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Dashrath Maurya v. Munib And Others - SECOND APPEAL No. 946 of 1996 [2007] RD-AH 13798 (9 August 2007)


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Second Appeal No. 946 of  1996

Dashrath Maurya..................................................................................Appellant


Mobin and others.............................................................................Respondents


Hon.Tarun Agarwala, J.

Heard Sri Shiv Sagar Singh and Sri Ramesh Sinha, the learned counsel for the appellant and Sri R.N. Upadhyay, the learned counsel for the respondents.

The plaintiff filed a suit for cancellation of the sale-deed dated 23.5.1981 executed in favour of the defendant. The plaintiff alleged that he had never executed the sale-deed in favour of the defendant and that the sale-deed was executed by some imposter. The defendant resisted the suit holding that the sale-deed was executed by the plaintiff. Subsequently, the statement of the defendant was recorded under Order 10 Rule 2 of the C.P.C. alleging that the plaintiff had executed the document in the name of Dashrath and that the plaintiff was not Dashrath but, in fact is, the son of Dashrath, namely, Ram Prasad. The trial court framed several issues and, issue No.1 related to the question as to whether the sale-deed was liable to be cancelled on the ground mentioned in the plaint and issue No.10 was whether the plaintiff himself had signed the plaint or not.

The trial court, after considering the evidence brought on record, decreed the suit holding that the sale-deed was executed by the plaintiff Dashrath and that the plaintiff's name was Dashrath and that the defendant could not disprove this fact. The defendant, being aggrieved by the aforesaid decree, filed an appeal. During its pendency, an application under Order 41 Rule 27 C.P.C. was filed to bring on record the certified copies of the revenue records. This application was allowed, after time was granted to the plaintiff to file rebuttal, on payment of cost. The record further indicates that cost was paid to the plaintiff. Consequently,  certified copies of the Khasra and Khatauni were brought on the record of the case. The lower appellate court, on the basis of the entries in the revenue records, found that the plaintiff Dashrath had died in 1977 and, after perusing other evidence, namely, the school leaving certificate and other documents, concluded that since Dashrath had died on 1977 he could not have executed the sale deed in 1981. The lower appellate court also came to the conclusion that the plaintiff who was alleging himself to be Dashrath was not in fact Dashrath as he has died in 1977 and that the plaintiff was none other than Dashrath's son, namely, Ram Prasad. The lower appellate court also found that Ram Prasad had in fact executed a sale-deed dated 23.5.1981 in favour of the defendant by posing himself as Dashrath and had played a fraud upon the Court in filing the suit for the cancellation of the sale deed. The lower appellate court, consequently, while reversing the finding of the trial court and dismissing the suit also directed a case of forgery to be registered against the plaintiff. The plaintiff, being aggrieved by the aforesaid appeal, has filed the Second Appeal.

The learned counsel for the plaintiff-appellant submitted that the Court had acted beyond its power in treating itself to be an expert while comparing the signatures of the plaintiff with that of the signature of Dashrath. Such exercise  of comparing the signature could only be done by an expert.

In my view, the submission of the learned counsel for the appellant is bereft of merit. The opinion of an expert under Sections 45 and 47 of the Evidence Act is only required when the court has any doubt about the signatures on a document. It does not mean that the court cannot compare the signatures on its own. The court alone is competent to judge and compare a document and, in case of difficulty, it can seek the assistance of an expert. The submission of the learned counsel that the court has acted as an expert and has travelled beyond its powers is patently erroneous. The submission of the learned counsel is rejected.

The learned counsel for the appellant further submitted that the appellate court relied upon the documents which was produced at the appellate  stage and did not consider the documents  relied upon by the trial court. The learned counsel for the appellant further submitted that the court below committed an error in allowing the additional evidence under Order 41 Rule 27 of the C.P.C. when no ground existed in allowing such an application. Further, the lower appellate court has not specified the points to which the evidence was to be confined as contemplated under Order 41 Rule 29 of the C.P.C.

In my opinion, quite apart from the fact that such grounds have not been raised in the memo of appeal which cannot be urged by the learned counsel at the stage of the hearing of the appeal, even otherwise, the submission is bereft of merit.  From a bare perusal of the order sheet of the lower appellate court, it is clear, that time was allowed to the plaintiff to file objections to the application under Order 41 Rule 27 of the C.P.C. The court while allowing the application has recorded the reasons for admitting the documents, holding that these documents  were necessary not only in the interest of justice but was also necessary in order to do complete justice between the parties. Further, by an order dated 5.2.1997, the lower appellate court allowed the application on payment of cost. The order on the application indicates that the cost was received by the plaintiff. Once the cost has been received, the plea that the additional evidence could not be taken on record, cannot be entertained. Further, the appellate court has clearly held that the documents which are being taken on record are none other than public documents.  

In view of the aforesaid, the finding of the lower appellate court that the plaintiff himself  was an imposter posing himself as the plaintiff Dashrath, which fact has not been disputed in this appeal nor those documents, namely, the Khasras and Khataunis have been disputed, this Court is not inclined to entertain the appeal.

In my view, no substantial questions of law arises for consideration. The second appeal fails and is dismissed.




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