RSA No.692 of 1992 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.692 of 1992 Date of Decision: 9.4.2008 Sham Kaur through LRs ..Appellant. Vs. Teja Singh ..Respondent. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.Sanjay Kaushal, Advocate for the appellant. Mr.P.S.Jammu, Advocate for respondent. * * * Rakesh Kumar Jain, J. Defendants are in appeal. Both the Courts below have decreed the suit of the plaintiff to the effect that decree dated 23.10.1986 in favour of Sham Kaur is null and void and ineffective against the rights of the plaintiff, who was held to be entitled to succeed to the land in dispute along with defendants in equal share and consequently, restrained the defendants from alienating the suit land in respect of the share of the plaintiff, who was also held to be entitled to joint possession. In brief, the facts of the case are that Sardara Singh and Sham Kaur were husband and wife. They had five sons Teja Singh, Gurdev Singh, Nirmal Singh, Malkiat Singh and Jugraj Singh. Sardara Singh executed an unregistered Will dated 2.4.1978 bequeathing his entire property to his wife Sham Kaur and died on 28.6.1984. After the death of Sardara Singh, Sham Kaur filed Civil Suit No.257-1 on 29.8.1986 for possession as owner and mortgagee claiming herself to be the sole heir of Sardara Singh on the basis RSA No.692 of 1992 -2 - of Will dated 2.4.1978. In this suit, all the five sons filed joint written statement and contested her claim. After Sham Kaur, who was the plaintiff in that suit closed her evidence, Malkiat Singh one of the defendants and Sh.V.K.Bansal, counsel for the defendants, made a statement in the Court on 23.10.1986 that they do not want to lead any evidence. Consequently, the suit was decreed on 23.10.1986 by the Court of Sh.B.J.Nangli, Sub Judge, Zira. Teja Singh, one of the defendants in Civil Suit No.257-1 dated 29.8.1986 was not satisfied with the aforesaid judgment and decree. He filed suit for declaration challenging the judgment and decree dated 23.10.1986 on the ground that the decree has been obtained by fraud and misrepresentation. He alleged that he is owner of 1/6th share in respect of the property in dispute and also prayed for injunction restraining the defendants Sham Kaur and other four brothers from alienating the suit land to any person. He pleaded that Sardara Singh was owner of land described in Clause (A to E) and as mortgagee in respect of the land mentioned in Clause (F) of the head note of the plaint. According to him, Hardit Singh is still recorded to be owner of the land mortgaged by him who had brought Suit No.59 of 1963 for redemption of land against Sardara Singh but the same was dismissed being barred by limitation. Hardit Singh preferred appeal against that judgment and decree but it was dismissed by learned District Judge, Ferozepur on 31.10.1965. Thereafter, Appeal No.268 of 1966 filed by Hardit Singh before this Court was also dismissed on 22.12.1966. Though Sardara Singh became full owner of the mortgaged land but Hardit Singh continued to be recorded in the revenue record as owner of the land. It was claimed that Sardara Singh had died on 28.6.1984 but the mutation of RSA No.692 of 1992 -3 - inheritance was sanctioned in favour of Teja Singh, his four brothers and their mother Sham Kaur in equal shares being natural heirs. He claimed that on 29.8.1986 Sham Kaur, at his back, filed suit for possession and ownership of the land against him and his four brothers on the basis of Will which was never executed by Sardara Singh and Sham Kaur in connivance with other defendants, impersonated him (Teja Singh) by some one, got statement recorded in the Court of Sh.B.J.Nangli, Sub Judge, Zira and had obtained a collusive decree in her favour. It was specifically submitted that he was neither served nor he ever appeared in the Court, therefore, there was no occasion for him to suffer a statement in the Court in favour of Sham Kaur. Defendants resisted the suit and filed joint written statement. In the preliminary objections, it was claimed that the suit is barred by principles of res judicata as in Civil Suit No.257-1 of 1986, they had engaged Sh.V.K.Bansal, Advocate, filed joint written statement and that suit was decided on merits wherein the Will in question has been upheld. It was also pleaded that mutation of inheritance was wrongly sanctioned in favour of natural heirs of Sardara Singh because he had executed a valid Will in favour of Sham Kaur which has been upheld by the Civil Court. According to the defendants, Teja Singh had been attending the Court and the suit has been decided in his presence. Teja Singh also filed replication to the written statement filed by the defendants. On the pleadings of the parties, the following issues were framed by the trial Court : 1) Whether the judgment and decree dated 23.10.86 in favour of Smt.Sham Kaur is collusive and null and void and was obtained by fraud and misrepresentation ? OPP. RSA No.692 of 1992 -4 - 2) Whether the plaintiff did not appear in the Court of Sh.B.J.Nangli, Sub Judge, Zira on 18.9.1986 ? OPP. 3) Whether the suit is barred by the principles of res judicata ? OPD. 4) Whether the plaintiff has got no locus standi to file this suit ? OPD. 5) Relief. Both the parties led evidence and after considering their evidence, the trial Court held that the plaintiff could not be said to have been served in the case and all the proceedings regarding filing of power of attorney and the written statement on his behalf, were manipulated by defendants No.2 to 5, therefore, the judgment and decree passed in Civil Suit No.257-1 of 1986 was not binding against his rights. The first Appellate Court dismissed the appeal filed by the defendants disbelieving the statement of Sh.V.K.Bansal, Advocate, Zira (DW1) and also the report of the Document Expert Sh.Satwant Puri (DW3) on the ground that the opinion of an Expert is a weak type of evidence. It was observed that the expert invariably depose in favour of a party by whom they are engaged and paid. It was also observed by the first Appellate Court that in the present suit, Teja Singh plaintiff had signed the power of attorney whereas in the previous Suit No.257-1 of 1986 there was no occasion for him to thumb mark power of attorney etc. So far as the point of res judicata is concerned, the first Appellate Court has held that earlier suit was not decided on merits, therefore, principles of res judicata will not apply. At the time of hearing of this appeal, counsel for the appellant has submitted to the Court following substantial questions of law which according to him, are involved in the appeal: 1. Whether the suit filed by the plaintiff-respondent Teja Singh RSA No.692 of 1992 -5 - from which the present Regular Second Appeal is arising barred by the principles of res judicata enshrined in Section 11 CPC in view of the judgment and decree dated 23.10.1986 in Civil Suit No.257-1 passed by Sh.B.J.Nangli, Sub Judge 2nd Class, Zira (Exhibit D-3)? 2. Whether the evidence of Sh.Satwant Puri, DW-3, finger print expert, can be rejected in view of the observations of the Hon'ble Supreme Court in AIR 1979 SC 1708 that the science of identifying thumb impression is an exact science and does not admit to any mistake or doubt? 3. Whether the statement of V.K.Bansal, Advocate DW1 and the statement of DW3 Dr.Satwant Puri be disbelieved in the absence of any rebuttal evidence? Sh.Sanjay Kaushal, Advocate, counsel for the appellant has argued that the findings recorded by the First Appellate Court are conjectural. It was pointed out by him that the plaintiff had taken a plea that in the earlier suit he was impersonated and had never participated. However, plaintiff Teja Singh and all other defendants herein, who were defendants in the earlier suit, had signed/thumb marked the written statement after admitting the contents to be correct. Thumb mark of Teja Singh on the verification is at mark Q3 and on the written statement at mark Q2. He has preferred certified copy of the power of attorney Ex.D1 and written statement dated 18.9.1986 Ex.D2 filed in the earlier suit. Counsel for the appellant has vehemently argued that thumb impression of Teja Singh on power of attorney Ex.D1 and written statement Ex.D2, have been compared by Sh.Satwant Puri, Document Expert, who had been examined as DW3 and had reported that specimen of thumb impression is identical with the disputed thumb impression. It has been argued by him that thumb impression of Teja Singh are proved on record of the earlier suit from which RSA No.692 of 1992 -6 - it is amply proved that he had not only participated in the proceedings himself but has filed the written statement and verified its contents to be correct. Counsel for the appellant has submitted that the finding of the First Appellate Court that the opinion of an Expert is a weak type of evidence and weighs in favour of a party by whom they are engaged, is an uncalled for observation. He has relied upon a decision of the Hon'ble Supreme Court in the case of Jaspal Singh v. State of Punjab AIR 1979 SC 1708 to assert that science of identifying thumb impression is an exact science and it does not admit any mistake or doubt. Although this observation has been made by the Hon'ble Supreme Court in a criminal case but it is relevant herein for the purpose to opine that in a case where thumb impression of a person, who is claimed himself to be impersonated, is in dispute, the best course is opinion of an Expert as the science of finger print is an exact science. In the case of examination of signatures, there could be some percentage of doubt or error but in a case of examination of thumb impression, the report of the Expert has to be believed especially in the absence of any other report produced by the plaintiff, who has claimed that he has been impersonated. The counsel for the appellant further relied on the decision rendered in Hukam Singh and others Vs. Smt.Udham Kaur 1969 PLR 908 on the point that evidence of thumb impression expert has an important bearing and is bound to be of great value in determining the issue regarding the validity of a document which purports to bear thumb impressions of an executant when those thumb impressions are denied as science of finger print is more exact than that relating to hand writing. So far as the present appellants are concerned, they had discharged their burden by not only producing the report of the Expert but also examination of the Expert in the RSA No.692 of 1992 -7 - witness box but the plaintiff has failed to rebut the evidence led by the defendants by producing his own witness or any report in controversion. It has further been argued by the counsel for the appellant that even if the plaintiff has started signing in the present suit, it does not absolve him from his liability if it is proved in the previous suit that the pleadings were thumb marked by him and he had participated in the proceedings because his main grouse is that he was not even served. It has further been contended that so far as the statement of Sh.V.K.Bansal, Advocate is concerned that has been wrongly disbelieved because he had categorically stated when appearing as DW1 that he had read over and explained the contents to all the defendants including Teja Singh and they signed/thumb marked the written statement after admitting its contents to be correct. Counsel for the appellant further argued that the finding recorded by the First Appellate Court that decision of the previous suit does not operate as res judicata, is also incorrect as it is held that the same has not been decided on merits. He has drawn the attention of this Court to the judgment in the previous suit and had asserted that even if the defendants had not led any evidence, the plaintiff had to stand on her own legs to prove the issue with regard to the execution of Will for which the plaintiff had led evidence both oral as well as documentary and the Court after considering the entire evidence, has returned a positive finding that Sardara Singh had executed a valid Will in favour of the plaintiff on 2.4.1978. Therefore, it was contended that the earlier suit was decided on merits and the issue with regard to ownership of Sham Kaur cannot be re-agitated in the present suit. Sh.P.S.Jammu, counsel for the respondent/plaintiff has submitted that Will dated 2.4.1978 was unregistered. It was contended that RSA No.692 of 1992 -8 - at the time of mutation of inheritance, the plaintiff did not produce the Will. It was mainly contended by him that the Courts below had found that Teja Singh was not served in the previous suit, therefore, he has been held to have been impersonated. It was claimed that since both the Courts have decided against the defendants and have returned the findings of fact, no substantial question of law is involved in this appeal. I have heard counsel for the parties and have perused the record. Basically, the case of the plaintiff Teja Singh is that neither he had engaged Sh.V.K.Bansal, Advocate in any suit filed by Sham Kaur nor submitted any written statement. Therefore, the decree in favour of Sham Kaur in Civil Suit No.257-1 of 1986 is not binding on him. While appearing as PW1 Teja Singh stated in cross-examination that he can not say as to whether the power of attorney in favour of Sh.V.K.Bansal, Advocate and the written statement which has been shown to him from the summoned file bears his thumb mark or not, therefore, the defendant-appellant examined Sh.V.K.Bansal, Advocate as DW1, who categorically stated that he was engaged by all the five sons of Sham Kaur including Teja Singh in the case titled as Sham Kaur Vs. Gurdev Singh and others. He stated that copy of power of attorney Ex.D1 and copy of the written statement Ex.D2 bear thumb impression of Teja Singh. He also pointed out the thumb impression of Teja Singh on the written statement at mark Q2 and on verification mark Q3. It was also stated by him that he had read over and explained the written statement to all the defendants including Teja Singh. Since the burden was upon the defendant, the thumb impressions of Teja Singh were taken in Court, which were marked as S1, S2 of left hand and S3 of the right hand on RSA No.692 of 1992 -9 - specimen sheet Ex.DY. The specimen thumb impressions were got examined through Sh.Satwant Puri, Document Expert, Patiala, who compared them with mark Q1 on the power of attorney dated 18.9.1986 and mark Q2 and Q3 on the written statement dated 18.9.1986 available on the file Sham Kaur Vs. Gurdev Singh and others and vide his detailed report Ex.DW3/A, opined that those belong to the same person. Satwant Puri was also examined as DW3 but in the cross examination neither his veracity could be challenged nor any evidence in controversion was led by the plaintiff Teja Singh by producing another handwriting expert, therefore, the finding recorded by the First Appellate Court that the opinion of an Expert is very weak type of evidence and the experts depose in favour of a party by whom they are engaged, is totally conjectural especially in view of decision rendered in Jaspal Singh and Hukam Singh's case (supra) wherein it has been held that science of finger print is more exact than that of handwriting. Once it is proved that Teja Singh had engaged Sh.V.K.Bansal, Advocate and filed written statement, he can not take the plea that he was not served as there is a report dated 14.9.1986 on the record of the case Suit No.257-1 of 1986 that he was lying admitted in Hospital at Moga. The First Appellate Court has wrongly presumed non-participation of Teja Singh in the earlier Suit No.257-1 of 1986 on the ground that in the present suit, he had signed all the pleadings, therefore, there was no occasion for him to thumb mark pleadings and power of attorney in that suit. Once it is found as a matter of fact that in the previous case, Teja Singh had not only engaged a counsel but had also filed written statement, his participation is proved and the question of his impersonation is over-ruled whether he put his signatures in the present case on the pleadings or had thumb marked the previous one, RSA No.692 of 1992 -10 - makes no difference because in that eventuality the earlier decree in favour of Sham Kaur cannot be held to be fraudulent on the basis of impersonation. Therefore, questions of law No.2 and 3 are answered in favour of the appellant and against the respondents and it is held that in the absence of any cogent evidence led by the plaintiff-respondent, the statement made by Sh.V.K.Bansal, Advocate DW1 and Dr.Satwant Puri, DW3 and report Ex.DW3/A cannot be disbelieved as it is held that evidence of a thumb impression Expert has an important bearing and is of great value in determining the issue regarding the validity of a document if the executant whose thumb impressions are denied because the science of finger print is more exact than that of handwriting. So far as the question of law pertaining to res judicata is concerned that too has to be determined in favour of the appellant. The ownership of Sham Kaur has been determined in the previous suit on the basis of Will dated 2.4.1978 which has been proved by leading cogent evidence. In the previous suit, plaintiff had appeared herself as PW1 and got examined Malkiat Singh as PW2, who was Scribe of the Will and Jagir Singh as PW3, who was marginal witness. While deciding issue No.1, the Court had found that Sardara Singh was in sound disposing mind and without any pressure, executed the Will at his free Will and accord which was attested by Jagir singh, Member Panchayat who appeared as PW3, therefore, the issue was decided in favour of Sham Kaur on merits. If the defendants did not lead any evidence and Sham Kaur had proved the Will in her favour, then, the question of her being owner of the property in dispute can not be re-agitated in the present suit. Therefore, the present proceedings are hit by principles of res judicata. The First Appellate Court has RSA No.692 of 1992 -11 - apparently committed an error while observing that the earlier case was not decided on merits. The Hon'ble Supreme Court in the case reported as Saroja Vs. Chinnusamy (Dead) by LRs and Another 2007(4) Civil Court Cases 101 held that even an ex parte decree is as good and effective as a decree passed after contest and operates as res judicata unless the party challenging the decree satisfies the Court that ex parte decree was obtained by fraud. In the present case, once it has been held that the earlier decree was not obtained by Sham Kaur by fraud and as a matter of fact, was not even ex parte decree, principle of res judicata is fully applicable and the present suit is thus, barred. Therefore, the question of law No.1 as framed by the appellant is also answered in her favour. In view of above discussion, the present appeal is allowed and the judgments and decrees of both the Courts below are hereby set aside with costs. (Rakesh Kumar Jain) 9.4.2008 Judge Meenu Note : Whether to be referred to reporter Yes/No.