1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Laxmi Narain V/s. Dharam Chand & Ors. (S.B. Civil First Appeal No.347/2010) S.B. Civil First Appeal Under Section 96 of Civil Procedure Code Date of Order :: August 18, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Lokesh Sharma for the appellant. Aggrieved by the judgment and decree dated 29.05.2010 passed by the Additional District Judge (Fast Track) Tonk, Rajasthan, whereby the learned Judge has dismissed the suit filed by the appellant-plaintiff, the appellant has challenged the same before this court. In brief, the facts of the case are that the appellant had filed a suit for partition, declaration and permanent injunction before the learned trial Court stating therein that the plaintiff and defendant Nos. 1 & 2 are real brother and sisters and are the legal heirs of late Shri Lalu Ram. It is contended that Shri Lalu Ram left some 2 immovable property i.e., house situated at Mohalla Jatan, Kasba Duni. It was further contended that the plaintiff was in possession of one part of the said property, and the defendant No.1 was in possession of the remaining part. It was also contended that after the death of Lalu Ram, the father of the plaintiff and defendant No.1 divided the house in two shares and half share was handed over to the plaintiff and remaining half share was handed over to the defendant No.1. In the suit it was prayed that the decree of partition may be passed, the defendant be restrained from transferring the possession of half part of the house, and he may be further restrained from interfering with the possession of the appellant. The defendant Nos. 1 to 3 filed their written statement. On the basis of the pleadings, the learned trial Court framed as many as five issues including relief. After hearing all the parties, the learned trial Court while deciding the issues against the plaintiff and in favour of the defendant, dismissed the suit vide judgment dated and decree dated 29th May, 2010. Hence, this appeal before this Court. Mr. Lokesh Sharma, the learned counsel for the appellant, has vehemently contended that the learned 3 Judge has erred in relying upon Exhibit-3 as a genuine document. For, according to the testimony of D.W.5, Renu Kumari, an handwriting expert, the signature of the plaintiff-appellant on Exhibit-3 does not tally with his known signatures. Instead of rejecting the Exhibit-3, on the basis of the testimony of Renu Kumari, the learned Judge has erred in invoking his power under Section 73 of the Evidence Act and has given certain findings which no court could possibly do. Secondly, the learned Judge has erred in rejecting Exhibit-2. According to the appellant, Exhibit-2 was a settlement which was entered between the appellant and his brother, the defendant, in the present case. Therefore, according to the learned counsel, the learned Judge has erred in appreciating the evidence which was readily available on record. Heard the learned counsel for the appellant and perused the impugned order. A bare perusal of the impugned order clearly reveals that on page 9 of the impugned order, the learned Judge has noticed the fact that Renu Kumari, the handwriting expert, had clearly stated in her testimony, 4 that the signature of Dharam Chand, defendant No.1, in Exhibit No.2 and the signature of Laxmi Narain, appellant, in Exhibit No.3 do not correspond to their actual known signatures. The learned Judge had proceeded to appreciate the genuineness of both the documents. Firstly, dealing with the Exhibit-3 on page 11 and 12 of the impugned judgment, the learned Judge has noticed that Renu Kumari was not given a copy of the complete signature made by the appellant in the plaint and the affidavit filed therein, but had been given a copy of the signature in the Vakalatnama and a copy of the signature made by the appellant in his deposition before the Court on 03.07.2007. Furthermore, while invoking the power under Section 73 of the Act, the learned Judge has clearly noticed that while in the plaint and in the affidavit, the plaintiff- appellant has signed his name clearly as “Laxmi Narain Sharma” and has not omitted his last name “Sharma”. Moreover, while signing his deposition before the Court, the appellant has written his last name as “Kshama” and has over written it as “Sharma”. Considering the fact that a person would certainly know the correct spelling of his last name, therefore, there is no valid reason for the appellant 5 to have misspelled his last name initially, and to correct it subsequently. Since, the appellant has not signed his complete name in the other applications filed before the Court, the learned Judge was certainly justified in concluding that the conduct of the appellant is not above board. In fact, it seems that intentionally the appellant is not signing the documents correctly, so as to fool the Court and the handwriting expert. The learned counsel for the appellant has contended that such a finding cannot be given by a Court. The fact remains that the Court is not only concerned with the documents which are produced before it, but is also concerned with the conduct of the party who appears before it. Therefore, in the opinion of this Court, the learned Judge was absolutely justified in analyzing the conduct of the appellant. Moreover, the learned Judge has noticed the fact that Exhibit-3 was proved and was corroborated by the witnesses produced by the defendant. Therefore, notwithstanding the opinion of the handwriting expert, the learned Judge was naturally justified in accepting the authenticity and the genuineness of Exhibit-3. Furthermore, it is a settled principle of law that an opinion of a 6 handwriting expert is not binding upon the Court. It is merely an opinion which can be assessed and can be evaluated on the basis of other evidence which has been brought on record. Therefore, the learned Judge has not committed any error in ignoring the opinion of Renu Kumari in light of overwhelming evidence produced by the defendant. The conclusions drawn by the learned Judge are valid and legal. Dealing with Exhibit-2, the learned Judge has correctly noticed the fact that two of the material witnesses namely, the maternal uncle, Shri Bansi Lal and Anoop Devi, an attesting witness, who allegedly induced the parties to adduce their settlement in writing, have not been produced as a witness. Moreover, the learned Judge has clearly noticed that in Exhibit-2, there are certain adverse remarks. Therefore, the learned Judge has rightly concluded that no one would have signed the document which would contain the adverse remarks against him. Considering the fact that according to the handwriting expert, Exhibit-2 does not contain the genuine signature of the defendant, considering the fact that material witnesses were not produced, who would have deposed about the 7 authenticity and genuineness of the document, the learned Judge was clearly justified in not accepting the said document as the genuine document. Lastly a bare perusal of the impugned order also reveals that the learned Judge has given logical and cogent reasons for dismissing the suit. Hence, there is neither any illegality, nor any perversity in the impugned judgment. Hence, this Court does not find any merit in the first appeal; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.Asopa/-