Rajeshwari vs M.S. Rajani

Anand Byrareddy, J.—Heard the learned Counsel for the appellants and the learned Counsel for the respondents.

It was the case of the plaintiff that the first defendant had entered into an agreement to sell the property bearing No. 5 formed in land bearing Survey No. 14, situated in Ayyanna compound, Satya Nagar, Nagannapalyam, M.S. Nagar Post, Bangalore - 560 033. The property, as described in the suit schedule, measured east to west 35 feet and north to south 24 feet. It was agreed to purchase the abovementioned property for a sum of Rs. 75,000/- and a sum of Rs. 25,000/- was paid as advance on 3.3.1994. The plaintiff was said to be the tenant in respect of a portion of the property and continued to be in possession of the same pursuant to the execution of the agreement.

It was the plaintiffs case that she was ready and willing to complete the sale transaction from inception. It was her further case that the defendants 2 and 3 were aware of the sale transaction between the plaintiff and the first defendant but, in order to deprive the plaintiff of the property, and acting in collusion with the first defendant, had created a false document as if the first defendant had agreed to sell the property in favour of defendants 2 and 3 for a sum of Rs. 70,000/- under an agreement dated 17.3.1994 and thereafter, had preferred a civil suit in O.S. No. 1919/1994 as if the plaintiff along with others was seeking to trespass on the property and as if the said defendants 2 and 3 were already in possession of the property. Though an ex-parte order of temporary injunction was granted, immediately on summons to the plaintiff, the plaintiff had appeared in the said suit and filed an application for vacating the injunction. Thereafter, defendants 2 and 3 also claimed that there was a sale deed executed in their favour, which the plaintiff contends would not be binding on the plaintiff, as they could not claim to be bona fide purchasers for value and that they were aware of the prior agreement in favour of the plaintiff. Therefore, the suit was filed on that basis seeking specific performance of the agreement.

Defendants 2 and 3 had filed written statement to deny the allegations in the plaint. It was admitted that the plaintiff was a tenant in possession of the suit property under defendant No. 1 and on the execution of the agreement to sell the same in their favour, the plaintiff became the tenant under them. And that there were two houses in the schedule property with vacant site and one Radhakrishnan was the tenant in respect of other house, which he had vacated without the knowledge of defendants 2 and 3 and had surreptitiously surrendered possession to the plaintiff in active collusion. The defendants had generally denied all the plaint allegations and reiterated that defendant No. 1 had agreed to sell the property in their favour and had executed the sale agreement and had received Rs. 7,000/- on 21.2.1994 and thereafter, had executed a general power of attorney and an affidavit dated 17.3.1994 in their favour. On receipt of the balance amount of consideration, handed over possession of the property to defendants 2 and 3 and had agreed to execute a sale deed as soon as there was relaxation of the ban on registration of the revenue sites, which had been imposed by the State Government and accordingly, had subsequently executed the sale deed on 6.6.1994 and therefore, defendants 2 and 3 had become the absolute owners of the property since 17.3.1994 and that the plaintiff was only a tenant in respect of one house and sought dismissal of the suit.

Defendant No. 1 had also filed written statement supporting the case of defendants 2 and 3 in denying the plaint allegations.

It is on these pleadings that the trial court framed the following points for its consideration:

"1. Whether the plaintiff proves that the defendant No. 1 agreed to sell the suit schedule property to the plaintiff for consideration of Rs. 75,000/- and executed an agreement of sale on 3.3.1994 by received earnest money of Rs. 25,000/-?

Whether the plaintiff proves that defendant No. 1 committed the breach of an agreement of sale?

Whether the plaintiff proves that she was ever ready and willing to perform his part of the contract?

Whether the plaintiff proves that defendants 2 and 3 are also liable to execute the sale deed along with defendant No. 1?

Whether the plaintiff is entitled to the relief of specific performance of the agreement of sale?

Whether defendants 2 and 3 prove that they are the bonafide purchasers of the suit property without notice of alleged agreement of sale in favour of the plaintiff?"

The court below has answered issues No. 1 to 4 in the affirmative and on issue No. 5, it was held that the plaintiff was entitled to specific performance of the agreement of sale. Issue No. 6 was held in the negative and judgment was passed in favour of the plaintiff. It is that which is under challenge in the present appeal.

The learned Counsel for the appellants would contend that primarily, the agreement of sale - Ex.P.1 executed by respondent No. 2 in favour of the appellants is admittedly prior in point of time as that of respondent No. 1 and the agreement of sale Exhibit.D.1 was followed by a general power of attorney Exhibit D.3 and an affidavit Exhibit D.2, both dated 17.3.1994 and it is on the basis of those documents namely, Exhibits D.1 to D.3 that a registered sale deed at Exhibit D.4 was executed in respect of the suit schedule property and therefore, the so-called agreement at Exhibit P.1 was no longer valid and could not be acted upon.

It is also contended that the Exhibit P.1 was not in respect of the suit schedule property. It is further contended that the agreement of sale in favour of the appellants was concocted and subsequent to Exhibit P.1 and P.2 and the circumstance that the appellants had filed a suit in O.S. No. 1919/1994 and did not mention the agreement of sale in that suit is an unfair finding. Mere non-mentioning of the agreement of sale by itself does not take away the effect of a subsequent sale deed executed in favour of the appellants.

The learned Counsel would further point out that the trial court failed to appreciate the sequence of events, which lead to the appellants filing a suit for possession in O.S. No. 3062/1997, which is pending trial. Further, the trial court has failed to club the said suit along with the present suit, though an application was filed under Rule 10 of the Civil Rules of Practice, read with section 151 of the Code of Civil Procedure, 1908 and has failed to defer judgment even after the suit in O.S. No. 3062/1997 was transferred from Court Hall No. 28 to Court Hall No. 13, wherein O.S. No. 2911/1995 was pending and proceeded to deliver judgment in undue haste, when the two suits ought to have been tried together and therefore, resulting in a miscarriage of justice. In the result, the said suit in O.S.3062/1997 being summarily dismissed, on the footing that there was already a decree in favour of the plaintiff, the respondent herein, has resulted in a gross miscarriage of justice.

It is further contended that the trial court had wrongly come to the conclusion that the appellants were not bona fide purchasers for value, for which there was no basis. On the other hand, it was the first respondent, who had actively colluded and committed fraud to deprive the appellants of their just due. The discrepancy insofar as the identification of the properties by their site numbers is admitted by the plaintiff before the trial court which has been glossed over. The alleged readiness and willingness of the plaintiff in completing the sale transaction was not established by disclosing source of income or the amount being readily available with the plaintiff and therefore, the mere assertion of the plaintiff having been accepted, would not have entitled her to any relief.

Insofar as the finger prints on the agreement of sale in favour of the plaintiff was seriously disputed and the signature of respondent No. 2 was denied, resulting in the court referring the said document for the opinion of a finger print expert, who in turn has filed a report after a detailed examination that the signatures were not of one and the same present on the said document. Notwithstanding such a finding, the court below has with reference to a judgment of this court in Parappa vs. Bhimappa, ILR 2008 Kar.184, has misinterpreted the said decision, in holding that the court in its discretion being enabled to overrule the opinion of an expert and arrive at its own conclusions, with reference to the disputed document and therefore has rejected the expert''s opinion offhand, which has further resulted in a miscarriage of justice and hence seeks that the judgment and decree be set aside.

The learned Counsel for the first respondent, on the other hand, would seek to justify the judgment of the trial court and would point out that insofar as the discrepancy as to the site numbers are concerned, namely, that the agreements of sale indicate that the property to be purchased was site No. 5, whereas the sale deed is in respect of site No. 5 and therefore the agreement of sale as well as the plaint indicating the suit property as being site No. 36, being different from the property that was purchased by the appellants, is explained by the circumstance that the site numbers were subsequently changed and by the time the sale deed was said to have been executed in favour of the appellants, the site number having changed to No. 5, does not result in any discrepancy and this aspect of the matter was thrown up before the trial court itself and it was dismissed as not being a significant circumstance, which would prove fatal to the case of the appellants. There was no dispute about the boundaries and hence the property was indeed one and the same.

Insofar as the circumstance that the appellants had filed a suit for possession in O.S. No. 3062/1997 and the fact of having filed an application seeking that the suit be clubbed with O.S. No. 2911/1995, out of which this appeal arises and the court not having tried the cases together, though O.S. No. 2911/1995 was transferred from Court hall No. 28 to 13, is a circumstance which ought to have been challenged by the appellants with reference to the order passed in O.S. No. 3062/1997 and could not be made a grievance in the present appeal. In any event, the present judgment and decree having addressed on the bona fides of the appellants and respondent No. 2 and having arrived at categorical findings, it does not result in a miscarriage of justice as sought to be urged. The result in any case would have been the same. Therefore, there is no infirmity in the proceedings.

Given the above material on record, insofar as issue No. 1 is concerned, whether the court was addressing the circumstance of the defendant No. 1 having denied the execution of the agreement of sale in favour of the plaintiff and the controversy raised being sought to be resolved by having the document referred to a finger print expert and the finger print expert, in turn, having opined that the person who has affixed his signature on Exhibits P.2(a), P-3(a) and S.1 to S.15, were not by the same person, the question is whether the court was yet justified in proceeding to form its opinion overlooking the experts opinion and arrive at a decision and the same is to be considered with reference to its ultimate reasoning that the court was at liberty to use its own discretion to affirm or differ from the expert opinion. The evidence of the expert is in the nature of opinion evidence and advisory in nature and it would not be conclusive and it is not substantive evidence and further, the court below having found that PWs.2 and 3, who were witnesses to Exhibit P.1, having deposed before the court that the first defendant had executed Exhibit P.1 in favour of the plaintiff and they having identified the signature of the first defendant and the first defendant, in turn, having admitted that he had executed a sale agreement Exhibit P.1 dated 3.3.1994 in favour of the plaintiff but, in respect of the property No. 36 and not in respect of the suit property, would conclusively prove that the document was indeed executed by the plaintiff and therefore, both the courts below having held the issue in favour of the plaintiff and in the affirmative, would have to be addressed.

Insofar as the finding of the expert opinion and the court having negated the same, would have to be viewed in the light of the opinion expressed in Parappa vs. Bhimappa, supra. In the said decision, the court was concerned with the evidentiary value of the Commissioner''s Report namely, of a finger print expert, to compare the thumb impression found in the will, that was in dispute with the thumb impression found in the registered sale deed, which was an admitted document. The finger print expert had returned an opinion that the thumb impression did not tally. The Commissioner however, was not examined. In that suit, addressing the evidentiary value of the Commissioner''s Report, the court has proceeded to consider the utility of the Science of thumb impression and its comparison to find out the execution of disputed documents and has referred to several authorities, including Henry on Finger Prints, IV Edition and Modi''s Medical Jurisprudence and Toxicology, XXII Edition, and the decision of the Supreme Court in Jaspal Singh vs. State of Punjab AIR 1979 SC 1708, wherein it was observed that the Science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The underlying principle is that the individual peculiarities of the patterns formed by the arrangement and distribution of the papillary and epidermal rights on the finger tips are absolutely constant and persist throughout life, from infancy to old age. There is absolutely no change of the markings of fingers between birth and death and even after death up to the time when the skin perishes through decomposition. It is equally well recognised that the patterns of no two hands resemble each other. Even the finger prints of twins are not similar. When the thumb impression on the disputed document is disputed, this science of finger prints aids and guides the courts in resolving the dispute, if an expert''s evidence is made available. Further having held so, this court has gone to hold that the court is at liberty to use its own discretion to affirm or differ from the expert opinion. The evidence of an expert is in the nature of opinion evidence and it is advisory in nature and it is not conclusive. It is not substantive evidence. These words have been borrowed by the trial court.

However, the difference lies in the fact that this court in Parappa''s case was dealing with the case with reference to the thumb impression. Where the trial court in this case was dealing with reference to the signatures. Therefore, the opinion expressed by this court in Parappa could safely be borrowed by the trial court, as signatures cannot be held on par with the thumb impression. Consequently, the court below having found that the document Exhibit P.1 was proved through the evidence of PWs.2 and 3, who were said to be the attesting witnesses and the first defendant or the respondent No. 2 herein, himself having admitted that he had executed Exhibit P.1, the agreement of sale in favour of the plaintiff would certainly justify the finding of the court below.

Insofar as issue No. 2, namely, whether defendant No. 1 had committed breach of agreement of sale is concerned, it is not in dispute that the agreement of sale Exhibit P.1 was never terminated by the defendant No. 1 or the respondent No. 2 herein. It is in the face of the said agreement that subsequent agreements had been executed by the said defendant. Therefore, there was certainly a breach of the agreement if the same was not terminated before executing a subsequent agreement in favour of the defendants 2 and 3 notwithstanding the reasoning adopted by the trial court on that short point, the issue would have to be answered against the appellants.

Insofar as the readiness and willingness of the defendant is concerned, it is observed by the court below that the defendant had not contended that he had never called upon the plaintiff to pay the balance sale consideration. The plaintiff was a tenant in respect of a portion of the suit property. Therefore, the readiness and willingness on the part of the plaintiff cannot be doubted and has answered the question in the affirmative.

The other issues namely, issues No. 4 to 6 are concerned, it is well settled that any transaction during the pendency of the suit would not be void on the face of it, but would be sub-servient to the decree in the suit if it pertains to the suit property. Therefore, issues having been answered in favour of the plaintiff cannot also be faulted.

Consequently, the appeal fails and is dismissed.