Skip to content


Sri Chand Vs. Smt. Ramrati Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1778 of 1969
Judge
Reported inAIR1980All294
ActsEvidence Act, 1872 - Sections 45; Code of Civil Procedure (CPC) , 1908 - Sections 100 to 101
AppellantSri Chand
RespondentSmt. Ramrati Devi and anr.
Appellant AdvocateR.K. Kakkar, ;K.C. Saxena, ;Manik Chand Misra and ;Bhagwati Prasad, Advs.
Respondent AdvocateS.N. Sahai and ;Jagdish Swarup, Advs.
DispositionAppeal dismissed
Excerpt:
civil - evidence - section 45 of evidence act, 1872 - value of expert opinion - genuineness of document - court has discretionary power to reject or accept the expert's opinion on basis of the circumstances. - - for arriving at this conclusion, the courts below have referred to various surrounding circumstances as well as the intrinsic evidence available on the face of the document itself......leaving the plaintiff who is the daughter of shrimati parbati aforesaid.4. the original defendant debi prasad, of whom the present respondent? are the heirs and legal representatives, was in possession of the house without any right or title. the cause of action arose on 21-10-1938 when shrimati parbati died and hence the suit for possession and damages.5. the suit was contested by devi prasad aforesaid. he asserted that he was in possession over the property in suit for over twelve years, and that the suit was barred by articles 142 and 144 of the indian limitation act, 1908.6. the defence was that mohan lal father of debi prasad had built the house in suit after obtaining permission of the municipal board in the year 1922. the last owner in the family of dayal was jaggu, his brothers.....
Judgment:

A.N. Varma, J.

1. This is a plaintiff's second appeal arising out of a suit for possession over a house.

2. Both the courts below have dismissed the suit, Hence this second appeal.

3. Shortly stated, the plaint case was that the house in suit was owned by one Dayal, He died leaving behind three sons, namely, Baiju, Jaggu and Hanuman, Baiju had separated from the family. As a result, the house went exclusively to Jaggu and Hanuman. The former predeceased the latter, Hanuman died sixty years back leaving his widow Shrimati Parbati as his sole limited heir. Shrimati Parbati died on 21-10-1938, leaving the plaintiff who is the daughter of Shrimati Parbati aforesaid.

4. The original defendant Debi Prasad, of whom the present respondent? are the heirs and legal representatives, was in possession of the house without any right or title. The cause of action arose on 21-10-1938 when Shrimati Parbati died and hence the suit for possession and damages.

5. The suit was contested by Devi Prasad aforesaid. He asserted that he was in possession over the property in suit for over twelve years, and that the suit was barred by Articles 142 and 144 of the Indian Limitation Act, 1908.

6. The defence was that Mohan Lal father of Debi Prasad had built the house in suit after obtaining permission of the Municipal Board in the year 1922. The last owner in the family of Dayal was Jaggu, his brothers Hanuman and Baiju having predeceased. The plaintiff was not the heir of Hanuman. Debi Prasad the great-grandson of Ganeshi, brother of Dayal was the next reversioner of Jaggu (vide the pedigree given in the judgment of the lower appellate court).

7. On the pleadings of the parties necessary issues were framed. The trial court held that Jaggu was the last male owner of the property in question. It further held that Debi Prasad was in possession over the house in suit right from the year 1922, and that the suit was barred under Articles 142 and 144 of the Limitation Act. In view of this finding, the suit of the plaintiff was dismissed.

8. Aggrieved by the decision of the trial court, the plaintiff filed an appeal. The lower appellate court has agreed with the findings of the trial court and dismissed the plaintiff's appeal.

9. Learned counsel for the appellant submitted only one point for my consideration. It was urged that the courts below have erred in law in rejecting Ex. 1, which purports to be a document executed by Debi Prasad, in which he admits the right of the plaintiff as the owner of the house in suit, and further agrees to vacate the house by 31-5-1940. This document is dated 4-9-1939. The courts below have rejected this document and have held that this document has been prepared for the present litigation and is not a genuine document executed by Debi Prasad. Learned counsel conceded that if the finding of the courts below with regard to the genuineness of this document is upheld, the plaintiff would have no case in view of the other findings of facts recorded by the courts below.

10. In regard to this document, certain salient facts noted by the courts below may be mentioned. The suit was filed in the year 1950. This document was, however, not mentioned in the averments made in the plaint, Debi Prasad, the original defendant died in 1956. After the death of Debi Prasad, the plaintiff sought to have the plaint amended seeking to introduce the plea that Debi Prasad by means of the aforesaid (document) dated 4-9-1939 admitted the title of the plaintiff and had asserted that he was in possession over the house in dispute as a licensee, and he would vacate the same by 31-5-1940. The amendment application was rejected, Thereafter, this document was sought to be filed as evidence in the case. The document was, however, permitted to be brought on the record. It is in these circumstances that this document found place on the record after the death of Debi Prasad.

11. The courts below have rejected the aforesaid document Ex. 1 as not a genuine document which could be said to have been executed by Debi Prasad. For arriving at this conclusion, the courts below have referred to various surrounding circumstances as well as the intrinsic evidence available on the face of the document itself. The courts below have referred to the fact thatMohan Lal father of Debi Prasad had submitted an application for permission to reconstruct the building as far back as 1922. Then the name of Debi Prasad appeared in the Municipal record throughout right from the year 1934. Besides, Debi Prasad filed a suit No. 0 of 1938 against Shrimati Parbati widow of Jaggu, the last male owner, according to the findings of the courts below, for declaration of his right in regard to this property. Shrimati Parbati filed a written statement admitting the claim of the plaintiff. The suit was decreed in favour of Debi Prasad. The documents relating to the aforesaid suit establishing the aforesaid facts are on the record and have been adverted to by the courts. The courts below have said that in the background of these facts, title of Debi Prasad over this house was firmly established and that it was inconceivable that he would surrender his rights in the manner it is said to have been done through Ex. 1. The lower appellate court has in addition examined the document very minutely and has arrived at the conclusion that it is not a genuine document. Learned counsel for the respondent also pointed out to me the circumstance that the scribe of the document was, significantly, one of the counsel appearing for the plaintiff in the suit.

12. The question whether Ex. 1 is a genuine document or not is indisputedly a pure question of fact. The conclusion which the courts below were called upon to darw from the various facts and circumstances would, therefore, also be a question of fact and not of law (vide Meenakshi Mills Ltd., Madurai v. Commissioner of Income-tax, Madras 0044/1956 : [1956]1SCR691 . Learned counsel, however, assailed the above finding of the courts below on the ground that the circumstances on which the courts below have placed reliance for holding that the document in question is not a genuine document, were not put to the expert by way of cross-examination and hence this circumstance ought not to be relied on. In support learned counsel for the appellants placed reliance on two decisions reported in AIR 1935 Lah 555 and : AIR1925Cal485 . There is no substance in this argument. The Expert examined gave evidence only with regard to the handwriting of Debi Prasad. He had nothing to do with the circumstances mentioned above on which the courts below have placed reliance. As-suming, however, that questions relating to the said circumstances were not put to the expert in cross-examination, that would not vitiate the finding of the courts below, Further, the argument is in substance one relating to the appreciation of the evidence on record which cannot be done in a second appeal.

13. Another argument raised on behalf of the plaintiff-appellant was that the courts below ought not to have assumed the role of an Expert. They should have relied on the opinion of the Expert and should not have taken upon themselves the task of finding out whether the document in question was executed by Debi Parasad. I do not agree with this submission. When the court permits the evidence of an expert to be brought on the record on a technical matter, it does not abdicate its function to judge for itself whether the opinion of an expert is correct or not on a matter at issue. In any case, in the present ease, the courts below have not assumed the role of an expert. They have gone by what plainly appealed to commonsense, having regard to the surrounding circumstances and the striking features appearing on the face of the document itself. There is, therefore, no substance in this argument either.

14. No other point was urged in support of the appeal.

15. The result is that the appeal fails and is dismissed. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //