The defendants get title to the property, only if they prove the payment of balance consideration to the plaintiff as endorsed in Ex.P.9(c) and Ex.[SECTION]-affidavit;
12. In support of his contentions, he relies upon the following Judgments:
(1) [PRECEDENT].
(2) [PRECEDENT]
13. Having regard to the rival contentions of the parties, the question that falls for consideration of this Court is:
"Whether the trial Court is justified in disbelieving Exs.P.9 to 11 and consequently, decreeing the suit?"
1[SECTION]. Defendant no.1, the wives of PW1& 2 are the sisters and defendant no.2 is the husband of defendant no.1. The whole case revolves basically around the documents - Exs.[SECTION], [SECTION] & [SECTION]. There is no dispute [CASE NUMBER] that plaintiff entered into the agreement with defendant no.1 to sell the suit property for Rs.70,000/- and receiving advance of Rs.1001/-, executed the agreement of sale - Ex.P.9 on 03.02.1988. According to the defendants Government had banned the sale of the revenue sites, therefore, within the stipulated time the plaintiff was not able to perform his part of contract in executing the sale deed. It is their further case that due to that on 2[SECTION].03.1988 he received the balance sale consideration and executed Ex.P.9(c) - the acknowledgement and on 26.03.1988 he executed Ex.[SECTION] - the general power of attorney and Ex.[SECTION] - the affidavit in favour of the first defendant to enable defendant No.1 to enjoy the property. Whereas the plaintiff denies the same.
15. The plaintiffs version in her pleading regarding Exs.[SECTION], 10 and 11 are two fold. Firstly, he says that defendant nos.1 and 2 took his signature on some documents representing that they contain the terms of the sale agreement as agreed between them. He means to say [CASE NUMBER] that defendant nos.1 and 2 have played fraud on him by converting those documents to be the endorsement, GPA and affidavit. Secondly he says that those documents are forged one. During the evidence an attempt is made to deny the signatures also and label them as forged one.
16. If execution of Ex.[SECTION] - the general power of attorney is held proved, the sale of the property to defendant no.3 sustains. Since Ex.[SECTION] is towed with Ex.P 9 (c) & Ex.[SECTION], if the Court holds that Ex.[SECTION] is proved, that substantiates the contention of the defendants that due to inability of plaintiff in transferring the property under a registered sale deed, he executed the other two documents to acknowledge the receipt of Rs.69,000/- and confirm possession.
17. In view of the above said discussion Court has to see who has the burden of proving Ex.[SECTION] and what is the degree of proof required for that. It is no doubt true that in the ordinary course [SECTION] & [SECTION] of the [ACT] require a party who relies on a document to [CASE NUMBER] prove the same. As per those Sections the initial burden of proof of a document is on the party relying on them. But the [ACT] carves out certain exceptions to that general rule, to confer the benefit of presumption with regard to existence of certain facts.
18. [SECTION] of the [ACT] provides for presumption with regard to powers of attorney. The said Section reads as follows:
"85. Presumption as to powers-of-
attorney.- The Court shall presume that every document purporting to be a power-of- attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative [ ] of the [Central Government], was so executed and authenticated." (Emphasis supplied).
The plain reading of the above section goes to show that the presumption is with regard to both execution and authentication of the power of attorney.
19. Further since the words "shall presume" are employed in [SECTION] it is mandatory for the Court to [CASE NUMBER] raise such presumption. [SECTION] of the [ACT] defines the words shall presume as follows:
"shall presume" - whenever it is directed by this act that Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."(Emphasis supplied in last two lines).
20. There is no dispute that Ex.[SECTION] bears the authentication of a notary by name [ENTITY]. At the instance of the plaintiff himself the charge sheet records in [CASE NUMBER] are summoned and marked in the case at Ex.P.7. The plaintiff tries to rely upon the statement of [ENTITY]. M-the notary to contend that she has given a statement before the I.O. to the effect that the executant of the power of attorney and the person brought by the police to her for identification are not one and the same. That goes to show that the plaintiff admits that notary admitted the authentication of the document. So far as the other part of the said statement that there was impersonation, that is statement made before the I.O. in a [CASE NUMBER] criminal case. That is not even marked by the Magistrate in that criminal case to use it as evidence. Even if that be so the same being that of a living person hit by [SECTION] of the [ACT] and not admissible.
21. Having regard to the aforesaid discussion the trial Court ought to have regarded Ex.[SECTION] proved unless and until the same is disproved. The burden of disproving the document was on the plaintiff. It was for the plaintiff to summon the attesting witnesses to Ex.[SECTION], the advocate who identified the executant of Ex.[SECTION] and the notary and examine them to disprove that document. The trial Court failed to notice the provisions of [SECTION] and [SECTION] of the [ACT] and misdirected itself in casting the burden of proof of execution of Ex.[SECTION] on the defendants.
22. In [ENTITY]'s case referred to supra the Supreme Court held that there is a presumption that notary must have satisfied himself in discharge of his official duties that the person executing it is the [CASE NUMBER] proper person and the fact that he does not say so in his endorsement is not material. Therefore in the absence of examination of the notary, it is not open to the plaintiff to contend that the notary has given a statement before the police that there was an impersonation. It is a farfetched idea that on such contention the Court should hold that that the execution and authentication of Ex.[SECTION] is disproved.
23. The Bombay High Court in Bank of India case referred to supra has held that the presumption regarding power of attorney available under [SECTION] is both with regard to execution and authentication of the document.
2[SECTION]. Sri [ENTITY], learned counsel relying on Judgment in [ENTITY]'s case contends that Ex.[SECTION] is compulsorily registrable document therefore the benefit of [SECTION] is not available to the defendants. In the said judgment at para 22 it is held as follows:
"22. Such being the scheme of [SECTION] of the said Act, there is nothing to indicate that the power of attorney document has to be compulsorily notarized [CASE NUMBER] or registered. If the power of attorney documents were to contain the clause enabling the agent to sell the principal's property, it is then that it becomes a compulsorily registerable document."
(Emphasis supplied)
25. In the said judgment no where it is held that if the power of attorney is not registered it loses the presumption available under [SECTION] of the [ACT]. So far as the registration aspect, the Supreme Court in [ENTITY] & Industries Pvt. Limited referred to supra, while holding that immovable property can be transferred/conveyed only by deed of conveyance (sale deed) duly stamped and registered as required under the relevant provisions of [ACT] and the [ACT], saved the conveyance made under the power of attorney/affidavits prior to the date of the said judgment (11.10.2011) subject to the parties getting registered the deeds of conveyance to complete their title.
26. It is useful to quote para 26 and 27 of the said judgment which are as follows:
[CASE NUMBER] "26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are not "transfers" or "sales and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/will transactions" may also be used to obtain specific performance or to defend possession under [SECTION] of the [ACT]. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/will transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf [CASE NUMBER] execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/will transactions" are not intended to apply to such bonafide/genuine transactions." (Emphasis supplied)
27. Exs.P.9 to 11 are executed before 11.10.2011. Further in pursuance of Ex.[SECTION] defendant No.1 has executed the sale deed as per Ex.P.8 on 02.01.1989, that is before 11.10.2011. Thereby all the three documents are eligible for the benefit of the saving clause provided in [ENTITY]'s case. In [ENTITY]'s case the judgment of the Supreme Court in [ENTITY]' case is not referred to. Therefore, the said judgment in no way advance the case of the plaintiff.
28. Sri [ENTITY], learned counsel for the plaintiff relying on State of Karnataka & Others case [CASE NUMBER] referred to supra contends that the presumption under [SECTION] of the [ACT] can be invoked only if the party seeking such presumption produces the power of attorney and gets that marked in the evidence. He contends that the defendants had not produced Ex.P.9 to [SECTION] therefore they are not entitled to the benefit of [SECTION] of the [ACT]. In the said judgment it is held that in a suit for declaration of title of the plaintiff he cannot succeed without producing & proving the original document of his title or its copy as required under [SECTION], [SECTION] and [SECTION] of the [ACT].
29. The plaintiff himself says that Ex.P.9 to [SECTION] (originals) were seized by the police in [CASE NUMBER]. Therefore, they were not in the custody of the defendants. DW.1 in her evidence assigns the same reason and produces the certified copies of the same at Exs.D.[SECTION] to D.6. Later, plaintiff himself summons those documents from the file of [CASE NUMBER] and gets them marked. Those documents became part of the records of the case.
[CASE NUMBER] Therefore there is no merit in such contention and the judgment in State of Karnataka & Others is not applicable.
30. Similarly since the plaintiff did not disprove Ex.[SECTION] by examining the notary, attesting witnesses and the advocate who identified the executant of Ex.[SECTION]. There is no merit in the contention that after summoning the Ex.P.9 to [SECTION], DW.1 did not enter the witness box therefore, the presumption under [SECTION] of the [ACT] does not enure to her benefit.
31. To decree the suit the trial Court relies on the evidence of PW.3 the hand writing expert and his reports Ex.P12 and P.19. Those two documents are imported from the file of [CASE NUMBER]. In the case on hand plaintiff did not file any application for appointment of the Commissioner and no Commission was issued seeking report of the hand writing expert. This Court in the Judgment of [ENTITY] Balramayya -vs- Yelamanchali Gopal rao: ILR 1997 Kar 1993 regarding [CASE NUMBER] the evidentiary value of the Commission report imported from some other case has held as follows:
"16. what [SECTION] says is that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. The suit referred to is the particular suit in which the Commissioner has been appointed, [SECTION] [ACT] does not say that the report & evidence in some other case shall be evidence in a suit in which he was not appointed as Commissioner."
Ultimately in that matter this Court held that the lower Appellate Court was not right in law in relying on such evidence.
32. Since no application for appointment of the Commissioner was filed in the case on hand the defendants had no opportunity to oppose the application the sample signatures of plaintiff were not taken by the Court. The trial Court has received the Commissioner's report in a deviated manner. Therefore, the acceptance of the [CASE NUMBER] Commissioner's report by the trial Court is contrary to the ratio laid down by this Court in [ENTITY]'s case supra.
33. Further, the Supreme Court in [ENTITY] and Others referred to supra regarding the evidentiary value of the hand writing experts has held as follows:
"Para 21 The evidence of the expert therefore in these circumstances is not conclusive and cannot prove the signature Besides it is necessary to observe that expert's evidence as to hand writing is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence "(Emphasis supplied)
3[SECTION]. Therefore this Court has to see whether there is any evidence to corroborate the evidence of PW.3 to hold that Ex.[SECTION] is disproved. On the complaint of the plaintiff that they have forged Ex.P.9 to [SECTION] and played fraud on [CASE NUMBER] her, defendants No.1 and 2 were prosecuted in [CASE NUMBER] and they are acquitted. In that case also the same expert's reports were relied upon. That judgment has attained finality.
35. As rightly pointed out by the counsel for the appellants, though plaintiff disputed her signatures and execution of Exs.[SECTION], 10 and 11, at first instance she did not enter the witness box to deny the same. The evidence of PWs 1 - the power of attorney holder of the plaintiff and PW2 - the plaintiff shows that when PW1 was examined PW2 was also present in the Court. PW2 in his cross examination states that PW1 gave instructions to draft the plaint and file the suit. The evidence of PWs 1 and 2 shows that all along PW2 worked in the shop of PW1 on monthly salary of Rs.2000/- and PW2 has control over PW1. PW2 in his cross examination admits that he is depending on PW1. Though PW1 contends that he is a witness to the transaction of agreement of sale, he is not a signatory to Ex.P.9.
[CASE NUMBER]
36. PW2(plaintiff) in his cross examination pleads ignorance about another suit filed by him in [CASE NUMBER] against defendants 1 and 2, Criminal case filed by him against defendants 1 and 2 and the result of those cases or information about those proceedings. PW.2 does not deny his signature on Ex.[SECTION]. As against that in his cross examination he says that the signatures on Ex.[SECTION] i.e., 10 (a,b and c) looks like his signatures, but he cannot say whether they are his signatures or not.
37. PW1 in his cross examination admits that he has learnt to write his initials in English and he signs document only after ascertaining the contents of the same. Having said so, he goes to the extent of denying his signatures on his own plaint, vakalath etc. That goes to show that plaintiff is capable of denying his own signatures whenever he is confronted with a situation. Despite observing that the trial court holds that such conduct does not prejudice plaintiff's case which is erroneous.
[CASE NUMBER]
38. The Court has to see other circumstances to find out the probability of plaintiff receiving the balance sale consideration and executing Ex.[SECTION], [SECTION] & [SECTION]. The time stipulated in Ex.P.9 the admitted document, to perform the contract was 3 months. The order of events are as follows:
Sl. Event Date 01 Plaintiff purchasing the property as 1[SECTION].0[SECTION].1987 per -Ex.P.2 02 Plaintiff executing agreement of sale - 03.02.1988 Ex.P.9 03 Endorsement/acknowledgment of 2[SECTION].03.1988 Rs.69,000/- Ex.[SECTION] 0[SECTION] G.P.A. in favour of defendant No.1- 26.03.1988 Ex.[SECTION] 05 Affidavit confirming receipt of 26.03.1988 consideration and delivery of possession -Ex.[SECTION] 06 Sale of the property by defendant No.1 02.01.1989 in favour of defendant No.3-Ex.P.8 07 Plaintiff's notice along with D.D.- 30.0[SECTION].1989 Ex.P.3 08 Plaintiff filing Police complaint 05.05.1989 09 Plaintiff filing O.S.No.2550/1989
39. It is the contention of the defendants that since the plaintiff had received the entire sale consideration and [CASE NUMBER] executed Ex.[SECTION], [SECTION] & [SECTION], he did not raise any objection till 30.0[SECTION].1989. Their further contention that only after the sale of the property to defendant No.3 and on defendant No.3 starting construction, at the instigation/behest of PW.1, the refund of the D.D., Police complaint & [CASE NUMBER] are all articulated.
[SECTION]0. The admission of PW.2 (plaintiff) that he is dependant on PW.1 and working in his shop for Rs.2,000/- per month coupled with the fact of he entering into agreement of sale of the property with the defendant No.1 within one year of purchasing the same indicates that he was not financially that affordable to ignore the postponement of payment of money against the terms of Ex.P.9.
[SECTION]1. Except the self serving testimony of P.W. 2 which is denied, absolutely there is no material to show that from 03.02.1988 till 30.0[SECTION].1989, at any time the plaintiff asserted that balance sale consideration is not [CASE NUMBER] paid as per Ex.P.9 and demanded the same. Even in Ex.P.3 he doesn't specifically state that he is terminating the contract. He admits that there was ban on sale and registration of revenue sites and his own sale deed Ex.P.2 is therefore registered in Madras.
[SECTION]2. Further PW.2 in his cross-examination admits that as on 30.0[SECTION].1989 defendant No.3 [ENTITY] was residing in the disputed house and he has built tiled house in the suit property. He states that after execution of the agreement of sale, he once visited that the suit schedule property but he did not enquire whether defendants No.1 & 2 have executed registered sale deed in respect of suit schedule property to defendant No.3. That itself shows that by 30.0[SECTION].1989 defendant No.3 had constructed a building in the suit site & was in occupation of the same. Despite that plaintiff files [CASE NUMBER] against defendants No.1 to 3 for bare injunction. Later in this suit he claims that since no exparte injunction was [CASE NUMBER] granted in [CASE NUMBER] the defendants have constructed the building.
[SECTION]3. All the aforesaid facts show that the plaintiff's contention that he had kept on demanding the balance sale consideration and that was not paid is unacceptable. Thus, there is no corroboration to the opinion evidence of PW.3-the handwriting expert.
[SECTION][SECTION]. Ex.[SECTION]-the affidavit is also sworn before [ENTITY] the notary who has authenticated Ex.[SECTION]. Ex.[SECTION] & [SECTION] show that one [ENTITY] advocate has identified the executant of both the documents before notary [ENTITY]. There was no impediment for the plaintiff to examine them to prove that he is not the executant of those two documents. Thus, plaintiff failed to disprove the execution and authentication of Ex.[SECTION]. On such failure it is for the plaintiff to explain without receiving the balance sale consideration why he executed Ex.[SECTION] authorising defendant No.1 to do certain things [CASE NUMBER] including the transfer of the property to third parties. That probabalises the contention of the defendants that on 2[SECTION].03.1988 plaintiff received the balance sale consideration and executed Ex.[SECTION] & [SECTION]. That also goes to show that since Ex.P.9 was in favour of defendant No.1 plaintiff has executed Ex.[SECTION] GPA in her favour.
[SECTION]5. When there is no legal disability for defendant No.1 to acquire the property, there is no disability for her to be a power of attorney holder. The trial Court without properly appreciating the overall evidence and circumstances in the case, the applicable law and precedents comes to the conclusion that execution of GPA in favour of defendant No.1 is unnatural and Ex.[SECTION], [SECTION] & [SECTION] are not proved. That has led to gross injustice.
[SECTION]6. So far as the contention that in the absence of any appeal by defendants 1 and 2, defendant No.[SECTION] cannot prefer this appeal and deny the allegations of fraud and forgery, the Supreme Court in [PRECEDENT]. -vs- [PRECEDENT]; has held that the purchaser pendenti-lite is entitled to all the defence available to his vendors/predecessors in title including the right of appeal except the plea of bonafide purchaser, for value without notice. Therefore, there is no merit in the contention.
[SECTION]7. It is to be noted that PW.2 in his evidence states that despite all these proceedings he is on cordial terms with defendants 1 & 2. Ex.P.3 the charge sheet records summoned by the plaintiff himself contains his complaint dated 05.05.1989 filed before the K.R. Puram Police in Crime No.1[SECTION]2/1989. In that document he has stated that he has sold the property to one [ENTITY] during October 1998 under a general power of attorney. He admits the possession of defendant No.3 as on 30.0[SECTION].1989. That lends support to the contention of the defendants that plaintiff having received the sale consideration and executed the documents has at the instigation of PW.1 has [CASE NUMBER] tried to take unfair advantage and falsely implicated the defendants in civil and criminal cases.
[SECTION]8. For the aforesaid reasons, the impugned judgment and decree is unsustainable in law and facts. Therefore, the appeal is allowed with costs throughout payable by the first respondent to the appellant within four weeks from the date of receipt of copy of this judgment. The impugned judgment and decree are hereby set aside. The suit of the plaintiff is hereby dismissed. Draw decree accordingly.
JUDGE Pn,hr