Ami Chand Pandey vs Keshava Prasad Singh and Another

A. B. Srivastava, J.—This appeal by plaintiff under Section 100 of the Code of Civil Procedure is directed against a judgment and decree dated 27111987 of the Civil Judge, Ballia in a First Appeal, whereby setting aside the judgment and decree of the trial court he dismissed the suit of the plaintiff for cancellation of saledeed.

Suit No. 310 of 1992 was filed by plaintiff Ujagir Pandey against defendantrespondents Keshav Prasad and Ambika Singh, for cancellation of a saledeed dated 1841972. Theoriginal plaintiff Ujagir Pandey having died during the pendency of the First Appeal, the present appellant Ami Chand claiming on the basis of a will, was brought on record as his legal representative.

The plaint allegations in the suit filed by late Ujagir Pandey were to the effect that he is the tenureholder of the plots in suit, with a total area of 1.65 acres in village Shankerpur, .20 acres in village Sawan and .90 acres in Nadauli, Pargana Kopachit Garvi, district Ballia. The defendant No. 2

Ambika Singh a resident of village Nadauli, with an evil eye on these plots, got a sale deed dated 1841972 executed by an imposter in favour of his son Keshav Prasad, defendant No. l.The plaintiff Ujagir Pandey neither executed nor put his signatures or thumb impression on the said sale deed, which is a fictitious document, he did not go to the SubRegistrar''s Office to get the sale deed executed nor appeared before the SubRegistrar to acknowledge the same. No consideration for the saledeed was paid to him, no witness signed the same in his presence and the defendant No. 1, is employed in Armed Force was even not present at the time of the alleged saledeed. The plaintiff continued to be in possession despite the saledeed but since it was likely to cast cloud on his title the suit with a relief of cancellation was filed.

The suit was contested by means of a written statement filed by the defendant No. 2 Ambika Singh who denied the allegations in the plaint and pleaded that Ujagir Pandey of his own free will executed the impugned saledeed, for a sum of Rs. 12,000 and Rs. 4,000 had been paid to him by way of advance at the time the transaction was negotiated and the balance Rs. 8,000 was paid to him at his home on 18.4.1972 whereafter he came to the SubRegistrar''s office at Rasra and in the presence of witnesses Lallan Pandey and Veera Lekhpal, executed the saledeed by putting his thumb impressions, he also affirmed these facts before the SubRegistrar at the time of registration, the saledeed is not a forged document or has been executed by any imposter. The plaintiff has no issues and mostly lives in his ''Nanihal'', and has no means of cultivation. Possession in pursuance of the saledeed has been delivered to the vendee. Before the trial court both the parties led oral evidence. A certified copy of the impugned saledeed was produced by the plaintiff. The defendant did not produce the saledeed on the plea of the same haying been lost. The specimen thumb impressions of Ujagir Pandey taken in the court were got compared with the thumb impressions of the vendor on the Register No. o maintained in the office of the SubRegistrar, by their respective experts, by the parties, the expert on behalf of the defendant M.N. Singh, D. W. 5, opining that the thumb impression on the Register No. 8, tallied with the specimen left thumb impression of Ujagir Pandey, whereas the expert on behalf of the plaintiff Madan Mohan Kakkar, D.W. 3 opined otherwise. The documents were also sent for comparison to the Government Expert at Lucknow by the trial court who in their report dated 6111978 submitted that the disputed thumb impression on Register No. 8 is not clear enough for comparison.

On behalf of the plaintiff, the original plaintiff Ujagir Pandey (P.W. 1) Fateh Bahadur Singh (P.W. 2) were examined as witnesses of fact on the questions in issue. P.W. 4 Jagar Kumar, a photographer, was examined to prove the negatives and the positive photographs and specimen thumb impressions utilised by the Expert Madan Mohan Kakkar.

On behalf of the other side defendans vmbika Singh (D.W. 1), Lallan Pandey (D.W. 2), Shri Bhagwan Pandey (D.W. 3), Sury s Deo Pandey (D.W 4) were examined as witnesses of fact. Jagat Kumar the photographer was again examined as D.W. 6 to prove the negatives ,md the positive photographs utilised by die defendant Expert M. R Singh.

Holding that the saledeed in question has not been executed by Ujagir Pandey and did not bear his thumb impressions and the payment of consideration for the sale deed is also not proved the learned Munsiff who tried the suit decreed the same for cancellation of the said document. On appeal being preferred by the defendant, the learned Civil Judge reversing the said finding, held the execution of the saledeed inquestion to have been duly executed by Ujagir Pandey, for consideration. He accordingly set aside the judgment and decree of the trial court and dismissed the suit.

On this second appeal being preferred by the plaintiff appellant in this High Court, Hon''ble M.P. Singh. J. by his order dated 1081988 under Order XLI, Rule 11 C.P.C., dismissed the same with the following order.

"Having heard learned counsel for the appellant, we find no merit in the appeal. The appeal is accordingly dismissed."

On appeal by special leave preferred before the Supreme Court, the order aforesaid dated 1081988 was set aside, and the appeal remanded to this Court, with direction that the conflict between the reports of the two experts examined by either side be resolved by taking additional evidence on the question of identity of the thumb impression by calling a Government Expert to express his opinion on the thumb impression in question, and further observing that it will be open to this Court to consider the question on the basis of such additional evidence as the parties will let in and dispose of the matter on the merit or, if necessary, remand the case to the appropriate court for purpose of taking the additional evidence. The appeal thereafter was nominated to this court by an order dated 27''41992 of Hon''ble the Chief Justice.

Before this Court in addition to the documents earlier relied on for the purpose of comparison of the thumb impression, on behalf of the appellant willdeed alleged to have been executed by Ujagir Pandey on 6101979 in favour of the present appellant, bearing his thumb impressions, was also cited amongst other documents, to be utilised for the purposes of comparison by the Government Expert. The genuineness of the will having not been accepted by the defendantrespondent, parties were asked to file affidavits before it was sent for comparison of the Expert, and to examine witnesses if any at the stage final hearing. While affidavits were filed whereafter the papers were sent to the Government Expert, at the stage of hearing no oral evidence on this point has been laid by either party, but from the record it would be found that the genuineness of this will was the subjectmatter of contest between the parties before the first appellate court in the substitution proceedings and the will was found to have been executed by Ujagir Pandey. The existence of will or the thumb impression of Ujagir Pandey thereon, however, does not remain relevant in view of the latest report of the Government Expert.

The Government Expert in the Directorate of Finger Print Bureau, U.P. Lucknow has in his report dated 8101996 submitted to this Court has on the basis of examination of the photo enlargements of the specimen thumb impressions of Ujagir Pandey taken in the trial Court the thumb impressions on the will deed, and the disputed thumb impression on the Register o. 8, opined that the disputed thumb impression marked serial No. 1253 is not clear, and the ridge characteristics therein are also not clear so as to attempt any comparison of the same with the specimen left thumb impression or the thumb impressions on the will.

On being called upon to lead additional evidence, if any, in this appeal, the plaintiffappellant Ami Chand Pandey examined himself to state about the alleged complaint by late Ujagir Pandey to the SubRegistrar, Rasra, District Ballia, about the saledeed in question being forged and the consequent lodging of F.I.R. and initiation of criminal proceedings before a Magistrate which is still pending. It was submitted on behalf of the appellant that no further additional evidence was to be led and so was by the respondents.

Not being a case for further remand to the court below, therefore, the parties have been heard and this appeal is being finally disposed of.

The contention on behalf of the appellant for assailing the findings and decree of the first appellate court are that, the evidence lead by the plaintiff was wrongly discarded, the plaintiff Ujagir Pandey having denied on path the execution of the saledeed and having put his thumb impressions thereon, the onus shifted on the defendants, who failed to lead satisfactory evidence by examining both the attesting witnesses to the saledeed, producing the original saledeed, and establishing the consideration to have been paid.

On behalf of the defendantrespondents on the other hand, it has been contended that it being second appeal, reappraisal of evidence is not permissiblethere being no substantial error of law, the plaintiff failed to discharge his burden by leading any cogent evidence to prove that the sale deed was forged and executed by any imposter, there was no plea of nonpayment of consideration as such, nor any specific issue was got framed. The oral evidence lead by the defendants categorically established the saledeed to have been executed by Ujagir Pandey, examination of both the attesting witnesses was not necessary as Section 68 of the Evidence Act was not attracted, there was sufficient explanation for nonproduction of the original saledeed, the same having been lost from the custody of the defendant No. 1 who is employed in the Armed Forces.

As regards the question of burden of proof raised from both sides, suffice it to say that the said question remains more of academic importance, once the parties joining issue, enter into evidence. The questions in controversy thus had to be decided on a cumulative consideration of the evidence of both sides and the inferences deducible therefrom and not on the analysis of the evidence of the two sides in any water tight compartment. In the instant case this precisely has been the approach of the lower appellate court and it''s finding cannot be assailed on this aspect. As against this, a perusal of the judgment and order of the trial court would go to show an approach as if the entire burden to prove the execution of the saledeed was on the defendantrespondents. In the above circumstance it was very much necessary for the court in First Appeal to go for reappraisal of evidence, which is also permissible in law in a first appeal.

Adverting to the question in issue in this case it would be found that, the moot question for decision is whether the late plaintiffs Ujagir Pandey did, or did not, execute the impugned saledeed, whether it was executed by an imposter as alleged in the plaint or was duly executed for consideration by him, as contended in defence. The evidence on these aspects would comprise of the statements of witnesses directly connected or conversant with the transaction, as also the result of comparison of the disputed thumb impression with admitted or specimen signatures of late Ujagir Pandey, by Document Expert.

As already stated above, in the trial court this exercise of comparison by the Document Expert was undertaken with the help of Register No. 8 maintained in the SubRegistrar''s office, and the specimen thumb impression of Ujagir Pandey taken before the court. Recourse to Register No. 8 was taken as the original sale deed was not produced by the contesting defendant. His contention on being called upon to produce the saledeed, being that the same is not traceable, having been lost from the custody of the defendant No. 1, an Armed Forces'' employee. In his evidence also, the D.W. 1 Ambika Singh stated in his crossexamination that the defendant No. 1 had taken the original saledeed with him to his place of employment where it was lost. On behalf of the appellant it has been argued with some vehemence that the evidence led is not sufficient to prove the loss of the original sale deed, and such recourse to secondary evidence could not be taken, and it leads to an adverse inference against the defendant and in favour of the plaintiff, that the sale deed was a forged document. This contention, however, does not appear tenable, as it is not a case where no foundation has been laid, nor any evidence or circumstances brought forth to establish loss of the document. It has been the consistent stand of the contesting defendant that the document had been kept by the defendant No. 1 Keshav Singh with him which in the course of his movement during employment was lost. His crossexamination on this aspect does not reveal anything to discredit him. Admittedly, the defendant No. 1 is an Air Force employee, in regard to whom a certificate of his Officer Commanding, about his being in a field job is also on record. In these circumstances of his being subject to frequent movements, there is no wonder if the document was lost. It may be a bit unnatural for a person to keep an original document at the place of his posting, but it cannot be said to be impossible or improbable.

Reliance in support of his contention on this point placed by the appellant on the preposition laid down in Gopal Krishnaji Ketkar v. Mohammed Haji Latif and others, AIR 1968 S.C. 1413, and The Roman Catholic Mission v. State of Madras and another, AIR 1965 S.C. 1457 does not come to his rescue for the aforesaid reasons, and neither recourse to secondary evidence could be disallowed nor, the defence version thrown on the basis of any adverse inference.

This brings us to the matter regarding identity of the thumb impression. Admittedly, in accordance with the rules, in the Registration Department, the thumb impression or signature, as the case may be, of the executant of a document, presented for registration, is obtained on the Register No. 8 at the time of such presentation and registration.

On a comparison of the photo enlargement of the disputed thumb impression on the Register No. 8, and the specimen left thumb impression of Ujagir Pandey, whereas P.W. 3 madan Mohan Kakkar, the private Expert of the plaintiff tried to show dissimilarity on the basis of alleged difference in the number of ridges between core and delta in the two, D.W. 5 M.N. Singh the private Expert of the defendant stated on the basis of the type, exit pattern of the ridges, location of the core and nine alleged similar ridges, that the disputed thumb impression on Register No. 8 tallies with the specimen left thumb impression of Ujagir Pandey. To resolve this controversy arisen from diametrically different reports of the private Experts, engaged by the parties, in pursuance of the directions of the Supreme Court, the opinion of the Government Expert from the Finger Print Bureau, U.P. Lucknow, was sought, and on a careful study of the same, the said Expert has vide his report dated 81019% stated that the thumb impression on the Register No. 8 being blurred and ridge characteristics being not available in reasonably sufficient number, any comparison of the same with the specimen or with the specimen thumb impression taken in the court or those on the deed of Will, will be hazardous. This Court has also on a careful perusal of the photo enlargements relied on by the two Private Experts and the Government Expert found that the ridge characteristics in disputed thumb impression are no clear enough to lead to any definite conclusion and the markings both by the P.W. 3 and the D.W. 5 are not objective, and the opinion of both these Experts deserves to be discarded. This appears to be a reason for the parties not to have lead any additional evidence in this context.

We thus, are left in this case to decide the questions in issue, on the basis of the direct and circumstantial evidence on record.

As already stated above the only evidence lead on the questions in issue by the plaintiff consisted of the statement of Ujagir Pandey as P.W. 1 to the effect that he did not visit the SubRegistrar''s Office, did not execute the saledeed nor put his thumb impressions thereon, he is still in possession over these plots and it is wrong to say that he has sold these plots to the defendant No. 1 for a sum of Rs. 12,000. Although the claims to have learnt about the sale deed 34 months after its date of execution, he does not state the person or source from whom he came to know. He admitted to be illiterate but stated that he can make his signature, and that he only makes his signatures and not thumb impression. He however, is contradicted by his own document, the will Deed, on which also, he made his thumb impression besides what is purported to be his signature, even his alleged signatures on the first page of the will appears to have been scored of. Further the alleged signature on the Will drastically differs from the tenor of the signatures on the plaint. Here also the signatures do not find place on pages 1 to 4. Although he claimed to be in cultivatory court, the same do not call for any interference, as also in the light of what has been found by this Court on a perusal of the evidence discussed above.

The objection to the sufficiency of evidence led by the defendant on account of nonproduction of the second marginal witness of the saledeed named Veera Ram is also not sustainable because under law a saledeed does not require attestation nor production of the attesting witnesses in the witness box (See Smt. Hans Rail v. Yasodanand, A.I.R. 1996 S.C. 761).

To sum up, therefore, the lower appellate court, in the opinion of this Court, has rightly come to the conclusion that the plaintiffappellant has failed to establish his contentions regarding the impugned sale deed being a forged document executed by any imposter, rather it has been established from the totality of evidence that the sale deed was duly executed by late plaintiff Ujagir Pandey, for consideration, and that the same has also been acted upon and possession also transferred to the vendee. The said court was justified in setting aside the findings recorded, and the decree passed by the trial court. This appeal deserves to be dismissed.

The appeal is accordingly dismissed with costs.