Regular Second Appeal No. 88 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 88 of 2009 Date of decision : May 30, 2011 Jhabdu Ram and another ....Appellants versus Jai Bhagwan and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Surender Lamba, Advocate, for the appellants Mr. RK Gupta, Advocate, for the respondents L.N. Mittal, J. (Oral) Defendants Jhabdu Ram (defendant no. 2) and his son Satbir (defendant no. 1) having failed in both the courts below are in second appeal. Respondents/plaintiffs Jai Bhagwan and his minor son Brijpal filed suit against the appellants. Plaintiff no. 1 Jai Bhagwan is biological son of Mewa sister of Sheo Chand whose property is in dispute. Case of the plaintiffs' is that plaintiff no. 1 was adopted by Sheo Chand and is his adopted son. Sheo Chand suffered consent decree dated 1.6.1972 in civil suit no. 305 of 1972 regarding half share of the suit land in favour of Regular Second Appeal No. 88 of 2009 -2- plaintiff no. 1. Subsequently defendant no. 2 instigated Sheo Chand to challenge the said consent decree. However, written compromise was effected in that suit when Sheo Chand realised the intentions of defendant no. 2. In view of written compromise dated 13.1.1988 the said suit filed by Sheo Chand was dismissed. Defendant no. 1 then got executed Will dated 9.9.1987 in his favour from Sheo Chand for half share of the suit land. However, the said Will was cancelled by Sheo Chand and he executed Will dated 12.1.1988 in favour of plaintiff no. 1. Thereafter, defendant no. 1 Satbir Singh filed civil suit No. 194 of 1989 against Sheo Chand in which impugned consent decree dated 8.4.1989 regarding half share of the suit land was allegedly suffered by Sheo Chand in favour of Satbir Singh defendant no. 1 herein. The said decree has been challenged in the instant suit alleging that the said decree was not suffered by Sheo Chand and also that the same is bad on account of non-registration. Defendants admitted that plaintiff no. 1 is son of sister of Sheo Chand. However, it was denied that plaintiff no. 1 was adopted by Sheo Chand. Defendants also claimed to be collaterals of Sheo Chand. Plaint averments were broadly controverted. It was pleaded that Sheo Chand himself suffered the impugned consent decree dated 8.4.1989 in favour of defendant no. 1 and the said decree did not require registration. The said decree was defended by the defendants. Learned Civil Judge (Junior Division), Mahendergarh vide judgment and decree dated 27.8.2004 decreed the plaintiffs' suit. First appeal preferred by the defendants has been dismissed by learned Regular Second Appeal No. 88 of 2009 -3- Additional District Judge, Narnaul vide judgment and decree dated 13.10.2008. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. It has come in evidence both oral as well as documentary and is almost undisputed that Sheo Chand suffered consent decree dated 1.6.1972 of half share of the suit land in favour of plaintiff no. 1 and subsequently, challenged the same by filing suit which was compromised on 13.1.1988 and in view of compromise, the said suit was dismissed. Resultantly, consent decree dated 1.6.1972 in favour of plaintiff no. 1 stood upheld. Similarly, Sheo Chand executed Will dated 9.9.1987 in favour of defendant no. 1 but the same was cancelled vide cancellation deed dated 12.1.1988 and he executed fresh Will dated 12.1.1988 in favour of plaintiff no. 1. The said Will has also been duly proved by the plaintiffs by examining scribe and three attesting witnesses thereof. In view of the aforesaid, it is highly doubtful that Sheo Chand would suffer consent decree dated 8.4.1989 in favour of defendant no. 1 because Sheo Chand had already effected compromise with plaintiff no. 1 whereby decree dated 1.6.1972 was affirmed in favour of plaintiff no. 1. Sheo Chand had also executed Will dated 9.9.1987 in favour of defendant no. 1 but cancelled the same on 12.1.1988 and also executed Will on 12.1.1988 in favour of plaintiff no. 1. Consequently, there was no occasion for Sheo Chand thereafter to suffer consent decree dated 8.4.1989 in favour Regular Second Appeal No. 88 of 2009 -4- of defendant no. 1. In addition to the aforesaid, alleged thumb impression of Sheo Chand on vakaltnama in suit no. 194 of 1989 in which impugned consent decree dated 8.4.1989 was suffered is proved to be not of Sheo Chand. In this regard there is testimony of Vijay Rastogi PW8 Fingerprint Expert who has opined and stated that alleged thumb impression of Sheo Chand on the said vakaltnama did not match with his standard thumb impression. To the same effect is also the report of Fingerprint Expert from Forensic Science Laboratory, Madhuban. Defendant did not examine any Fingerprint Expert to rebut the aforesaid reports. Science of comparison of fingerprints is perfect science. Report of plaintiffs' Expert as well as Expert from Government Laboratory (independent Expert) remained unrebutted. Non- examination of any Fingerprint by the defendants gives rise to adverse presumption that the defendants very well knew that the alleged thumb impression of Sheo Chand on the aforesaid vakaltnama had not been affixed by Sheo Chand. This is also so proved by the aforesaid reports of the two Experts. Consequently, impugned consent decree dated 8.4.1989 was not suffered by Sheo Chand himself but was obtained by impersonation. In the aforesaid context it is also significant to notice that written statement admitting the claim of defendant no. 1 herein (who was plaintiff in suit no. 194 of 1989) was filed on behalf of Sheo Chand. Both the aforesaid Experts have opined that the said written statement was typed on blank paper already bearing thumb impressions of Sheo Chand. This conclusion also stands unrebutted as defendants did not examine any Regular Second Appeal No. 88 of 2009 -5- Expert witness to rebut the same. Consequently, the said written statement was also not filed by Sheo Chand himself but was prepared on blank paper bearing his thumb impressions. Learned counsel for the appellants vehemently referred to statements of JS Yadav, Advocate DW7 and Rajbir Singh, Advocate DW8 who represented defendant no. 1 herein (plaintiff in suit no. 194 of 1989) and Sheo Chand in the said suit. However, their statements do not rebut the reliable evidence led by the plaintiffs as discussed hereinbefore which clearly depicts that impugned consent decree dated 8.4.1989 was not suffered by Sheo Chand himself. There is concurrent finding by both the courts below in favour of plaintiffs. The said finding is based on very cogent evidence and is supported by detailed reasons. The said finding does not suffer from any illegality or perversity nor it is based on misreading or misappreciation of evidence. On the contrary, the said finding is the only reasonable finding that can be arrived at on appreciation of evidence on record. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. No question of law much less substantial question of law arises for adjudication in the instant second appeal. The appeal is completely meritless and frivolous and is accordingly dismissed. ( L.N. Mittal ) May 30, 2011 Judge 'dalbir'