HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 1330 OF 2001 Mehar Singh. ……………Plaintiff/Appellant. Versus Sri Nattha Singh and another. ….Defendants/Respondents. 25.4.2008 Hon’ble Rajesh Tandon, J. Heard Sri Arvind Vashisth, counsel for the appellant and Sri V.K. Kohli, Sr. Advocate, assisted by Sri I.P. Kohli, counsel for the respondents. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 26.5.2001 passed by the Civil Judge (Senior Division) / XIIIth Additional Sessions Judge, (F.T.C.), Dehradun in Civil Appeal No. 87 of 2000 affirming the judgment and decree dated 28.6.200 passed by the Civil Judge (Junior Division), Dehradun in Original Suit No. 328 of 1995 Mehar Singh Vs. Sri Nattha Singh and another. 3. Present Second Appeal has been admitted on the following substantial question of law: “1. Whether on the facts and circumstances of the case the courts below are legally justified in law in not seeking opinion of an independent expert itself in view of the fact that there is difference of the opinion in the reports of the experts P.W.3 and D.W.2 and the opinion of the independent expert was the essence to decide the issue no. 1 inasmuch as Sri Rithu, the alleged executant had already died? 2 2. Whether on the facts and circumstances of the case the courts below were legally justified in law in relying upon the vague and evasive report of the expert D.W.2 only on the ground that the same is elaborate, though his qualification and eligibility to submit the report as an expert was in dispute? 3. Whether on the facts and circumstances of the case the courts below were legally justified in law in taking hyper technical view while discarding the opinion of the expert Sri B.N. Srivastava (P.W.-3) which clearly establishes that on the alleged sale deed the thumb impression of thue defendant no. 2 exists, only on the ground that the same is not elaborate, though his qualification and eligibility to submit the report as an expert was never in dispute?” 4. Briefly stated, a suit was filed by the plaintiff / appellant being Original Suit No. 328 of 1995 Mehar Singh Vs. Sri Nattha Singh and another praying to the following effect: “v&fookfnr cSukek fn0 „‹@…@ƒ‹ˆŠ bZ0 dks 'kwU; ?kksf"kr djds jn~n fd;k tkos mlesa lfEefyr nf{k.kh dksus dh 'ks"k Hkwfe jDCk 0-05 ,dM+ ij oknh dks izfroknh ls ekfydkuk dCtk fnyk;k tk,A c& oknh dks izfroknhx.k ls eq0 13500 :i;s crkSj gjtkuk fnyk;k tkos] o l& vU; dksbZ vuqrks"k ftls ekuuh; U;k;ky; oknh ds gd esa mfpr le>s izfroknhx.k ls oknh dks fnyk;k tk;sAÞ 5. According to the case of the plaintiff, father of the plaintiff was in possession and was recorded as Bhumidhar in the revenue records for land 0-10 acre in Khasra No. 488/4 situate at Village Badripur, Pargana Parwadoon, Tehsil and District Dehradun and he used to do agriculture work on the said plot. On the said plot in the northern side, there was a mud house of the father of the plaintiff, where he was residing with 3 whole family. The defendant no. 1 wanted to purchase the entire land from the father of the plaintiff, but since father of the plaintiff does not want to sell the land, the defendant no. 1 some how produced the defendant no. 2 as father of the plaintiff in the office of Sub Registrar, Dehradun and got a sale deed executed by the defendant no. 2 on 29.3.1968. The father of the plaintiff was not aware about the sale deed executed in favour of the defendant no. 1 during his life time. His father died on 14.4.1968 and he was under the ill health for the last six months and was on the bed and was also unable to move. At the time of his death, he was 85 years of age. 6. According to the plaintiff, the defendant no. 1 had taken possession of the property in dispute after lapse of one year from the execution of the sale deed, however, the information was never given to the family of the plaintiff regarding the execution of the sale deed. At the time of taking the possession, it was informed by the defendant no. 1 that the said land has been purchased by him. On the request of the plaintiff, the defendant no. 1 on 21.12.1971 executed a sale deed in favour of the plaintiff. The plaintiff has submitted that he is living in the said mud house from the time of his birth and is in possession of the said house from the time of his birth. It has been stated that the land in question is a fertile land, which is adjacent to the land of the defendant no. 1, he earns a sum of Rs. 500/- per annum from the said land by cultivation. The plaintiff gave a notice to the defendant nos. 1 and 2, but the defendant no. 1 did not accept the aforesaid fact and defendant no. 2 did not give any answer to that notice. 7. The defendant no. 1 has contested the suit by filing a written statement, wherein the existence of the mud house of 4 the plaintiff on the land of 0.05 acre and purchase of the same and selling of the land in favour of the plaintiff has been admitted. It has been stated that defendant no. 1 wanted to purchase the land in dispute from the father of the plaintiff Sri Rithu, for which he became ready and he sold the land in dispute for a sale consideration of Rs.300/- on 29.3.1968 and gave possession of the land in dispute. On 29.3.1968, the defendant and the father of the plaintiff both had gone to the Court. They told each and every thing to one Baldev Raj Kapoor the writer, who compelled them to purchase the Stamps and prepared the documents for sale deed and read it over. Both the parties accepted the contents mentioned in the sale deed and further he read over the same in presence of two witnesses namely Sri Bishambardutt and Ishwar Dass Sharma, which was accepted by Mr. Rithu (father of the plaintiff) and impressed his thumb and got it registered in the office of Sub Registrar, Dehradun. It was denied that defendant no. 2 was produced in place of the father of the plaintiff. The defendant no. 2 is the husband of the sister of the plaintiff and due to some malice between them, the plaintiff has filed the suit. It has further been stated that at the time of execution of the disputed sale deed, Sri Rithu (father of the plaintiff) was not ill. At that time, he was seventy years of age. After execution of the said sale deed, he died within a period of one month. Since the relationship between the plaintiff and the defendants were good, therefore, on his request, on 21.12.1971 he gave some portion of the land (i.e. 0.05 acre) and possession of the said land to the plaintiff. It has been further stated that from the land in dispute, only Rs. 100/- can be earned in place of Rs. 500/- per annum. It has further been stated that except the land of 0.05 acre, the plaintiff is not owner of any other land. It has further been stated that the suit has been filed on wrong facts. It has been 5 stated that the defendant no. 2 was never under the influence of the defendant no. 1, thus, there is no occasion to mount pressure on him. He has stated that he had given the reply to the notice of the plaintiff. 8. Defendant No. 2 has also filed a written statement Paper No. 19 Ka 1 where most of the contents of the suit has been denied. It has been stated in the written statement that he is the husband of his real sister. He has stated that prior to the execution of the sale deed, he used to do work of labour in the house of the defendant no. 1. The defendant no. 2 demanded a sum of Rs. 200/- from the defendant no. 1, but the defendant no. 1 asked him to go to the Kachehri with him for registering and execution of a deed in this regard. As the defendant no. 2 was illiterate he accepted the contents read over to him and put his thumb impression on some of the stamps. The defendant no. 1 also produced him before the Sub Registrar Dehradun and got his thumb impression on some documents. When they came out, the defendant no. 1 gave him a sum of Rs. 200/- and instructed him to go to house. No official of the Sub Registrar office asked him about his presence. In the year, 1973 when the defendant no. 2 fulfilled all his dues towards the defendant no. 1, he left the job of the defendant no. 2. At that time, the defendant no. 1 threatened him that in the year, 1968, the deed which had been executed in the Kachehri Dehradun was a sale deed, where he had been produced as seller in place of Rithu. The defendant no. 1 also threatened that this fact should remain secret. In the year, 1995, his Sarhu Lalta Prasad was staying in his house and some how he gave the information about the sale deed in question. 6 9. The defendant no. 1 also produced an additional written statement Paper No. 44 Ka, wherein it has been stated that the sale deed in question has not been executed by playing fraud. He has stated that he is in possession of 0.05 acre land of the land in question and his name is recorded in the records of the Nagar Palika. He has further stated that he is in possession of the land in dispute for the last 12 years without any obstructions, therefore, the plaintiff cannot claim possession of the land in dispute. 10. Plaintiff has filed a replication stating therein that the defendant no. 1 has obtained possession by way of a sale deed by playing fraud. 11. On the pleadings of the parties, the trial Court has framed the following issues: “1- D;k izfroknh la01 1 us izfrooknh la0 2 ls izfroknh ua0 2 dks oknh dk firk n’kkZrs gq, xyr :i ls iz’uxr fodz; i= fn0 29-3-68 dks fu"ikfnr djk fy;k tSlk fd okn i= o izfroknh ua0 2 ds izfrokn i= 19 d esa vfHkdfFkr gS\ 2- D;k okn dk ewY;kadu de fd;k x;k gS rFkk iznRr U;k;’kqYd vi;kZIr gS\ 3- D;k okn dky ckf/kr gS\ 4- D;k ;g okn iks"k.kh; ugha gS\ 5- D;k ;g okn foa/ku ,oa ekSu lgefr ds fl)kUr ls ckf/kr gS\ 6- oknh fdl vuqrks"k dks ikus dk vf/kdkjh gS\ 7- D;k oknh fookfnr tk;nkn dk dCtk ikus dk gdnkj gS\ 8- D;k izfroknh foijhr HkqfDr }kjk viuh fefYd;r bl tk;nkn ij iw.kZ dj pqdk gS\ 7 9- D;k izfroknh cSukesa ,oa foijhr HkqfDr nksuksa ds vk/kkj ij viuh fefYd;r lkFk lkFk Dyse dj ldrk gS ;fn gkWa rks izHkko\ 10- D;k bl U;k;ky; dks okn Jo.kkf/kdkj dk {ks=kf/kdkj ugha gS\ 11. On behalf of the plaintiff, per list 7 Ga documents have been filed which are attached as Exhibit 1. Further the plaintiff has filed Paper No. 9 Ka A.D. Exhibit – 2, Paper No. 10 Ga copy of the notice, Paper No. 11 Ka A.D. Exhibit – 3, Paper No. 13 Ka A.D., which is public document and filed as Exhibit – 4, Paper No. 34 Ka and 36 Ka progress report and paper No. 59 Ka report of Hand Righting Finger Print Expert. Towards, the oral evidence, Mehar Singh, Lalta Prasad and one B.N. Srivastava have been examined as P.W. 1, P.W.2 and P.W.3 respectively. 12. Towards the documentary evidence, the defendant no. 1 has filed original sale deed Paper No. 23 Ka Exhibit-4, Certified copy Paper No. 29 Ka and Certified copy Paper No. 30 Ka and copy of the notice 25 Ka, Notice 26 Ka and report of the Finger Print Expert Paper No. 62 Ka, which are enclosed as Exhibit –5, Paper No. 24 Ka Exhibit –1, Paper No. 25 Ka Exhibit-2, Paper No. 26 Ka – Exhibit – 3. Towards the oral evidence, Nattha Singh and V.K. Suveja have been examined as D.W.1 and D.W.2 respectively. 13. While deciding the issue no. 1 as to whether the defendant no. 1 through defendant no. 2 by producing him as father of the plaintiff got a sale deed dated 29.3.1968 executed in his favour as has been mentioned in the suit and the written statement of the defendant no. 2 Paper No. 19 Ka, the trial Court has recorded the finding to the following effect: 8 “mDr foospuk rFkk i=koyh ij miyC/k lk{; ds vk/kkj ij eSa bl fu"d"kZ ij igWaqprk gWwa fd fookfnr vaxwBs vkSj Lisflesu vaxwBs ,d gh O;fDr ds izrhr ugha gksrs gSaA oknh lk{kh ih0MCyw0&1 vkSj ih0MCyw0&2 ds c;kuksa esa ijLij fHkUurk gS rFkk oknh lk{kh ih0MCyw0&3 dh jk; iw.kZ :i ls foLr`r vk[;k o dkj.k iznf’kZr u gksus ds dkj.k rFkk izfroknh lk{kh Mh0MCyw0&2 dh fjiksVZ dkj.k lfgr fo’oluh; izrhr gksus ds dkj.k oknh ds }kjk Lo;a izfroknh ua0 1 ls fodz; i= i'pkrorhZ dze esa fookfnr lEifRr ds vk/ks Hkkx dks fu"ikfnr djkus rFkk mDr foospuk ds vk/kkj ij eSa bl fu"d"kZ ij igWaqprk gwaW fd izfroknh lk{kh ua0 1 rFkk izfroknh lk{kh ua 2 dks oknh dk firk iznf’kZr djrs gq, 29-3-68 dks cSukek fu"ikfnr ugha djk;k vkSj fodz; i= dh tkudkjh ih0MCyw0&1 vius lk{; izfr ijh{kk esa 1969 esa izfroknh ua0 1 ds dgus ij fo’okl dj fy;k Fkk dgrs gSaA vkSj dCtk izfroknh ua0 1 dks ------ls gSA ckn esa dCtk vUrj.k izfroknh dks muds vUrj.k dkxt la0 24 x ds vk/kkj ij gqvk gS lHkh dkj.k nsrs gSa fd izfroknh lk{kh ua0 1 us izfroknh ua0 2 ls izfroknh ua0&2 dks oknh dk firk iznf’kZr djrs gq, xyr :i ls fodz; i= 29-3-68 dk fu"iknu ugha djk;kA rnkuqlkj okn fcUnq ua01 dk fuLrkj.k fd;k tkrk gSAÞ 14. While deciding the issue no. 2 as to whether the suit has been valued lessor and the court fee paid is insufficient, since the liability to prove this fact was on the defendant no.1, but he did not give any logic and force to this point, therefore, the trial Court has decided this issue in negative against the defendant no.1. 15. While deciding the issue no. 3 as to whether the suit is time barred, the trial Court has recorded a finding that the suit is time barred as the plaintiff has filed this suit after expiry 9 of limitation period of three years. This issue has been decided in affirmative in favour of the defendant no.1. 16. While deciding the issue no. 4 as to whether the suit is not maintainable, since the defendant no. 1 has neither produced any evidence nor has given any logic in this regard, therefore, the trial Court has decided this issue in negative. 17. While deciding the issue no. 5 as to whether the suit is barred by the principles of estoppel and acquiescence, the trial Court has recorded a finding that the plaintiff has admitted that the defendant no. 1 is in possession of the land since 1969, therefore, the suit is barred by principles of estoppel and acquiescence. 18. While deciding the issue no. 7 as to whether the plaintiff is entitled to get possession of the property in dispute, the trial Court has recorded a finding that the plaintiff is not entitled to get the possession of the property in dispute. This issue has been decided in negative against the plaintiff. 19. While deciding the issues no. 8 and 9 as to whether the defendant no. 1 has proved his ownership on the property in dispute by adverse possession and further as to whether the defendant can claim his ownership through sale deed and adverse possession together, the trial Court has recorded a finding to the following effect: “okn fcUnq ua0 1] 3 o 5 esa fu"d"kZ ds vk/kkj ij dCtk eq[kkyikuk dk rF;k lkfcr ugha gksrk gS D;ksafd dCtk cSukesa ds vk/kkj ij izfroknh ua0 1 us izkIr fd;k gSA blfy, tgka fefYd;r oknh dh tgka lkfcr gks ogka dCtk eq[kkyikuk lkfcr ugha gksrk gS ftl dkj.k ls okn fcUnq 10 ua0 8 o 9 izfroknh ds fo:) udkjkRed :i ls r; fd;k tkrk gSAÞ 20. While deciding the issue no. 10 as to whether the Court has no jurisdiction to hear the suit, since the defendants have not filed any document or evidence in order to prove this fact, this issue has been decided in negative against the defendants. 21. While deciding the issue no. 6 as to whether the plaintiff is entitled to get any relief, the trial Court has recorded a finding that the ownership of the defendant no. 1 is proved by the valid sale deed and is in possession of the property in dispute on the basis of the sale deed. It has further been recorded that in view of the aforesaid situation, property which is in the ownership of the defendant no. 1 and the possession of the same is also of the defendant, no compensation can be claimed from the defendants. This issue has been decided against the plaintiff. 22. The trial Court has dismissed the suit on 28.6.2000 with cost. 23. Aggrieved by the said judgment and decree, the plaintiff preferred an appeal being Civil Appeal No. 87 of 2000. The appellate Court has also dismissed the appeal and affirmed the findings recorded by the trial Court. Relevant portion of the finding recorded by the appellate Court is to the following effect: “fookfnr fodz; foys[k ds fu"ikfnr gksus ds ckn izR;qRrjnkrk@izfroknh la0 1 us ukekarj.k dk;Zokgh fd;k vkSj fookfnr lEifRr ij mldk uke ntZ gks x;k vkSj mlus fookfnr Hkwfe ij fookfnr cSukes ds vk/kkj ij dCtk 11 izkIr dj fy;k ftldh tkudkjh vihykFkhZ @ oknh dks Fkh vkSj mlus fookfnr Hkwfe ds vk/ks Hkkx dk cSukek izR;qRrjnkrk@izfroknh la0 1 ls fnukad 19-12-71 dks fu"ikfnr djk;k vkSj o"kZ 1995 rd bl fookfnr fodz; foys[k dks lgh ekurk gS vihykFkhZ @ oknh ds vuqlkj Jh yyrk izlkn us mls fnukad 15-7-95 dks fookfnr foys[k Jh gfjjke }kjk fu"ikfnr fd;k tkuk crk;kA ih0MCyw0 2 Jh yyrkizlkn us vius c;ku esas ,slk dksbZ dFku ugha fd;k gS fd mlus fnukad 15-7-95 dks fookfnr fodz; foys[k Jh gfjjke }kjk fu"ikfnr fd;k tkuk crk;kA mlus dsoy ;g dgk gS fd Jh gfjjke ds ?kj og x;k gqvk FkkA cjlkr dk le; Fkk Jh gfjjke us crk;k fd mlus ,d ?kksVkyk gks x;k gSA Mh0MCyw0&1 izfroknh lk{kh la0 2 dk lk{kh½ Jh gjjke us Jh yyrkizlkn dk fookfnr cSukek fy[ks tkus ds 4&5 lky ckn gh mDr rF; crk;k tkuk dgk gSA Jh yyrk izlkn ftuds }kjk o"kZ 1995 esa tkudkjh fn;k tkuk vihykFkhZ@ oknh }kjk dgk x;k gS us vius c;ku esa ,slk dFku ugha fd;k gS ftlls vihykFkhZ oknh dk ;g dFku fo’okl ;ksX; ugha jg tkrk gS fd Jh yyrkizlkn us mls fnukad 15-7-95 dks fookfnr fodz; foys[k Jh gfjjke }kjk fy[kk tkuk crk;kA vihykFkhZ@ oknh dks fookfnr fodz; foys[k dh tkudkjh izkjEHk ls gh FkhA og mlds jn~n fd;s tkus gsrq rhu o"kZ ds Hkhrj gh okn izLrqr dj ldrk FkkA okn rhu o"kZ ds dkQh ckn izLrqr fd;k x;k gSA vr% fo}ku voj U;k;ky; }kjk lgh fu"d"kZ fudkyk x;k gS fd okn dky ckf/kr gSA fdlh i{k }kjk vU; fdlh fcUnq ij cy ugha fn;k x;kA mi;qZDr foospuk ls ;g Li"V gksrk gS fd fo}ku voj U;k;ky; }kjk ifjr fu.kZ; o fMdzh esa fdlh izdkj dk gLr{ksi dh vko’;drk ugha gSA vihy Lohdkj fd;s tkus ;ksX; ugha gSAÞ 12 24. With regard to the expert of finger print, the appellate Court has recorded a finding that the Court cannot reach a conclusion that on the sale deed, there is thumb impression of defendant no. 2 or not. Further the appellate Court has taken into consideration judgment of Lalit Popli Vs. Union of India 1998 (47) D.R.J., wherein it has been observed that the report of the hand writing expert is not a basis to reach on a conclusion. In the aforesaid case, the Delhi High Court has held that Vir Kumar Sakuja is not entitled to give report regarding the finger print. In the case of Surendra Kumar & Ors. Vs., State 42, 1990 Law Times (1), the High Court of Delhi has admitted his proof holding him to be an experienced finger print expert. Since the judgment of Lalit Popli (supra) has been given by the single judge and another judgment of Surendra Kumar & Ors. Vs. State has been given by the Division Bench, therefore, the appellate Court has held that it will be proper to abide by the case law of the Division Bench. The report submitted by Sri B.N. Srivastava shows that the thumb impressions on the sale deed tally with the thumb impression of the defendant no. 2, but the report submitted by Sri B.K. Sakuja shows that both the thumb impressions are different. The report of Mr. B.N. Srivastava is not a detailed report and the report of Mr. B.K. Sakuja is a detailed report, therefore, the appellate Court has observed that the trial Court has not done any error by accepting the report submitted by Mr. B.K. Sakuja. The appellate Court has further observed that it is necessary to examine the evidence for reaching on a conclusion as to whether the sale deed bears the thumb impression of defendant no. 2 or not. P.W.1 Sri Mehar Singh / plaintiff has stated in his statement that on 15.7.1995, his sister’s husband came to his house, who made him aware that the plot in dispute has been purchased from his younger sister’s husband Hari Singh 13 (defendant No. 2) and on the sale deed in question, there are thumb impressions of his sister’s husband Hari Singh and not of his father. In the cross examination, Mehar Singh told when he had asked from Hari Singh regarding the thumb impressions on the sale deed in question, he told that he could not say as to the document bears his thumb impressions or not. He also told that he had shown the thumb impression on the sale deed in question to Hari Ram and Hari Ram had stated that those impressions were of him. The appellate Court has further recorded a finding that the sale deed in question was in the possession of defendant no. 1, therefore, there was no occasion for the plaintiff to show the sale deed in question to Hari Ram. D.W.1 Hari Ram has not stated in his statement that the sale deed in question bears his thumb impressions. He has stated in his cross examination that Nattha Singh did not get any sale deed by him. The appellate Court has recorded the finding that if the defendant no. 2 would have put his thumb impression on the sale deed in question, he would have told the plaintiff about his putting thumb impression on the sale deed in question, he must have stated in his statement that the sale deed in question bears his own thumb impression. According to the plaintiff P.W.2 Lalta Prasad had told him about putting of the thumb impression of Sri Hari Ram in place of Rithu on the sale deed. P.W.2 Lalta Prasad stated in his cross examination that on printed papers, the defendant no. 1 had taken his thumb impression in the year, 1995. The sale deed in question was of the year, 1968 and according to P.W.2 Lalta Prasad, on which document Hari Ram had put his thumb impression was of the year, 1995, therefore, the same cannot be said to be taken on the sale deed. 14 25. According to the plaintiff for