1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil Second Appeal No.130/1982. (Rayees Mohammed & Others Vs. LRs of Val Chand) DATE OF JUDGMENT : July 14th, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Reportable Mr. Harish Purohit for the appellants. Mr. Arvind Shrimali for the respondent(s). BY THE COURT : Instant second appeal was filed by defendant appellant late Musaji s/o Abrahim against late Val Chand, respondent-plaintiff. Both defendant Musa and plaintiff Val Chand died during the pendency of this second appeal, therefore, legal representatives of both the parties were taken on record. The appellant preferred this second appeal under Section 100, C.P.C. against the judgment and decree dated 21.08.1982 passed by the District Judge, Dungarpur in Civil Appeal No.18/80, whereby, the learned first appellate Court reversed the judgment and decree dated 16.04.1980 passed by the Civil Judge, 2 Dungarpur in Civil Original Suit No.180/72 (12/76), whereby, the learned trial Court dismissed the suit for eviction filed by plaintiff-respondent late Val Chand. According to facts of the case, respondent-plaintiff Val Chand initially filed suit for eviction and payment of arrears of rent in the year 1972. The plaintiff's case was that he owned shop in village Navdera. The said shop was belonging to his uncle Prem Chand. The shop was rented out to Abrahim, father of defendant Musa on monthly rent of 4 Annas under document dated 10.09.1937. After the death of Abrahim, the premises was rented out to Musa on a monthly rent of Re.1/-. As per the averments made in the plaint, defendants paid amount of rent as Rs.15/-, Rs.45 and Rs.12/-, in all, Rs.72/- in samwat years 2020, 2023 and 2024. Thereafter, no rent was paid, therefore, the plaintiff who was in need of his premises for reasonable and bona fide necessity terminated the tenancy on 12.09.1972 and filed suit for eviction before the civil Court and prayer was made for decree of eviction of the premises described in para 1 of the plaint. The suit was filed on the ground of bona fide necessity and default in payment of rent. The defendant filed written-statement and controverted the 3 allegations made in the plaint and it is pleaded that premises in dispute is his own shop being ancestral property and he has been using the same without any obstruction. The defendant denied the allegation that premises was taken on rent by his father Abrahim by way of executing document on 10.09.1937. The defendant also denied the allegation with regard to renting out the premises in the year 1961 to him, so also, refused to accept the allegation that he has deposited rent in samwat years 2020, 2023 and 2024. In the additional plea, the defendant raised plea that he has made construction by spending amount of Rs.2674/- and, against that, the plaintiff never took objection of any kind which is positive evidence to show that the premises did not belong to the plaintiff. The defendant submitted that false suit has been filed because between their houses fall of a nalda exists. Further, it is specifically pleaded that a false kirayanama has been prepared upon which his false signatures have been put. It is also pleaded that all these things have been done with a view to put pressure upon the defnedant so as to close the rainy nalda or divert its direction. Learned trial Court after filing of the written- 4 statement proceeded to frame eight issues and, during the course of trial, Ex.-2 which is said to be kirayanama was sent to the hand-writing expert who gave opinion that signature upon the kirayanama are forged and, on that basis, finding was recorded by the trial Court that suit has been filed on the basis of document which does not bear signature of the defendant and vide judgment dated 16.04.1980 the suit filed by original plaintiff Valchand was dismissed by the Civil Judge, Dungarpur, against which, appeal was preferred and learned appellate Court while allowing the appeal set aside the judgment and decree passed by the trial Court vide judgment dated 21.08.1982 and decreed the suit for eviction and arrears of rent which is under challenge in this second appeal. In this appeal, at the time of admission, after hearing both parties, co-ordinate Bench of this Court formulated following two questions for consideration : “(1) Whether the first appellate Court was justified in setting aside the finding of the trial Court in respect of document Ex. 2 alteration from Veer Chand to Bal Chand ? (2) Whether the first appellate Court was justified in placing reliance upon document Ex. 2 in face of 5 the evidence on record ?” Upon perusal of the trial Court's judgment, it is obvious that there is finding with regard to issue No.1 that Ex.-2, alleged rent-note, is forged. The said finding is based upon the report of the hand-writing expert Ex.-A/9. The said hand-writing expert report was called by the trial Court upon application filed by the appellant-defendant before the Court on 16.04.1977. The defendant gave his specimen signature for sending the same to the hand-writing expert; meaning thereby, finding on issue No.1 arrived at by the trial Court is based upon the evidence and report of the hand-writing expert. After dismissal of the suit, the plaintiff preferred appeal before the District Judge. Learned District Judge while discrediting the report of the hand- writing expert, Ex.-A/9 reversed the finding of the trial Court and allowed the appeal and decreed the plaintiff's suit. In the present second appeal, defendant- appellants are challenging the finding of the first appellate Court on issue No.1 on the following grounds. Learned counsel for the appellants vehemently argued that the judgment and decree passed by the first appellate Court is erroneous because, on the one hand, document Ex.-2 was sent for identity of signature 6 by the Court with the consent of both the parties and, in pursuance of that, the hand-writing expert gave the finding that signature upon Ex.-2 is forged, then, the expert opinion was rightly accepted by the trial Court. But, the learned lower appellate Court reversed the finding which is not based upon cogent ground. More so, the reasons for discrediting the testimony of the hand-writing expert C.S. Sarvate, D.W.-6 is perverse and contrary to the basic principle of law. The judgment which is taken into account for the purpose of adjudicating the validity of the report of the hand- writing expert were not even applicable in the present case. Learned counsel for the appellants further argued that document Ex.-2 was sent by the Court for examination by the hand-writing expert because the said document was the sole basis for establishing the tenancy by the plaintiff Val Chand and the learned trial Court dismissed the suit rightly on the basis of the fact that D.W.-6 C.S. Sarvate found that the signature is forged. According to learned counsel for the appellant, the finding arrived at by the learned appellate Court reversing the finding of the trial Court is totally illegal and contrary to the evidence on record and basic 7 principle of law, therefore, the question formulated by this Court with regard to document Ex.-2 is required to be answered in favour of the appellants and judgment rendered by the first appellate Court deserves to be set aside and judgment of the trial Court may be restored. On the contrary, learned counsel appearing on behalf of the respondent submits that the learned first appellate Court has rightly reversed the finding of the trial Court while discrediting the testimony and evidential value of the document Ex.-2 which is report of the hand-writing expert. The finding is based upon so many pronouncements of law. The reasons for discrediting or not accepting the hand-writing expert's opinion is based upon cogent reasons and as such substantial question of law which was formulated at the time of admission of this appeal with regard to evidential value of document EX.-2 deserves to be answered in favour of the respondent-plaintiff because the first appellate Court has not committed any error for which decree has rightly been passed for eviction from the disputed shop by the appellate Court. I have considered the rival submissions and perused the record; more specifically, for adjudicating upon the substantial question of law mentioned above, 8 statement of the hand-writing expert C.S. Sarvate, D.W.-6. It is very strange that in the cross-examination, no such question was put to the witness by the plaintiff- respondent which shows that signatures were genuine. Only those questions were put which created confusion upon the mind of the witness. In my opinion, on the basis of the said cross-examination, it cannot be said that the opinion given by the hand-writing expert cannot be accepted because in the examination-in-chief the hand-writing expert categorically stated that he is having vast experience and is competent to ascertain the identity of the signature. In my considered opinion, the expert's evidence cannot be discarded in casual manner. Further, with open eyes, the Court sent document Ex.-2 for ascertaining the correctness of the identity of signature on the document, then, the trial Court rightly accepted the report of the hand-writing expert, in which, the expert gave the opinion that the identity of the signature is forged. The learned trial Court has rightly accepted the report of the hand-writing expert since nothing came out in the cross-examination of the hand-writing expert, D.W.-6 C.S. Sarvate before the 9 Court to discredit his testimony and lay aside the opinion of the hand-writing expert. Learned lower appellate Court strangely discredited his testimony and refused to accept the report of the hand-writing expert on completely wrong premises because the lower appellate Court itself proceeded to assess the correctness of the receipt Ex.-2. In this view of the matter, the finding arrived at by the first appellate Court while rejecting the expert's report called by the trial Court is perverse and illegal and has no basis of law. More so, in the discussion of issue No.1 with regard to document Ex.-2, the learned lower appellate Court has assessed the report of the hand-writing expert while discussing his statement also. In my considered opinion, such type of consideration upon the hand-writing expert's report is not required because the plaintiff-respondent himself did not raise any objection or put any question in the cross-examination with regard to any irregularity committed by the hand- writing expert. In the statement of D.W.-6 C.S. Sarvate, hand-writing expert, certain suggestive questions were put in his cross-examination; but, it was nowhere questioned that his report is based upon any 10 technical lapse. In my opinion, therefore, the question formulated by this Court with regard to sanctity of document Ex.-2 deserves to be answered while allowing this second appeal and, as a result of the foregoing discussion, it is found that the learned first appellate Court has wrongly arrived at the finding while not accepting the report of the hand-writing expert because the finding of the learned lower appellate Court is totally perverse and imaginary in view of the fact that no specific question was put to the hand-writing expert C.S. Sarvate, D.W.-6 in his cross-examination to discredit or dispute his evidence in the trial. The testimony of the expert cannot be discarded by the Court of law while discussing its evidential value in perversive manner ignoring the fact that the trial Court itself called report of the hand- writing expert. In this view of the matter, the questions formulated by this Court are hereby answered in affirmative. This appeal is allowed. Impugned judgment and decree dated 21.08.1982 passed by the District Judge, Dungarpur in Civil Appeal No.18/80 is set aside. Judgment and decree dated 16.04.1980 passed by the trial Court is restored. There shall, however, be no order as to costs. (Gopal Krishan Vyas) J. Ojha, a.