IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI
A.S.No.260 of 2007
A.Kuppusamy ... Appellant
vs.
... Respondent
S.Shankar Vadivel
Prayer: Appeals filed under Section 96 of Civil Procedure Code against the Judgment made in O.S.No.25/2004 dated 14.10.2006 on the file of District Court, Tiruvannamalai.
For Appellant : Mr.S.V.Jayaraman,Sr.Counsel
for Mr.P.Mathivanan
For Respondent : Mr.T.R.Rajagopalan,Sr.Counsel
for Mr.T.R.Rajaraman and
Mr.D.Ravichadnran
JUDGMENT
R.BANUMATHI,J
This Appeal arises out of the Judgment and decree dated 14.10.2006 in O.S.No.25 of 2004 on the file of District Court, Tiruvannamalai decreeing Plaintiff's suit for Specific Performance and directing the Defendant to execute the sale deed in respect of the suit properties and also directing him to deliver vacant possession of 13 tiled shops. Unsuccessful Defendant is the Appellant. For convenience, the parties are referred as per their original rank in the suit.
2. Case of Plaintiff is that suit property relates to T.S.No.1600/1 measuring an extent of 5131 sq. ft.; T.S.No.1600/2 measuring an extent of 326 sq. ft. and T.S.No.1600 measuring an extent of 139 sq.ft. situated at 1st Ward, 23rd block at Car street, Tiruvannamalai town. The suit properties originally belonged to Plaintiff's father Subramania Mudaliar. Plaintiff's father Subramania Mudaliar borrowed a sum of Rs.18,600/- from the Defendant's father Annamalai Mudaliar under promissory notes. Defendant's father Annamalai Mudaliar filed suit in O.S.No.54/1975 for recovery of money as against the father of Plaintiff and the same was decreed on 08.09.1975. Defendant's father filed Execution Proceedings in E.P.No.35/1976 to attach the suit property and brought the same to Court auction to realise the decree amount. After a long drawn battle of litigations and number of proceedings, Defendant purchased the suit property in the Court auction sale on 08.2.1978 for a sum of Rs.25,005/-. According to the Plaintiff, Defendant took only symbolic delivery of the suit property through the process of the Court in R.E.A.No.14/1985 on the file of Sub-Court, Tiruvannamalai.
3. Further case of Plaintiff is that Plaintiff executed lease deed [Ex.B11] in favour of Defendant on 23.09.1997 and agreed to pay a sum of Rs.1000/- per month as rent for the house. On the very same day 23.09.1997, Plaintiff has executed another lease deed [Ex.B12] in favour of Defendant and agreed to pay Rs.500/- per month for the shop. The other tenants who are occupying thirteen shops have separately executed lease deeds in favour of Defendant. In the month of February 2000, for the house and shop the aggregate monthly rent was enhanced to Rs.4000/- from Rs.1500/- per month.
4. Further case of Plaintiff is that Defendant agreed to sell the suit property for a sum of Rs.40,00,000/- to the Plaintiff. On 13.03.2002, Plaintiff and Defendant entered into an agreement of sale [Ex.A8] in respect of the suit property and thereby Defendant agreed to sell the suit property to the Plaintiff and received a sum of Rs.20,00,000/- as advance from the Plaintiff on 13.3.2002. As per the terms of Ex.A8-agreement of sale, Plaintiff should pay balance sale consideration of Rs.20,00,000/- to the Defendant on or before 12.09.2002 and on receiving the same, Defendant should execute the sale deed. Ex.A8-agreement was written by G.Ramananathan [PW2] as per the instructions of the Plaintiff. According to Plaintiff, he has always been ready and willing to pay the balance sale consideration of Rs.20,00,000/- and get the sale deed executed. Defendant filed Eviction Petition in H.R.C.O.P.No.12/2002 on the file of Rent Controller, Tiruvannamalai seeking eviction of Plaintiff in respect of Shop bearing Door No.1-C and the residential house respectively. Plaintiff entered appearance in the said eviction petition and taking number of adjournments for filing counter. For filing counter as last chance, the matter was adjourned to 30.03.2003. Plaintiff resisted the eviction petition contending that in view of the oral assurance given by the Defendant that Plaintiff need not pay rent from the date of sale agreement in respect of the suit property. Further case of Plaintiff is that Defendant stated that he would collect the rent from thirteen other tenants who are occupying thirteen shops till the Defendant executes the sale deed relating to the suit property in favour of Plaintiff and thereafter, Plaintiff will be entitled to receive the rent from the said thirteen tenants.
5. Further case of Plaintiff is that he has paid another sum of Rs.10,00,000/- on 01.09.2002 as further advance to the Defendant and Defendant made an endorsement on the reverse of Ex.A8-agreement of sale. In the said endorsement, Defendant extended the time from 12.09.2002 till 11.04.2003 for performing the contract. Case of Plaintiff is that he is always ready and willing to perform his part of contract, but the Defendant refused to receive the balance sale consideration of Rs.10,00,000/- and to execute the sale deed in respect of the suit property in favour of Plaintiff. Plaintiff issued legal notice [Ex.A11] calling upon the Defendant to receive balance sale sale consideration of Rs.10,00,000/- from the Plaintiff and execute the sale deed in favour of Plaintiff in respect of the suit property. Defendant sent Ex.A13 reply [31.3.2003] seeking ten days time for issuing a detailed reply notice. Defendant sent Ex.A14-detailed reply [09.04.2003]. Thereafter, Plaintiff had filed the suit for Specific Performance.
6. Referring to the earlier suit O.S.No.54/1975 on the file of Sub-Court, Tiruvannamalai [Ex.B3] filed by the Defendant's father Annamalai Mudaliar against the Plaintiff's father Subramania Mudaliar for recovery of money and decreeing of the said suit on 08.09.1975 for Rs.28,632/- and various other proceedings in the Execution Petition Defendant has filed the written statement. In the Court auction, Defendant was a successful bidder for Rs.25,005/- besides three encumbrances of total principal amount of Rs.60,000/- with interest. Defendant has referred to number of applications filed by the Plaintiff's father in the Execution Petition and also number of other suits filed by Plaintiff's brother and junior paternal uncle G.Ramanathan as elaborated infra.
7. Case of Defendant is that on 23.09.1997, he took delivery of the suit property and delivery was recorded on 29.09.1997 wherein the Judgment Debtor and his brother Ramanathan, Krishnamurthy and sons of Judgment Debtor including the Plaintiff have attested the said delivery receipt. As per delivery receipt, Court Amin has delivered the suit property to Defendant. Under Exs.B11 and B12-lease agreements [23.09.1997], Plaintiff who is the son of Judgment Debtor entered into tenancy agreement with the Defendant agreeing to pay monthly rent of Rs.1000/- for house bearing Door No.1, Car street and taken on lease the shop bearing no.1-C, Kosamada street on a monthly rent of Rs.500/-. According to Defendant, rent of the house was enhanced to Rs.4000/- from Rs.1000/- per month from 01.08.2000 and rent of the shop was not enhanced. Since Plaintiff committed wilful default in payment of rent in respect of the shop, Defendant/Auction purchaser issued legal notice dated 16.09.2002 [Ex.B13] seeking eviction on the ground of wilful default in payment of rent. On the very same day i.e. 16.09.2002, Defendant/Auction purchaser had issued Ex.B14 legal notice seeking eviction of the Plaintiff on the ground of wilful default in payment of rent and also on the ground of bonafide requirement of his son's own use and occupation. For which the Plaintiff has not issued any reply. Hence, Defendant filed eviction petitions in R.C.O.P.Nos.10 & 12/2002 [Exs.B15 & B16]. Plaintiff has taken many adjournments for filing counter in both the eviction petitions and the matter was adjourned to 30.03.2003 as last chance for filing counter.
8. According to Defendant, pre-suit notice received by the Defendant was suitably replied. Defendant stoutly denies having entered into any agreement of sale and the suit agreement is a forged one. Defendant has denied the execution of Ex.A8-sale agreement and the alleged endorsement and denied receipt of any advance. According to Defendant, Ex.A8-agreement of sale is a forged document and Plaintiff has no means to pay such huge amount and equally, the alleged payment of Rs.10,00,000/- on 01.09.2002 and Plaintiff has created a forged agreement with the help of his junior paternal uncle Ramanathan and his associates. The alleged scribe Ramanathan is none other than the brother of Subramania Mudaliar [Judgment Debtor as well as father of Plaintiff]. Defendant averred that plaintiff emboldened to fabricate the alleged agreement of sale and with a view to give a colour of reality the Plaintiff has created the endorsement dated 01.09.2002 with the help of same set of attestors. Defendant did not receive a sum of Rs.10,00,000/- from the Plaintiff and the alleged endorsement is also fabricated. According to Defendant, Defendant used to issue rental receipts for the house and shop to the Plaintiff who is the tenant under him. The Plaintiff has got number of such receipts containing the full signature of the Defendant and Plaintiff has forged the signature of the Defendant with the help of henchmen. According to Defendant, he has issued a detailed reply notice [Ex.A.13] on 16.09.2002 making it clear that the suit agreement is a forged document created by the Plaintiff. Defendant has also filed Memo in the trial Court to inspect the suit agreement [Ex.A8] and upon perusal of the document, Defendant learnt that suit agreement [Ex.A8] is a rank forgery and the signature in all the pages of the agreement and endorsement are forged signatures of the Defendant. Plaintiff has not come to the Court with clean hands and Plaintiff is not entitled to the equitable relief of Specific Performance.
9. On the above pleadings, trial Court framed four Issues. Before the trial Court, Plaintiff-Shankara Vadivel examined himself as P.W.1. Ramanathan, who is the scribe of Ex.A8 and junior paternal uncle of Plaintiff was examined as PW2. One Anbazhagan and Ravi, who are attestors to Ex.A8, were examined as PWs.3 and 4. Exs.A1 to A54 were marked. Defendant-Kuppuswamy examined himself as D.W.1. Kirubakaran, handwriting expert of Tamil Nadu Forensic Science Laboratory was examined as D.W.2. Exs.B1 to B23 were marked.
10. Upon consideration of oral and documentary evidence, trial Court held that evidence of PW2-scribe is credible and acceptable and his evidence is substantiated by the evidence of Pws.3 and 4. Trial Court took the view that opinion of DW2-hand writing expert that the signatures in Ex.A8-agreement is the imitation of Defendant's signature does not stand on a higher footing when compared with the evidence of Pws.2 to 4. Rejecting the defence version, trial Court held that Defendant had not proved and established that Ex.A8 is a forged document. Holding that the signatures of the Defendant in Ex.A8 and the endorsement thereon are the signatures of Defendants, trial Court held that Defendant is bound to execute the sale deed, trial Court decreed the suit for Specific Performance directing the Plaintiff to deposit a sum of Rs.10,00,000/- (balance sale consideration) and granted decree for Specific Performance and also directed the Defendant to delivery vacant possession of 13 shops. Challenging the findings of the trial Court, unsuccessful Defendant has filed the Appeal.
11. Mr.S.V.Jayaraman, learned Senior counsel appearing for Appellant-Defendant interalia contended that the trial Court failed to take note of the conduct of Plaintiff preceding the suit and inspite of issuance of notices - Exs.B.13 and B.14 (16.9.2002) prior to filing of R.C.O.Ps, the Plaintiff had not chosen to issue any reply. It was submitted that if really the sale agreement - Ex.A.8 (13.3.2002) was in existence and available on the date of notice, the normal conduct of Plaintiff would have been to project Ex.A.8 at the earliest point of time and the non-issuance of any reply militates against the case of the Plaintiff. It was further submitted that the Defendant having taken the plea of forgery had examined the handwriting expert - D.W.2 to establish that the signature is forged. The trial Court fell in error in brushing aside Ex.B.17 (14.3.2006) report of the handwriting expert and the trial Court erred in venturing upon comparison of disputed signature in Ex.A.8 to brush aside Ex.B.17. It was further submitted that merely on suspicion that the Defendant's brother's relation might have influenced the expert in issuing their report, the trial Court erred in rejecting Ex.B.17. Drawing our attention to the income tax returns of the Plaintiff, the learned Senior Counsel submitted that the plaintiff has not convincingly established his capacity to pay such a huge amount of Rs.40 lakhs towards sale consideration and while so the trial Court erred in holding that the Plaintiff had sufficient means to pay the huge sum of Rs.40,00,000/-. Drawing our attention to the number of earlier proceedings, learned Senior Counsel has submitted that the Plaintiff has fabricated the suit agreement with the help of his junior paternal uncle and close friends and the trial court erred in brushing aside the conduct of the Plaintiff and the various circumstances saying that the Plaintiff has come forward with falsity.
12. Learned Senior Counsel appearing for Respondent/Plaintiff submitted that the suit property, being the family property of plaintiff, in all probability, the Plaintiff wanted to retain the property, which would strengthen Ex.A.8 agreement of sale. It was further contended that in the Execution Proceedings, the Defendant had taken only symbolic possession and no actual physical possession was handed over to the Defendant. It was further submitted that the Plaintiff had adduced convincing evidence to show that he has sold bus route along with bus and from out of which the Plaintiff has paid the sale consideration and once the payment of consideration is proved, the other factors recede to the background. Taking us through the judgment of the trial Court, the learned Senior Counsel submitted that the trial Court had elaborately gone into evidence and rightly held that the Plaintiff is entitled to the relief of specific performance and the judgment of the trial Court is based upon the evidence and material on record warranting no interference.
13. Upon consideration of the rival contentions of the parties, evidence and material on record and judgment of the trial Court, the following points arise for consideration:-
(1) Whether Ex.A8-agreement of sale and the endorsement thereon are proved to be true and genuine?
(2) Whether the signatures in Ex.A8-agreement and the endorsement thereon are forged as contended by the Appellant-Defendant?
(3) Whether the trial Court was justified in rejecting the defence plea that the signatures in Ex.A8-agreement of sale and endorsement thereon are forged?
(4) Whether the trial Court was right in decreeing the suit for Specific Performance and ordering delivery of possession of 13 shops?
(5) To what relief the parties are entitled to?
14. Point Nos.1 to 5:- Litigation between the parties has a chequered career. The case on hand is a typical case as to how the suit on promissory notes and the execution proceedings of attaching the property could lead to proliferation of litigation. In order to appreciate the stand of the parties, we may usefully refer to the various litigations between the parties which stretched over for nearly four decades. Defendant's father [Annamalai Mudaliar] filed O.S.No.54/1975 on the file of Sub-Court, Tiruvannamalai for recovery of money from the Plaintiff's father [Subramania Mudaliar] and the said suit was decreed on 08.09.1975 for a sum of Rs.28,632/- with subsequent interest and costs[Ex.B3]. Defendant's father [Annamalai Mudaliar] filed E.P.No.35/1976 to attach the suit property and brought to Court auction to realise the decree amount. After number of interlocutory applications in the Execution Petition, which also led to filing of revision, the property was brought for auction. In the Court auction, the Defendant was the successful bidder for Rs.25,005/- besides three encumbrances of the total principal amount of Rs.60,000/- with interest.
15. Plaintiff's father filed application E.A.No.103 of 1978 under Order 21 Rule 90 C.P.C. To set aside the court auction sale and the same was dismissed on 25.10.1978 on the ground that the security furnished by him was insufficient. Plaintiff's father preferred a revision in C.R.P.No.3217/1978 and the same was dismissed on 05.03.1979. Again, the Plaintiff's father filed another application - E.A.No.51/1980 for furnishing additional security and the same was dismissed on 25.07.1980. On 5.8.1980, the Court confirmed the auction sale and the sale certificate was issued to the Defendant/ Auction purchaser [Ex.A50]. The Plaintiff's father also filed application in R.E.A.No.143/1981 under Section 47 C.P.C. to set aside the court auction sale.
16. Apart from the number of applications filed in the Execution proceedings, others also filed suits in respect of suit property. The tenant - V.Krishnan filed suit - O.S.No.1494/1980 for permanent injunction and the said suit came to be dismissed on 19.7.1994 (Ex.B.7). The Judgment Debtor's son - Chandra Mohan i.e., brother of Plaintiff filed suit O.S.No.90 of 1985 claiming partition and also obtained order of injunction against the Defendant/Auction purchaser and the said Chandra Mohan withdrew the suit on 27.10.1987. Again on, 28.4.1988, another brother of Plaintiff son of Judgment debtor viz., Sugumar filed O.S.No.263/1988 on the file of Sub-Court, Tiruvannamalai for partition and the said suit came to be dismissed on 4.10.1989 (Ex.B.6).
17. On 10.8.1990, there was also other proceedings in E.A.No.15/1985 to set aside the court auction sale, which again led to the filing of Appeal in C.M.A.No.994/1990 and C.R.P.No.3217 of 1992. Crossing through several obstacles and hurdles, on 23.09.1997 Defendant took delivery of the suit property and delivery was recorded on 29.09.1997 [Ex.B1 and B10], wherein the judgment debtor and his brother Ramanatha Mudaliar (P.W.2) and sons of Judgment Debtor including the Plaintiff have attested the delivery receipt. The Court Amin effected actual delivery of the suit property to the Defendant on 23.9.1997.
18. On the same date i.e., on 23.9.1997, the Plaintiff and his son and the judgment debtor entered into tenancy agreement with the Defendant (Exs.B.11 and B.12) under which the plaintiff has taken on lease the house property bearing Door No.1, Car Street on a monthly rent of Rs.1,000/- and taken on lease a shop bearing Door No.1/C, Kosamada street on a monthly rent of Rs.500/-. Brother G.Ramanatha Mudaliar (P.W.2) has filed the suit for partition and possession of his 1/3rd share in O.S.No.210 of 1997, the rent for the house was enhanced from Rs.1,000/- to Rs.4,000/- from 1.8.2000. Rent of the shop was not enhanced. Since the plaintiff had committed wilful default in payment of rent in respect of the house and the shop, the Defendant issued legal notices dated 16.9.2002 (Ex.B.13 and B.14) seeking eviction on the ground of wilful default. The Plaintiff has not issued any reply to Exs.B.13 and B.14 and thereafter the Defendant filed eviction petitions R.C.O.P.No.10 of 2002 (Ex.B.15) and R.C.O.P.No.12 of 2002 in respect of house (Ex.B.16). The Plaintiff/tenant has been taking number of adjournments for filing counter in both the eviction petitions and ultimately the eviction petitions were adjourned to 30.3.2003 as a last chance for filing counters. It is at that time, Plaintiff/tenant had issued pre-suit notice dated 22.3.2003 setting up the case of agreement of sale and calling upon the Defendant to execute the sale deed. It is in this backdrop of several rounds of earlier litigations, the case of Plaintiff that the Defendant has entered into an agreement of sale with him has to be analysed.
19. In his evidence, P.W.1 stated that the Defendant had entered into Ex.A.2 - agreement of sale on 13.3.2002 and paid advance of Rs.20,00,000/-agreeing to sell the suit property for Rs.40,00,000/- and paid advance of Rs.20,00,000/-. In his evidence, P.W.1 has stated that Defendant had paid further advance of Rs.10,00,000/- on 1.9.2002 and made Ex.A.10 endorsement. The Plaintiff had filed eviction petition in November 2002. Prior to filing of the eviction petition, Defendant issued Exs.B.13 and B.14 notices (dated 16.9.2002) for which the Plaintiff had not issued any reply. In the backdrop of several rounds of litigations between the parties, and the fact that the Plaintiff had been hotly contesting the eviction petitions and taking repeated adjournments for filing of counter, the question arises for consideration is, "whether the Defendant would have agreed to sell the suit property to the Plaintiff?".
20. As pointed out earlier, the case of Plaintiff is that Defendant had executed Ex.A.8 sale agreement (13.3.2002) agreeing to sell the suit property for Rs.40,00,000/- and that an advance of Rs.20,00,000/- was paid on the date of agreement of sale and further advance of Rs.10,00,000/- was paid on 1.9.2002. The Defendant categorically denies execution of the sale agreement in respect of the suit property. Defendant denies execution of Ex.A.8 and contents that Plaintiff had forged Ex.A.8 agreement of sale with the help of his paternal uncle P.W.2 and friends. Defendant has also pleaded that Plaintiff had no means to pay the amount. The defence plea is that Ex.A.10 endorsement (1.9.2002) has been created only to give the colour of reality to Ex.A.8 and the endorsement (Ex.A.10) has been fabricated as if Rs.10,00,000/- was paid.
21. In a suit for specific performance of contract, the onus is on the plaintiff to prove the contract, unless its existence is admitted by the opposite party. To prove the execution of agreement of sale and that he paid advance amount of Rs.20,00,000/-, Plaintiff examined himself as P.W.1 and his paternal uncle, who is also the scribe of Ex.A.8, has been examined as P.W.2. P.W.3 K.Anbazhagan and P.W.4 B.Ravi, who are also known to the Plaintiff, were examined as attestors to Ex.A.8. P.Ws.1 to 4 have spoken about execution of Ex.A.8 and the terms and that Ex.A.8 was written by P.W.2, and that the Defendant had signed in Ex.A.8 after receipt of advance of Rs.20,00,000/-. Even though P.Ws.2 to 4 have spoken about the execution of Ex.A.8, their evidence ought to have been carefully considered since P.W.2 is the junior paternal uncle of the Plaintiff and P.Ws.2 and 3 are known to the Plaintiff for a long time.
22. P.W.2 - Ramanathan is none other than the junior paternal uncle of the Plaintiff and he has also been working as a Checker in the Plaintiff's bus. P.w.2 is not a licensed document writer. It is pertinent to note that P.W.2 has earlier filed a suit for partition and separate possession in O.S.No.210 of 1997 (Ex.B.2) on the file of Sub-Court, Tiruvannamalai and the suit property was shown as first item in C-schedule. Having regard to the close relationship of P.W.2 with Plaintiff and the fact that P.W.2 has earlier filed suit for partition, evidence of P.W.2 has to be subjected to careful scrutiny.
23. In his cross examination, P.W.2 has stated that he took 1 = hours for him to complete the agreement of sale. P.W.2 is not a licensed document writer. But in his cross examination, he stated that he straight away prepared the agreement of sale. P.W.3 K.Anbazhagan and P.w.4 B.Ravi are close friends of P.W.1. Of course, in his cross examination, P.W.1 has stated that P.Ws.3 and 4 are not his friends and that they would not come to his office daily. In his evidence P.W.1 has stated as under:
@//// th/rh/M/16. 17 Mtz';fspy; rhl;rpahf ifbahg;gk; bra;jpUf;fpw V/mUzhryk; vd;gth; th/rh/M/8 kw;Wk; 10 Mtz';fsp[y; rhl;rpahf ifbahg;gk; bra;Js;s V/utpapd; mz;zd;/ th/rh/M/8 kw;Wk; 10 Mtz';fspy; rhl;rpahf ifbahg;gk; bra;Js;s utp. md;gHfd; ,UtUk; vd;Dila ez;gh;fs; ,y;iy/ mth;fisj; bjhpa[k;/ mth;fs; ,UtUk; vd;Dila mYtyfj;jpw;F jpdKk; te;J ngrpf;bfhz;oUg;ghh;fs; vd;why; jpdKk; tukhl;lhh;fs;/ vg;nghjhtJ te;J nghthh;fs;/ ///@
24. In his evidence, P.W.3 has stated that Plaintiff is known to him for about 20 years and P.W.4 B.Ravi is known to him for 25 years. Likewise, P.W.4 has also stated that Plaintiff is known to him for about ten years and that he would occasionally visit the Plaintiff's Office. P.W.3 is running a cool drink shop and P.W.4 is without any avocation.
25. As rightly contended by the learned Senior Counsel for the Appellant/Defendant, P.Ws.3 and 4, who were without any permanent avocation and known to the Plaintiff for quite long time, in all probability, would have readily obliged to the Plaintiff. Our view is fortified by the circumstances that P.Ws.3 and 4 are not only the attestors for Ex.A.8, but also attested Ex.A.10 - endorsement. Six months after Ex.A.8 agreement of sale, the Plaintiff is said to have paid further advance amount of Rs.10,00,000/- on 1.9.2002, for which the Defendant is said to have made Ex.A.10 endorsement (1.9.2002). For the said endorsement Ex.A.10 also, P.Ws.3 and 4 have attested as witnesses indicating that P.Ws.3 and 4 are available to the Plaintiff as and when the Plaintiff require them.
26. The contradictions in the evidence of P.Ws.2 to 4 are also relevant to be noted. In his evidence, P.W.1 has stated that he sent word to P.Ws.2 to 4 and called them to his office, whereas P.W.3 in his evidence has stated that Plaintiff himself came to his house and took him to his office for attesting Ex.A.8.
27. As discussed earlier, Plaintiff's family had been fighting out the litigation with the Defendant and his father for several years. After several rounds of litigation, the Defendant had taken possession of the suit property through Court process in 1997. Thereafter only as per the lease agreements -Exs.B.11 and B.12 (23.9.1997), the Plaintiff has been in possession of the house bearing Door No.1, Car Street on a monthly rent of Rs.1,000/- and taken lease of a shop bearing Door No.1/C, Kosamada street on a monthly rent of Rs.500/- under the Defendant. With effect from 1.8.2000, the rent was also enhanced. In the facts and circumstances, if really the defendant had agreed to sell the suit property for Rs.40,00,000/- and if the Plaintiff had paid advance of Rs.20,00.000/-, the Plaintiff would have preferred to get it registered. It is brought out in evidence that Registration Office is very near to the place of alleged execution. The explanation given by P.W.1 that the Defendant told him that there is no necessity for registering the sale agreement is not convincing. Viewed in the context of long round of litigation between the parties, non-registration of the agreement of sale raises serious doubts about the Plaintiff's case.
28. Evidence of P.Ws.1 to 4 as to the execution of the agreement of sale is to be analysed in the light of surrounding facts and circumstances. Instead of carefully analysing the evidence of P.Ws.1 to 4, the trial Court laid undue emphasis upon the aspect that in the court proceedings, the Defendant could not have taken actual delivery of possession, but must have only taken symbolic possession. The relevant finding of the trial Court reads thus:
@//// ,e;epiyapy;. thjpaplkpUe;J jhthr; brhj;Jf;fis gpujpthjp cz;ikahd RthjPdk; vLj;jpUf;f tha;g;gpy;iy/ //////// thjp tPL kw;Wk; fil Mfpatw;iw gpujpthjp. thjpaplkpUe;J milahs xg;gilg;g[ jhd; (Symbolic Possession) bgw;Ws;shh; vd;gJ epU:gzkhfpwJ/ gpujpthjpna mtuJ ;FWf;F tprhuizapy;. jhd; jhthr; brhj;ij RthjPdk; vLf;fr; brd;wnghJ. thjpa[k;. mtuJ FLk;gj;jhUk;. jhd; RthjPdk; vLf;f brd;w brhj;jpy;jhd; FoapUe;jhh;fs; vd;W TWk; NH;epiyia ghh;f;Fk;nghJ. me;j NH;epiyapy; gpujpthjp cz;ikahd RthjPdk; vLj;jpUf;f KoahJ vd;gJ bjs;sj; bjspthfpwJ/ ////@
29. We are constrained to point out that the reasonings of the trial Court are circumlocution on the aspect whether the Defendant had taken symbolic possession or actual possession. The fact that the Defendant had taken actual possession of the suit property house and the shop is amply made clear in the delivery receipt Ex.B.1. The factum of delivery of possession has been recorded in Ex.B.1 delivery receipt which reads as under:
@//// fhypahd tPl;oy; ahbjhU rhkhd;fSk; ,y;yhj fhypahf ,Ue;j tPl;ila[k;. nkw;go tPl;od; jw;bghGJ tlg[wj;jpy; cs;s nkw;go 11 filfSk; jpwe;J fhypahf ,Ue;j filfisa[k;. nkw;go brhj;jpd; nkw;F g[wj;jpy; fhypahf ,Ue;j K:d;W filfisa[k; vd;id gpuntrpf;f bra;Jk; gpujpthjpapd; mf;if tpLtpj;Jk; vdf;F RthjPdk; bra;jhh;/ ehDk; mt;thnw rfyKk;. RfyKk; mwpa nkw;go brhj;jpy; gpuntrpj;J vd; RthjPdk; bra;J bfhz;nld;/ /////
Witnesses: Signature of auction purchaser
23.9.97"
It is pertinent to note that Subramani Mudaliar judgment debtor father of Plaintiff and his brother Ramanathan (P.W.2) and their brother Krishnamurthy and Plaintiff - Shankar Vadivel have attested Exs.B.1 - delivery receipt.
30. At the time of taking the house and the shop on lease, Plaintiff had taken possession from the Defendant, recitals in lease deeds Exs.B.11 and B.12 clearly stated that in the execution proceedings, actual possession was handed over to the Defendant and that Plaintiff/lessee is taking possession on payment of rent of Rs.1,000/- and Rs.500/- respectively for the house and shop. The recitals in Exs.B.11 and B.12 read as under:
@//// ehd; jpU/$p/Rg;gpukzp Kjypahh; ,y;yk; vz;/1 ia jpUtz;zhkiy Xv!; 54-75 ,gp/ 35-76 ,v/14-76 Muzp rg;nfhh;l; rg;$l;$; mth;fs; Mh;lh;go rPdpah; bga;ypg; mth;fs; K:yk; ,d;W vd; Kd;ghf RthjPdk; mile;Jtpl;Oh;fs;/ ,d;W Kjy; nkw;go fl;ol fl;Lf; nfhg;gpy; j';fs; RthjPd brhj;jpy; tPL vz;/1 f;fhf thlif khjk; U:/ 1000 tPjk; xt;bthU khjKk; thlifia j';fsplk; brYj;jp mjw;Fz;lhd ,urPJ bgw;Wf;bfhs;fpnwd;/ ,e;jg;gof;F ehd; rk;kjpj;J vGjpf;bfhLj;j thlif xg;ge;j gj;jpuk;/@
@//// //// ehd; jpU/$p/Rg;gpukzp Kjypahhplk; thlif ,Ue;j fil vz;/1-rpia jpUtz;zhkiy X/v!;/ 54-75 ,gp/ 35-76 ,v/14-85 Muzp rg;nfhh;l;. rg;$l;$; mth;fs; Mh;lh;go rPdpah; bga;ypg; mth;fs; K:yk; ,d;W vd; Kd;ghf RthjPdk; mile;Jtpl;Oh;fs;/ ,d;W Kjy; nkw;go fl;ol fl;Lf; nfhg;gpy; j';fs; RthjPd brhj;jpy; fil vz;/1-rp?f;fhf thlif khjk; U:/500-? (U:gha; IEW kl;Lk;) tPjk; xt;bthU khjKk; thlifia j';fsplk; brYj;jp mjw;Fz;lhd ,urPJ bgw;Wf;bfhs;fpnwd;/ ,e;jg;gof;F ehd; rk;kjpj;J vGjpf;bfhLj;j thlif xg;ge;j gj;jpuk;/@
31. After taking the house and the shop on lease, Plaintiff has been paying rent to the Defendant and Defendant issued rental receipts. While so, ignoring the clinching evidence of Ex.B.1 and recitals in lease agreements- Exs.B.11 and B.12, the trial Court side-tracked the entire issue by observing that defendant had taken only symbolic possession. The trial Court erred in ignoring the recitals in material evidence Ex.B.1 and Exs.B.11 and B.12.
32. Be that as it may, we may refer to certain formidable circumstances surrounding Ex.A.8, which probabilises the defence plea of forgery. If really there was any negotiation for sale, only after negotiation the parties would have chosen to execute the document. If really the Defendant so intended to execute the agreement of sale, the stamp papers would have been purchased at a single point of time on the date of actual execution of the agreement and the stamp papers would have been purchased in contiguous serial numbers. But by perusal of Ex.A.8, we find that the stamp papers bear Sl.Nos. 22283 for Rs.100/-, 22295 for Rs.10/- and 22305 for Rs.2/-. The different Serial Numbers of stamp papers in Ex.A.8 indicate that stray stamp papers were purchased at a later point of time to bring into existence Ex.A.8. Plaintiff has not come out with any explanation as to why the numbers of the stamp papers are not in seriatim.
33. Yet another doubtful circumstance is the lack of clarity in the description of property in the Schedule of Ex.A.8. In Ex.A.8, the schedule of property has been described as under:
@/// brhj;Jtptuk; ? jpkiy hP/o/ jpkiy rg;/o/ III nrhe;j jpUtz;zhkiy lt[d; 1tJ thh;L 23tJ gpshf; njuoj; bjUtpy; lt[d; rh;nt vz;fshd 1600-1y; ? rJu mo 5131?k;. rh;nt vz;/1600-2y; rJumo 326k;. rh;nt vz;/1600-3y; rJumo 139k; Mf nkw;go K:d;W rh;nt vz;fSk; nrh;e;J xnu $f;ge;jp cl;gl;litahFk;/ ,jhdJ nkw;go bjUt[f;Fk; (fp) bfhrklj; bjUt[f;Fk; (bj) nrfh; ok;gh; og;ngh ,lj;Jf;Fk; (nk) efuhl;rp bjhlf;F gs;spf;F (t) ,jd; kj;jpapy; fp/nk/ $hjp mo 130/ t?bj $hjpmo 50 cs;s mo kida[k; nkw;go mokidapy; Mh;/rp/rp/ Xl;L bkj;ij. ehl;L XL. rPik XL Mfpatw;why; fl;lg;gl;Ls;s fl;ol';fSk; nkw;go mokidapy; gpd;g[wk; cs;s nrh;e;J fpzW cs;glt[k; ,e;j fpiwa cld;gof;if gj;jpuj;Jf;F rk;ke;jg;gl;l brhj;jhFk;/@
34. The Schedule of property given in Ex.A.8 would state that the property is a RCC and a tiled building. There is no door number specifically mentioned. In the above description, the properties are stated to be in Car street, Theradi street in S.No.1600/1, 1600/2 and 1600/3. Case of Plaintiff is that in the property there are one shop in Car street and 13 other shops in Kosamada street. In the cross examination, P.W.2 has also stated that the subject matter of agreement was one shop in Theradi street and 13 other shops in Kosamada street bearing Door Nos.1A, 1B, 1C, 1D series. But neither Kosamada street nor door numbers have been mentioned in Ex.A.8 agreement of sale. Admittedly, the property originally belonged to Plaintiff's family. P.W.2, being paternal uncle of the Plaintiff, they must have been quite well aware about the description of the property. Lack of clarity of agreement of sale in the agreement of sale with regard to description of property is yet another circumstance militating against the Plaintiff's case. Without proper analysis of the vagueness in the description of the property, the trial Court proceeded to grant decree for specific performance of the suit property and directed delivery of possession of 13 shops. In the absence of specific mention of door numbers of 13 shops in Kosamada street, decree of the trial Court directing delivery of possession of 13 shops in Kosamada street is not appropriate and is liable to be set aside.
35. Insofar as the consideration, in his evidence, the Plaintiff has stated that he paid advance of Rs.20,00,000/- on 13.3.2002 and further advance of Rs.10,00,000/- on 1.9.2002 (Ex.A.10). The Plaintiff would account for the payment of sale consideration from out of the sale of the bus TN 32 Y 1904 along with permit to one Sathish for Rs.33,00,000/-. In this regard, the evidence of P.W.1 reads as under:
@ ///// TN32Y 1904 vd;w ngUe;ij vd; bgaUf;F khw;wp bfhLj;jjw;F cz;lhd 16?6?2000 njjpapl;l nkw;go RC g[j;jfj;jpd; 20 kw;Wk; 21MtJ gf;f';fspd; g[ifg;gl efy; kw;Wk; permitd; g[ifg;gl efy; nrh;j;J th/rh/M/15/ me;j ngUe;ij routet[ld; nrh;j;J ehd; U:/33.00.000?00j;jpw;F jpUtz;zhkiy fhe;jp efhpYs;s gh!;fu bul;oahh; Fkhud; rjPc;& vd;gtUf;F fpiuak; bfhLj;njd;/ me;j gzj;jpupUe;J jhd; jhth tpf;fpiua xg;ge;jj;jpd; Kd;dpiyf;F gpujp[thjpf;F U:/20.00.000?00 Kd;gzkhf 13?3?2002Mk; njjp bfhLj;njd;/ kw;Wk; 1?9?2002Mk; njjp U:/10.00.000?00 gpujpthjpf;F bfhLj;njd;/ ////@
Even though Plaintiff has produced xerox copy of permit, (Ex.A.15) evidencing transfer of R.C, the Plaintiff had not produced any document to prove the sale of bus along with bus route. The purchaser of bus permit viz., Sathish was not examined nor any document of transfer was produced. Only Ex.A.15 R.C.permit, which carries endorsement for transfer of permit, has been produced. Transfer of permit does not indicate the consideration for which the bus and the bus permit was sold.
36. In a suit for specific performance, where the Plaintiff is said to have paid a huge amount as advance towards the sale consideration, the Plaintiff has to adduce convincing evidence as to his source of money and the payment of huge amount as advance. In 2002, the payment of advances of Rs.20,00,000/- and Rs.10,00,000/- were not small amounts, but a substantial amount. When such huge amount is said to have been paid as advance, normally, the Plaintiff is expected to adduce evidence as to the payment made and his means at that relevant time.
37. It is no doubt true that the Plaintiff had been operating two mini buses and his father has been operating three buses. The trial Court proceeded under the footing that merely because the Plaintiff has been operating buses, he is a man of means. In the light of denial of execution of agreement of sale by the Defendant and denial of receipt of any money, de hors the fact that he has been operating buses, the Plaintiff has to independently establish his means to pay the huge sale consideration of Rs.20,00,000/- and Rs.10,00,000/- on 13.3.2002 and 1.9.2002 respectively at the relevant time.
38. The Plaintiff has produced Exs.A.18 to A.21 Income-tax returns, wherein in the "Statement of Income", advance for purchase of house has been stated. The details in four returns filed are as under:
Exhibit No.
Income-tax Return
Taxable Income and Tax paid in
Statement of Income
A.18 Dt.29.7.2003 signed 7.8.2003
F.Y. 2002-2003
A.Y.2002-2003
Individual
Rs. 82,860
Rs. 6,072
Advance for purchase of house Rs.10,00,000/-
A.19 Dt.29.7.2003 signed 7.8.2003
F.Y. 2002-2003
A.Y. 2002-2003
HUF
Rs. 93,940
Rs. 7,788
Advance for purchase of house Rs.10,00,000/-
A.20 Dt.29.7.2003 signed 7.8.2003
F.Y.2002-2003
A.Y. 2003-2004
Individual
Rs.1,28,790
Rs. 15,258
Advance for purchase of house Rs.10,00,000/-
A.21 Dt.29.7.2003 signed 7.8.2003
F.Y.2003-2004
A.Y.2003-2004
Rs.1,28,480
Rs. 14,696
Advance for Purchase of House Rs.20,00,000/-
39. To hold that the Plaintiff has paid the advance of Rs.20,00,000/- plus Rs.10,00,000/-, the trial Court laid much emphasis upon Exs.A.18 to A.21 Income-tax returns and the statement of income indicating the advance for purchase of house. In our considered view, the trial Court has not analysed Exs.A.18 to A.21 in proper perspective and merely swayed by the entries thereon. As rightly contended by Mr.S.V.Jayaraman, learned Senior Counsel appearing for the Appellant/Defendant, previously, the Plaintiff was not an income-tax assessee till 2002 and he has filed Exs.A.18 to A.21 Income-tax returns on a single day after filing of the suit for specific performance. For the assessment year 2002-2003, the Income-tax returns ought to have been submitted on or before 31.7.2002. For the assessment year 2003-2004, the Income-tax returns ought to have been submitted on or before 31.7.2003. But all the four returns - Exs.A.18 to A.21 were submitted on a single day. The Plaintiff has signed in Exs.A.18 to A.21 at one stroke on 7.8.2003. Suit for specific performance O.S.No.25 of 2004 (Sub-Court O.S.No.161 of 2003) was filed in April 2003 and only thereafter the Income-tax returns covered by Exs.A.18 to A.21 were submitted as new cases. The trial Court ought to have analysed Exs.A.18 to A.21 in proper perspective by taking note that only Exs.A.18 to A.21 came into existence only after filing of the suit. In any event, the details of statement of income (stated in Exs.A.18 to A.21) are only self declaration and trial Court fell in error by relying upon the Statement of Income enclosed with Income-tax returns Exs.A.18 to A.21 to hold that the sale consideration was paid by the Plaintiff. In fact, there is variation in the statement of income as to the alleged amount paid as advance for purchase of house. If we go by the statements of income enclosed in Exs.A.18 to A.21, the total advance for purchase of house allegedly paid totally comes to Rs.50,00,000/-.
40. We have no hesitation in holding that Exs.A.18 to A.21 were prepared at a stretch nearly four months after filing of the suit and were brought into existence after filing of the suit. Based upon two sale deeds Exs.A.16, A.17 and A.29, the trial Court proceeded under the presumption that Plaintiff is a man of means dealing in several lakhs of rupees. Ex.A.16 (15.2.1994) is the sale deed in favour of Plaintiff for purchase of 1650 sq.ft from one Saroja for Rs.26,400/-. Ex.A.17 is the sale deed (7.4.1995) in favour of Plaintiff's wife Malathi for Rs.1,25,000/-. Likewise, Ex.A.29 (21.1.2004 is a sale deed in favour of Plaintiff's wife Malathi for Rs.6,87,000/-. Based upon Exs.A.16, A.17 and A.29 and that the Plaintiff was also operating mini buses the trial Court proceeded under the footing that the Plaintiff is dealing in several lakhs of rupees and that he is a man of means to pay huge sale consideration. In our considered view, the trial Court did not examine Exs.A.23 to A.25 bank pass books of the Plaintiff. Ex.A.23 is the Canara Bank Pass Book of the Plaintiff from 29.1.1991 to 20.7.2004. Likewise, Exs.A.24 is the Indian Bank pass book of the Plaintiff from 3.9.1993 to 31.1.2004. Ex.A.26 is the Central Bank pass book of Plaintiff from 28.1.2002 to 31.3.2004. Ex.A.25 is the State Bank of India pass book of the Plaintiff, which account he started from 10.3.2004.
41. We have perused the original Bank pass books. By perusal of the pass books, it is seen that the transactions are only ranging from Rs.50/- to Rs.300/-. The Bank transactions would indicate that the Plaintiff has not been operating the said bank accounts on a big scale but the transactions involve only few hundreds. In his evidence, P.W.1 has also admitted that he has been dealing with the Bank transactions in Canara Bank and Indian Bank only with less amounts. The trial Court has not analysed Exs.A.23 to A.26 in proper perspective. The trial Court erred in not taking into account the Bank transactions whereby the Plaintiff's Bank operations were only in few hundreds. Ex.A.16 (15.2.1994) is the sale deed in favour of Plaintiff for purchase of 1650 sq.ft from one Saroja for Rs.26,400/-. Ex.A.17 is the sale deed (7.4.1995) in favour of Plaintiff's wife Malathi for Rs.1,25,000/-. Likewise, Ex.A.29 (21.1.2004 is a sale deed in favour of Plaintiff's wife Malathi for Rs.6,87,000/-. Apart from the fact that the amounts involved in those sale deeds are very less, those sale deeds were not contemporaneous to presume that the Plaintiff had means in March 2002 and in September 2002.
42. Based upon Exs.A.15 and A.16, trial Court erred in saying that the Plaintiff has been dealing with several lakhs. The finding of the trial Court that the Plaintiff has been dealing in several lakhs and that he is a man of means and that he is affluent and he would have no difficulty in paying the advance towards the sale consideration is erroneous and unsustainable. The sum of Rs.20,00,000/- and Rs.10,00,000/- allegedly paid towards advance are not small amounts. Necessarily the Plaintiff ought to have substantiated his case by adducing proper evidence to prove the consideration.
43. The lack of evidence on consideration ought to have been examined in the light of the conduct of the parties. As pointed out earlier, rent for the house was enhanced from Rs.1,000/- to Rs.4,000/- per month from 1.8.2000 and the rent for the shop was not enhanced. Since the Plaintiff/tenant committed wilful default in payment of rent in respect of the shop, the Defendant/auction purchaser issued legal notices Exs.B.13 and B.14 (dated 16.9.2002) seeking eviction on the ground of wilful default in payment of rent. If really the Defendant had executed the agreement of sale (13.3.2002), on receipt of Exs.B.13 and B.14 notices, the normal conduct of the Plaintiff would have been to immediately respond to the said notices referring to the agreement of sale. But the Plaintiff had not issued any reply to Exs.B.13 and B.14. Non-issuance of any reply notice by the Plaintiff is a strong militating circumstance against the Plaintiff's case. Non-issuance of any reply probabilises the defence case that Ex.A.8 must have been fabricated. The Defendant/landlord filed two eviction petitions in R.C.O.P.No.10 of 2002 in respect of shop (Ex.B.15) and R.C.O.P.No.12 of 2002 in respect of house (Ex.B.16) on 11.11.2002. The first hearing in both R.C.O.Ps was on 26.12.2002 and R.C.O.Ps were adjourned to 6.2.2003, 19.2.2003, 10.3.2003 and finally posted on 31.3.2003 as a last chance for the counter of the Plaintiff/tenant. It was at that stage Plaintiff issued Ex.A.11 - pre-suit notice (22.3.2003) referring to the alleged agreement of sale and demanding for execution of sale deed. The timing in which the agreement of sale was brought out probabilises the defence version that Ex.A.8 agreement was brought into existence to protract the eviction proceedings in the Rent Control Petitions.
44. The Plaintiff sought to dilute his conduct of non-issuance of reply by putting forth a case of Panchayat. In his evidence, P.W.1 has stated that after receipt of Exs.B.13 and B.14, he has been negotiating with the Defendant for settlement and persuading the Defendant to execute the sale deed and therefore he had not chosen to send the reply. The trial Court accepted the Plaintiff's plea that the Plaintiff had been negotiating with the Defendant and therefore the Plaintiff had not chosen to send any reply. By referring to the evidence of P.Ws.2 and 3, the trial Court accepted the plea of negotiation.
45. Even though in his evidence, the Plaintiff has stated about the alleged negotiation by P.Ws.2 to 4/Panchayat, absolutely there is no whisper in the plaint about any mediation. P.Ws.1 to 4 were not able to collect the date, month and the year when they had such negotiation/mediation with the Defendant. The evidence of P.Ws.1 to 4 is full of contradictions on the aspect of mediation. In his cross examination, P.W.2 has deposed that after filing of the suit he alone met the Defendant twice and tried for mediation. Whereas in his cross examination, P.W.3 has stated that he went thrice to meet the defendant and on those occasions, Defendant informed him that if the Plaintiff pays further sum of Rs.40,00,000/- then only he will register the sale deed. Whereas in his cross examination, P.W.4 has stated that after 1.9.2004 twice P.W.3 had gone to the Defendant and requested to execute the sale deed and on those occasions the Defendant insisted for further Rs.70,00,000/- to execute the sale deed. Omission to mention about the mediation efforts by P.Ws.2 to 4 militates against Plaintiff's case. The reasons stated by the Plaintiff for his inaction in not issuing the notice are not convincing. Equally, the Plaintiff's conduct is unacceptable in keeping quiet for more than six months after receipt of eviction notice Ex.B.13 and B.14 and his persistent inaction points to the irresistible conclusion that the authorities did not enter into any agreement of sale and that Ex.A.8 must have been brought into existence after taking repeated adjournments for filing counter in the eviction proceedings.
46. Learned Senior Counsel appearing for Respondent/Plaintiff Mr.T.R.Rajagopalan submitted that notwithstanding the long drawn litigation Plaintiff was maintaining cordial relationship with the Defendant and quite naturally the Plaintiff would have negotiated for settlement after receipt of Exs.B.13 and B.14 - notices and therefore non-issuance of reply by the Plaintiff cannot be put against the Plaintiff. To substantiate his contention that the Defendant was cordial with Plaintiff's family, learned Senior Counsel has drawn our attention to Exs.A.30 and A.31 photographs showing that the Defendant had participated in the ear boring ceremony of Plaintiff's children held on 3.8.1998. Of course, Defendant had admitted having participated in the ear boring ceremony on 3.8.1998, but that does not in any way indicate that the relationship continued to be cordial even in 2002 at the time when the Defendant filed the eviction petitions. It is pertinent to note that the ear boring ceremony was on 3.8.1998 after delivery was recorded in execution Proceedings (on 29.9.1997 as per Exs.B.1 and B.10) and Plaintiff became lessee under the Defendant by virtue of two lease agreements - Exs.B.11 and B.12 (23.9.1997), Exs.A.30 and A.31 photographs does not in any way advance the case of the Plaintiff.
47. When the Defendant had taken up the plea of forgery, the Plaintiff ought to have taken steps in sending Exs.A.8 and A.10 for obtaining the opinion of the handwriting expert. But the Plaintiff remained content by examination of P.Ws.2 to 4. But the Defendant himself had taken steps to send the documents to Tamil Nadu Forensic Science Laboratory to get the opinion of handwriting expert. Handwriting expert Dr.Kirubakaran was examined as D.W.2 and his opinion was marked as Ex.B.17. D.W.2 had given markings 'S1 to S10' to the admitted signatures of the Defendant found in Income-tax Challan and the house tax receipts issued by the Defendant. The disputed signatures in Ex.A.8 and A.10 were given markings as Q1 to Q4. D.W.2 has opined that the person, who wrote S1 to S10 did not write the disputed signatures - Q1 to Q4. The opinion of D.W.2 reads as under:
"The person who wrote the red enclosed signatures stamped and marked S1to S10 did not write the red enclosed signatures similarly stamped and marked Q1 to Q4."
The reasonings of D.W.2 in forming the said opinion is as under:
"The standard signatures have been freely written and agree in the handwriting characteristics on an interse comparison. The questioned signature has been limited and differs significantly with the standard in the handwriting characteristics. The characteristic differences include among other things the following.
1. The skill of writing
2. The alignment between the strokes of the letters in the signatures.
3. The relative sizing between the strokes of the letters in the signatures.
4. The manner of connecting the strokes of the letters in the signatures
5. The manner of terminating the signatures
6. In the detailed designs such as the beginning and formation of loops and curves of the strokes of the letters in the signatures."
48. The trial Court discarded the evidence of D.W.2 and also his report and reasoning sheet - Ex.B.17 on the ground that the reasonings are very vague and not convincing. The trial Court proceeded to analyse the evidence of D.W.2 and his reasoning in minute details. The trial Court observed as under:
@ //// rh;r;irf;Fhpa ifbahg;g';fspy; mJ vt;thW ,Ue;jd mtw;wpy; vJ vJ ve;jtifapy; khWgl;L fhzg;gl;ld vd;gJ gw;wp fhuz';fs; vJt[k; tpsf;fg;glhky; bkhl;il mwpf;ifahf jhf;fy; bra;Js;shh;/ ,jpypUe;J tHf;fpy; ifbaGj;J epg[dUf;F mDg;gp itf;fg;gl;l rh;r;irf;Fhpa ifbaGj;Jf;fSk; xg;g[f;bfhs;sg;gl;l ifbaGj;Jf;fSk; Kiwahft[k; rhpahft[k; Ma;t[ bra;ag;glhknyna xU nknyhl;lkhf mwpf;if mspj;J cs;shh;/ ////@
49. That apart the trial Court had also observed that D.W.2 has been influenced to give a favourable report. During cross examination of D.W.1 it was elicited that his brother Sarat Balaji is practising as a doctor in Arni. One Ramu, higher officer of D.W.2 also hails from Arni. It was suggested to D.W.2 that through his brother Sarat Balaji and D.W.2's higher officer Ramu, the Defendant influenced D.W.2 and therefore Ex.B.17 report is a favoured one. The trial Court virtually accepted the above suggestion and observed that opinion evidence of D.W.2 is very vague and concluded that it is one sided. Referring to BHAGWAN KAUR VS. SHRI MAHARAJ KRISHNAN SHARMA AND OTHERS (AIR 1973 SC 1346) and other decisions, the trial Court observed that the opinion of the handwriting expert has to be viewed with caution and that the Court itself can compare the signature to form an opinion as to the report of the handwriting expert. Most part of the impugned judgment refers to the report of the handwriting expert and attacking the same. In our considered view, the trial Court ought not to have ventured into the opinion of the handwriting expert with so much of stress and vigour. By over stressing the evidence of handwriting expert, the trial Court has not properly analysed the core defence plea and the other formidable circumstances pointed out by the Defendant.
50. It is no doubt true that expert opinion must always be received with great caution, perhaps with more caution in the case of handwriting expert. It is fairly well settled that the expert evidence must always be received with great caution. Having regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. The opinion of the handwriting expert can at best provide a tentative method of judging the authorship of the signature and the safe course is to test such a comparison with surrounding circumstances. Of course, the Court should therefore be wary to give too much weight to the evidence of handwriting expert. But we are unable to countenance the views of the trial Court in rejecting the opinion of the handwriting expert on puerile grounds that the opinion of the handwriting expert is vague and that D.W.2 obliged the Defendant in giving a favourable report. It is pertinent to note that the influence and bias suggested against D.W.2 is unfounded. D.W.2 is a Government official from the Tamil Nadu Forensic Science Laboratory. While so, the alleged influence through Sarath Balaji through D.W.2's higher officer is too remote to hold that D.W.2 has been influenced.
51. Under section 73 of the Indian Evidence Act, the Court has got power to compare the disputed handwritings. The trial Court appears to have examined, compared the handwriting of the Defendant found in Page Nos.5 to 13 of defendant's deposition and also Exs.A.33 to A.41 - rental receipts issued by the Defendant. After referring to the minute details trial Court observed that the Defendant is not consistent in his handwritings and observed that there is much variation in the signature of the Defendant. The science of handwriting is not an accurate one and there is likelihood of errors creeping in. In our considered view, the trial Court ought not to have ventured into comparison of the defendant's other signatures to say that there is no consistency in the signature of the Defendant. The trial Court did not keep in view that they are bound to be natural variation in the signature of any person.
52. Under Section 73 of the Evidence Act, Court is competent to compare the disputed writings of a person with other writings, which are admitted or proved to be his writings. Such comparison by the Court is only to properly appreciate the other evidence available on record on the question of writings. However, it would be too hazardous for a Court to use its own eyes merely on the basis of personal comparison to decide the vital issues between the parties on the question of handwriting of a person. Though there is no legal bar to the judge using his own eyes to compare the disputed writings with the admitted writings without the evidence of handwriting expert, as a matter of prudence, and caution, the courts should hesitate to base its finding with regard to the identity of handwriting, which forms sheet anchor in a case.
53. We are of the view that the trial Court ought not to have taken up the task of elaborating upon the minute details in the opinion evidence of D.W.2 to attack his opinion, more so, when D.W.2 is qualified handwriting expert and a Government Official. In our considered view, trial Court is not right in discarding the evidence of D.W.2 the handwriting expert and his reasonings. Upon analysis of facts and surrounding circumstances, we are convinced with the opinion of D.W.2 that the person, who wrote 'S1 to S10' had not written 'Q1 to Q4' as the same is well balanced and in consonance with other circumstances.
54. The relief of specific performance is an equitable relief. The party, who is claiming equity must come to the Court with clean hands. Upon analysis of evidence and facts and conduct of the parties, we find that Ex.A.8 has been brought into existence after filing of the eviction petition. In our considered view, there is gross mis-appreciation of evidence and the conduct of the parties was not analysed in proper perspective. Upon analysis of evidence, we have no hesitation in holding that the approach of the trial Court is erroneous and its findings are perverse and the judgment and decree of the trial Court are liable to be set aside.
55. In the result, the judgment dated 14.10.2006 made in O.S.No.25 of 2004 on the file of District Court, Tiruvannamalai is set aside and the Appeal is allowed with costs throughout. The Rent Controller, Tiruvannamalai -Prl.District Munsif, Tiruvannamalai is directed to expedite R.C.O.P.Nos.10 of 2002 and 12 of 2002 and dispose off the same by the end of December 2010.
[R.B.I.,J] [G.M.A.,J.]
23.08.2010
Index: Yes
Internet: Yes
bbr/usk
To
The District Judge
Tiruvannamalai
R.BANUMATHI,J
and
G.M.AKBAR ALI,J.
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