IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 RSA.No. 797 of 2007() --------------------- AS.78/2004 of SUB COURT, KASARAGOD OS.406/1996 of MUNSIFF COURT, KASARAGOD .................... APPELLANTS/APPELLANTS/DEFENDANTS: ---------------------------------------------------- 1. ABDULLA KUNHI, S/O ABDUL RAHIMAN, VALACHAL HOUSE, KAKKALAKUNNU, BOMBRANA VILLAGE, BOMBRANA P.O., KASARAGODE. 2. RUKHIYA, W/O ABDULLA KUNHI, -DO- -DO- 3. KAMMADTH, W/O ABDUL RAHMAN, -DO- -DO-. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENT/ RESPONDENT/PLAINTIFF: ----------------------------------- T.A.ILYAS, S/O ABDUL KHADER HAJI, THURTHI, KASARAGODE CUSBA VILLAGE, KASARAGODE P.O., KASARAGODE. ADV. SRI.V.V.ASOKAN SMT.S.AMINA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.797 of 2007 --------------------------------------- Dated this 21st day of October 2009 JUDGMENT Respondents appears through counsel. 2. The second appeal is directed against judgment and decree of learned Sub Judge, Kasaragod in A.S.No.78 of 2004 confirming judgment and decree of learned Munsiff, Kasaragod in O.S.No.406 of 1996. That was a suit filed by respondent for eviction of appellants from the building in the suit property with damages for use and occupation. Learned Munsiff granted decree in favour of respondent which, the first appellate court has confirmed. The second appeal is filed urging the following as substantial questions of law; (i) Are the courts below justified in law in holding that Ext.A1 sale deed is a genuine document executed by Sri.Abdul Rahiman, the predecessor in interest of the appellants? (ii) Are the courts below justified in law in placing reliance on Exts.C1 to C5 and concluding that the thumb impression found in Ext.A1 sale deed is that of late Abdul Rahiman? (iii) Are the courts below justified in law in accepting the evidence of CW1 without permitting the defendants to adduce expert evidence to prove that the thumb impression in Ext.A1 sale deed is not that of Abdul Rahiman? (iv) Are the courts below justified in law in directing surrender of possession of plaint A Schedule house to the R.S.A.No.797 of 2007 2 respondent without proving their possession of the property in which the house is situated? Respondent claimed that he purchased 15 cents in R.S.No.97/1B and 35 cents in R.S.No.98/2A1 from one Abdul Rahiman as per Ext.A1, assignment deed dated 23-02-1995. There is a building in the 35 cents in R.S.No.98/2A1 which, on the request of the assignor (Abdul Rahiman) was permitted to be occupied by him and family for a short period. Abdul Rahiman died and appellants who are his legal heirs continued occupation of the building with the permission of respondent. Respondent wanted appellants to vacate the building which they resisted. Hence the suit for eviction with damages for use and occupation at the rate of Rs.50 per month. Appellants denied that Abdul Rahiman executed Ext.A1, sale deed in favour of respondent. They claimed that the said document is the result of forgery and that Abdul Rahiman was illiterate. They denied that it was with permission of respondent that Abdul Rahiman and themselves stayed in the building in the suit property. They claimed to be absolute owners in possession of the property on the death of Abdul Rahiman. Respondent gave evidence as PW1, examined PWs.2 and 3 and proved Exts.A1 to A14. CW1 is the handwriting/fingerprint expert who issued Ext.C1, report. Appellant No.1 gave evidence as DW1 and proved Exts.B1 to B4. R.S.A.No.797 of 2007 3 3. Contention raised by learned counsel for appellant is that courts below went wrong in relying on Ext.C1 in the absence of sufficient test conducted by CW1, the expert. It is also the contention of learned counsel that the admitted signature/thumb impression of Abdul Rahiman was produced before CW1 for comparison with the disputed signature/thumb impression in Ext.A1. According to the learned counsel, courts below erred in acting upon the evidence of PWs.1 to 3 and CW1 to conclude that Abdul Rahiman executed Ext.A1 and other disputed documents. Learned counsel for respondent contends that the decision of courts below is based on the evidence on record and so far as it is not shown that finding entered by the courts below is perverse, this court cannot interfere in second appeal as no substantial question of law is involved. 4. Ext.A1 is the sale deed dated 23-02-1995 which recites that Abdul Rahiman received Rs.55,000/- by way of consideration for the 50 cents and building and assigned the property in favour of respondent. Appellants have a contention that consideration stated in Ext.A1 is meagre which alone indicated that no such document was executed by Abdul Rahiman. There is no evidence to hold that consideration stated in Ext.A1 is low. At any rate that by itself is not sufficient to hold against execution of the document. PW2 is one of the attesting witnesses in Ext.A1 and has given evidence regarding due R.S.A.No.797 of 2007 4 execution and attestation of that document. Another attesting witness is appellant No.1. When examined as DW1, he conveniently tried to avoid answering questions about his attesting Ext.A1. He did not disown the signature purporting to be his in Ext.A1. Instead he was trying to avoid a positive answer stating that he cannot say definitely whether the signature purporting to be his in Ext.A1 is really his. Learned counsel appearing for respondent in the trial court confronted DW1 with his signature in his written statement and vakkalath, and then also he pleaded ignorance whether he had signed the said documents. 5. The recital in Ext.A1 is that the assignee, respondent is to discharge the liability created by Abdul Rahiman in favour of Co- operative Bank as per a mortgage deed. According to the respondent, in accordance with that stipulation he discharged the liability of the bank and obtained Ext.A8, registered receipt dated 03-02-1995 executed on behalf of that bank. Official of that bank has given evidence as PW3. Ext.A6 is the mortgage deed allegedly executed by Abdul Rahiman in favour of that bank. PW3 is a witness in that document and has given evidence that Abdul Rahiman signed Ext.A6 in his presence. Respondent has produced Ext.A9, receipt for payment of revenue for the suit property, Ext.A10, demand notice for payment of building tax and Exts.A11 to 13, receipts for payment of such tax for R.S.A.No.797 of 2007 5 the building in question. 6. CW1, the expert examined the disputed signature in Ext.A1 with the signature in Ext.A6. Exts.C2 to C5 are enlarged thumb impressions taken from Exts.A1 and A6. Ext.C1 is the report submitted by CW1. According to him the signatures/thumb impressions in Exts.A1 and A6 are of the same person. Appellants filed I.A.No.1964 of 1998 challenging Ext.C1, report and requesting that Exts.A1 and A6 may be sent to another expert for opinion since according to them, CW1 is not qualified. That application was allowed by the trial court which the respondent challenged in this court in C.R.P.No.553 of 1999. This court directed trial court to treat I.A.No.1964 of 1998 as objection preferred by the appellants to Ext.C1 and to consider whether the report is acceptable in evidence. Trial court after examination of CW1 found that the report (Ext.C1) is acceptable. That order was challenged by the appellants in this court in C.R.P.No.2990 of 2001 but, it ended in dismissal. According to the learned counsel for appellants while dismissing C.R.P.No.2990 of 2001 appellants were given liberty to raise their contentions against acceptability of Ext.C1 report in the appellate court if ultimately the suit was decided against them and hence appellants are entitled to urge all their contentions against the acceptability of Ext.C1. Learned counsel contends that all the necessary tests required for identification of the disputed R.S.A.No.797 of 2007 6 signature/thumb impression were not contended by CW1 and that even as per his version he compared only the ridge characteristics of which there was only eight similarities. 7. So far as it is not shown that the report of the expert is wrong or unacceptable, that has to be given due weight. The Supreme Court in Mohan Lal Vs. Ajit Singh (AIR 1978 SC 1183) stated in para 45 and 46 thus: “ ... Nothing substantial has been urged to challenge the opinion of the Director of the Finger Print Bureau, and all that has been argued is that as there were only 8 points of similarity, there was not enough basis for the expert's opinion about the identity of the finger prints. Reference in this connection has been made to B.L.Saxena's “Identification of Handwriting, Disputed Documents, Finger Prints, Foot Prints and Detection of Forgeries, 1968 Edition, page 247, Walter R. Scott's “Fingerprint Mechanics” page 62, and M.K.Mehta's “The Identification of Thumb Impressions and the Cross- examination of Finger Print Experts” 2nd Edition, page 28. We have gone through these books but they do not really support the argument of the learned counsel for the respondent. While referring to the old practice of looking for a minimum of 12 identical characteristic details, Saxena has admitted that the modern view is that six points of similarity of pattern are sufficient to establish the identity of the fingerprints. Walter Scott has stated that “as a matter of practice, most experts who work with fingerprints constantly satisfy themselves R.S.A.No.797 of 2007 7 as to identity with eight or even six points of identity”. Mehta has also stated that in the case of blurred impressions the view of some of the Indian experts is that if there were three identical points, they would be sufficient to prove the identity. There is no gainsaying the fact that a majority of fingerprints found at crime scenes of crime articles are partially smudged, and it is for the experienced and skilled fingerprint expert to say whether a mark is usable as fingerprint evidence. Similarly it is for a competent technician to examine and give his opinion whether the identity can be established, and if so whether that can be done on eight or even less identical characteristics in an appropriate case. As has been pointed out, the opinion of the Director of the Finger Print Bureau in this case is clear and categorical and has been supported by adequate reasons. We have therefore no hesitation in accepting it as correct....” In this case, evidence of CW1 shows that of the ridge characteristics, there were eight similarities based on which he concluded that the disputed signature/handwriting in Ext.A1 is that of the person who signed and placed thumb impression in Ext.A6. 8. It is contended by learned counsel that Ext.A6 is not an admitted document and hence it should not have been used for comparison. This argument is equally unsustainable for the reason that in I.A.No.1964 of 1998 request made by the appellants was to sent Exts.A1 and A6 to another expert from which, I am to understand that R.S.A.No.797 of 2007 8 the authenticity of the signature in Ext.A6 is not disputed by the appellants. There is also evidence of PW3 that Ext.A6 was signed by late Abdul Rahiman. On going through the judgment under challenge and hearing learned counsel on both sides, I do not find any substantial question of law involved in this appeal. Decision of the courts below rest on a proper appreciation of the oral and documentary evidence. So far as it is not shown that the finding is perverse or not supported by any evidence, conclusion reached on facts cannot be challenged in second appeal. There is no merit in the second appeal requiring its admission. Resultantly the second appeal fails and it is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/