Joseph Antoine Marie Michael vs Selin Mary

R. Mala, J.—Civil Revision Petition is filed against the fair and decretal order dated 17.07.2014 made in I.A. No. 80 of 2013 in O.S. No. 48 of 2007 on the file of the III Additional District Court, Pondicherry.

At the time of admission, argument of the learned counsel for the revision petitioners is heard in length.

The respondent herein as a plaintiff filed a suit for declaration of title and recovery of possession and also injunction restraining the defendants/revision petitioners not to alienate the suit property stating that the plaintiff purchased the suit property from the defendants, who are in possession as a permissive occupants and since they have not handed over the possession to the plaintiff, the plaintiff revoked the permission and filed the suit. The revision petitioners/defendants filed a written statement and contested the same stating that they admitted the signature in the sale deed. However, it was stated that they have executed the sale deed only for mortgaging the property by depositing the title deeds.

During pendency of the suit, the defendants filed an application in I.A. No. 333 of 2010 for sending the sale agreement to compare with the admitted signature of the defendants, which was dismissed, against which, the revision petition is preferred and the same was allowed and on that basis, I.A. No. 129 of 2012 was filed to appoint an Advocate Commissioner for comparison and furnishing expert''s opinion. Advocate Commissioner was appointed and the document has been sent for Forensic and Science Department and the handwriting expert was examined as C.W.1 and during his cross-examination, the defendants came to know that C.W.1 has not followed the procedure while comparing the document, therefore, the defendants came forward with the application in I.A. No. 80 of 2013 for superseding the report in Ex.X1 and to depute another handwriting expert for examination of the document. The trial Court, after hearing the objection raised by the plaintiff, dismissed the application, against which, the present revision petition is preferred by the defendants/revision petitioners.

Learned counsel for the revision petitioners raised the following points for consideration:

(i) The defendants admitted the signature in the sale deed dated 19.05.2005, but he has not executed the sale agreement dated 28.04.2005, which was alleged to be entered into between the first defendant and plaintiff.

(ii) Even though the document was stated as sale deed, the revision petitioners herein are the French National and they have not well acquainted with Tamil, as if he executed mortgage by deposit of title deeds, the sale deed came into existence. To prove the sale deed, the plaintiff created the sale agreement dated 28.04.2005. Signature in the sale agreement dated 28.04.2005 is not belonging to the first defendant and to prove the same, the defendants filed an application, in which, the document was sent for comparison and the handwriting expert was examined as C.W.1 and his report was marked as Ex.X1. But C.W.1/handwriting expert has not followed the procedure while comparing the disputed signature with the admitted signature. As soon as the handwriting expert''s report filed, the defendants filed objection and after examination of C.W.1, he filed the present application. But the trial Court without considering the above aspect dismissed the application. Therefore, he prayed for allowing the revision petition.

Considering the submissions made by the learned counsel for the revision petitioners and perused the typed set of papers.

The respondent herein as a plaintiff filed a suit for declaration of title and recovery of possession and also injunction restraining the defendants not to alienate or encumber the suit property stating that the property was purchased by the first defendant on 16.09.1992 and the first defendant entered into a sale agreement with the plaintiff on 28.04.2005 and in pursuance of the same, the plaintiff obtained the sale deed on 19.05.2005 and at that time, the defendants sought for time to vacate the premises and the plaintiff has granted permission. Since the defendants are under the permissive occupation in the suit property from 19.05.2005 and they are not handed over the possession to the plaintiff, the plaintiff revoked the permission and filed the suit for the above said relief.

The defendants/revision petitioners filed the written statement stating that they are the owners of the suit property and they have no intention to sell the suit property and they have not entered any sale agreement with the plaintiff. The sale deed came into existence as if it was mortgaged by deposit of title deeds and to prove that the sale agreement did not contain his signature, they filed the application.

Whether the sale deed dated 19.05.2005 is a sale deed or it was created for mortgaging the property by depositing of title deeds have to be decided after letting oral and documentary evidence before the trial Court. Even if the Court comes to the conclusion that the sale agreement is a fabricated one, it will not improve the case of the plaintiff. Furthermore, once already on the instance of the defendants, the document was sent for handwriting expert''s opinion and report has been received, for which, the objections have been filed by the defendants. The Scientific Officer, who compared the document, was examined as C.W.1. The learned counsel for the revision petitioners has drawn attention of this Court through some portions of the cross-examination of C.W.1 to prove that she has not followed the procedure while comparing the document. In my view, it will not be the reason for superseding the handwriting expert''s report and issue summons to the Director, Department of Forensic Science and Laboratory and to depute another handwriting expert for comparing the signature of the first defendant.

Considering the aforestated circumstances of the case, I am of the view, the trial Court rightly held that the suit is of the year 2007 and the defendants filed the objections to the handwriting expert''s report on 20.09.2011. The defendants kept quite nearly two years and came forward with the application in the year 2013 only with a view to drag on the proceedings that too after examination of C.W.1 on 15.10.2012 and it was numbered in the year 2013. It clearly shows the intention of the defendants to drag on the proceedings. It is well settled dictum of the Apex Court that handwriting expert''s opinion is not a conclusive proof. Therefore, I am of the opinion, the impugned order passed by the trial Court does not warrant any interference and the civil revision petition is dismissed as devoid of merits.

In the result, the Civil Revision Petition is dismissed after confirming the fair and decreetal order dated 17.07.2014 made in I.A. No. 80 of 2013 in O.S. No. 48 of 2007 on the file of the III Additional District Court, Pondicherry. However, the trial Court is directed to dispose of the suit within three months from the date of receipt of a copy of this order, since C.W.1 was examined.