Abdul Wahid vs Lekh Ram and Others

L.N. Mittal, J.—For reasons mentioned in the application, which is accompanied by affidavit of Clerk of the Counsel, delay of 06 days in refiling the appeal is condoned. The application stands allowed accordingly.

Main Case

Plaintiff-Abdul Wahid having been non-suited by; both the courts below has filed this second appeal.

Plaintiff alleged that in the year 1968, dispute regarding the suit property arose between his father Abdul Rashid on the one hand and defendant No. 1 and Nannu-father of defendant Nos. 2 and 3 on the other hand and the said dispute was settled by way of compromise according to which possession of the suit property was given to plaintiff''s father. Now plaintiff is owner in possession thereof but the defendants threatened to interfere in his ownership and possession thereon, necessitating the filing of the suit for permanent injunction restraining the defendants from doing so.

Defendant No. 1 broadly denied the plaint averments and pleaded that defendant No. 1 and Dharam Chand purchased suit property vide registered sale deed dated 02.05.1978 from Abdul Hamid. Share of Dharam Chand ultimately came to Kishan Devi. Defendant No. 1 and Kishan Devi raised construction in the suit property after getting building plan sanctioned from municipality. They are also recorded to be owners of the suit property in house tax assessment record.

Both the Courts below have dismissed the suit of the plaintiff, who has, therefore, filed this second appeal.

I have heard learned counsel for the appellant and perused the case file.

Counsel for the appellant contended that in view of compromise Exhibit P-2, possession of the plaintiff is proved and therefore, he is entitled to injunction prayed for. It was contended that compromise Exhibit P-2, even being unregistered, could be taken into consideration for collateral purpose of determining possession of the plaintiff. Reliance in support of this contention has been placed on judgment of Hon''ble Supreme Court in the case of Kale and Others Vs. Deputy Director of Consolidation and Others, It was also argued that the defendants have failed to prove the title of their vendor Abdul Hamid, from whom they allegedly purchased the suit property vide sale deed dated 02.05.1978.

I have carefully considered the aforesaid contentions, but the same cannot be accepted. Firstly, alleged compromise Exhibit P-2 has not been proved. There are so many witnesses of the said compromise but none of them has been examined. Haji Bhura PW-2 stated that the compromise was effected in his presence. However, the compromise does not purport to bear his signatures as witness. Consequently, it cannot be said that he was witness of the compromise. On the other hand, many witnesses, who were present, have signed the compromise as witnesses. None of them has been examined by the plaintiff.

In addition to the aforesaid, the plaintiff examined handwriting and finger print expert Parveen Pahuja PW-3 who stated that disputed signatures of defendant No. 1 on the compromise matched with his standard/specimen signatures. However, science of comparison of handwriting is not perfect science. It is a very weak science. It has even been seen that handwriting expert engaged by a party gives opinion in favour of the party engaging him. Even conflicting opinions are given by the experts engaged by the rival parties. On the contrary, science of comparison of finger print is perfect science. The alleged compromise also purports to bear thumb impression of defendant No. 1. However, the plaintiff in spite of engaging and examining handwriting and finger print expert did not get matched alleged thumb impression of defendant No. 1 on the compromise with his specimen/standard thumb impressions, in spite of the fact that science of comparison of thumb impressions is perfect science. It is thus manifest that the plaintiff intentionally withheld the said best evidence and therefore, adverse inference arises against him. Plaintiff has also not examined any witness of the compromise. For this reason also, adverse inference arises against the plaintiff.

Since the alleged compromise is not proved, the same cannot be taken into consideration even for collateral purpose. Consequently judgment in the case of Kale and Others Vs. Deputy Director of Consolidation and Others, has no applicability to the instant case.

The plaintiff cannot succeed even if the defendants have not proved the title of their vendor. On the contrary, there is registered sale deed dated 02.05.1978 in favour of defendant No. 1 and Dharam Chand. The said sale deed was executed 27 years prior to the filing of the instant suit when there was no dispute about the suit property. Consequently even in the absence of any other evidence regarding title of defendants'' vendor Abdul Hamid, defendants stand on a better footing in view of registered sale deed vis-a-vis the plaintiff who has no document whatsoever regarding his title or possession. Even his witness Haji Bhura PW-2 admitted that he had not seen any document of title in favour of plaintiff. The plaintiff has also admitted that he did not have any document regarding his title except the alleged compromise. Plaintiff has miserably failed to prove his case. His suit has, therefore, rightly been dismissed by the courts below. Concurrent finding recorded by the Courts below to non-suit the plaintiff is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal or based on misreading or misappreciation of evidence. There is, therefore, no ground to interfere with the said finding. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal lacks any merit and is accordingly dismissed in limine.