1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.348 OF 2009. Jemla S/o Hardas Rathod ... Appellant. Versus Suryabhan S/o Hardas Rathod and others ... Respondents. ... Mr.P.R.Katneshwarkar, advocate for the appellant ... CORAM : V.R.KINGAONKAR,J. Date : 17.11.2009. PER COURT 1. Heard learned counsel. 2. The appellant Jemla is original plaintiff. He filed suit for declaration to the effect that three (3) sale deeds No.722/83, 370/87 and 1976/87 are null and void and not binding on his rights. He also sought perpetual 2 injunction restraining the defendants (Respondents) from causing obstruction in his lawful possession over the suit lands. The trial Court as well as the first appellate Court came to the conclusion that the appellant (plaintiff) was in lawful possession of the suit lands. Both the Courts, however, held that he failed to prove that the three sale deeds were not executed by him and were fabricated document, brought about by impersonation of the executable/purported executable. Therefore, relief regarding declaration that the said sale deeds were null and void and were inoperative against the appellant (plaintiff - Jemima) came to be dismissed. It is against such concurrent findings of facts that plaintiff Jemima has filed the Second Appeal. 3. Mr.Katneshwarkar, would submit that negative burden could not be placed on plaintiff (Jemla). He further submits that the sale deeds should have been proved by the contesting defendants and mere absence of proof regarding opinion of the handwriting expert should not have 3 been considered by the Courts below without examination of the handwriting expert. 4. It appears that the sale deeds were referred to the Government handwriting expert for his opinion. The thumb impression of plaintiff Jemla was obtained in the Court for the purpose of such comparison of the thumb impression on the documents which were allegedly fabricated. Though, opinion of the handwriting expert was received, yet, plaintiff Jemla did not examine the handwriting expert. It appears that opinion of the handwriting expert did not favour him. Be that may as it is, he could have called the handwriting expert for cross-examination in order to show inaccuracy in the opinion or could have sought opinion of another handwriting expert. The non-examination of the handwriting expert is duly appreciated by the trial Court as well as the first appellate Court. Considering these aspects, omission of the Courts below to grant part of the decree regarding declaration that the sale deeds were forged, null and void can not be faulted with. 4 5. This Second Appeal falls outside the scope of Section 100 of the C.P.C. in view of "Gurdev Kaur and others Vs. Kaki and others" AIR 2006 Supreme Court 1975. Hence, the Second Appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa34809