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Siddheswar Prasad Singh Vs. Bhaba Sundari Pramanick Sha and anr. - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtKolkata High Court
Decided On
Case NumberS.A. No. 49 of 1972
Judge
Reported inAIR1978Cal4
ActsEvidence Act, 1872 - Sections 45 and 114; ;Code of Civil Procedure (CPC) , 1908 - Section 100
AppellantSiddheswar Prasad Singh
RespondentBhaba Sundari Pramanick Sha and anr.
Appellant AdvocateM.N. Ghosh and ;Sourindra Prasad Ghosh, Advs.
Respondent AdvocateS.C. Mitra, ;Paramesh Chatterjee, Advs. (for No. 1), ;A.K. Dutt, ;C.D. Roychowdhury and ;Dipankar Chakravarty, Advs. (for No. 2)
DispositionAppeal dismissed
Cases ReferredHigh School v. Board of Secondary Education
Excerpt:
- b.c. ray, j.1. this appeal is at the instance of the plaintiff, siddheswar prasad singh and it arises out of the judgment and decree dated 31st of july, 1971 passed by the additional district judge, first court, alipore in title appeals nos. 727 and 735 of 1970 (heard analogously and disposed by the same judgment) reversing the judgment and decree dated april 27, 1970 passed by the subordinate judge, 5th court, alipore in title suit no. 62 of 1966.2. the plaintiff appellant brought an action against the defendant no. 1, bhaba sundari pramanick sha and defendant no. 2. bamadhar sha kalwar for specific performance of the contract of sale of the suit property comprising of 8 cottahs of land with pucca structures and khola tile sheds executed by the defendant no. 1 in favour of the plaintiff.....
Judgment:

B.C. Ray, J.

1. This appeal is at the instance of the plaintiff, Siddheswar Prasad Singh and it arises out of the judgment and decree dated 31st of July, 1971 passed by the Additional District Judge, First Court, Alipore in Title Appeals Nos. 727 and 735 of 1970 (heard analogously and disposed by the same judgment) reversing the judgment and decree dated April 27, 1970 passed by the Subordinate Judge, 5th Court, Alipore in Title Suit No. 62 of 1966.

2. The plaintiff appellant brought an action against the defendant No. 1, Bhaba Sundari Pramanick Sha and defendant No. 2. Bamadhar Sha Kalwar for specific performance of the contract of sale of the suit property comprising of 8 cottahs of land with pucca structures and khola tile sheds executed by the defendant No. 1 in favour of the plaintiff on 1st of Ashar, 1373 B. S. corresponding to June 16, 1966 stipulating to sell the said property for the consideration of Rs. 7,000 free from alt suits or Rs. 6,000 with all encumbrances within Sravana, 1373 B. S. and received an earnest money of Rs. 4,000. There was also prayer for an injunction against the defendants Nos. 1 and 2 from interfering with any right of the plaintiff as well as restraining the defendant No. 2 from entering into the land and collecting rent from the tenants in the suit premises. It has been stated that suit property was let out to 3 tenants i. e. Satyanarayan Singh. Bachaia Keroin and Raj-kishore Singh and defendant No. 1 who Is admittedly the owner of the said property had litigations with her tenants. The defendant No. 1 and her husband so proposed to sell the suit property for a consideration of Rs. 10,000 only in view of the pending suits and also in view of the property being entirely in possession of the tenants. The plaintiff offered to purchase the same at Rs. 6,000 only with all the encumbrances and litigations. The plaintiff further offered to pay Rs. 7,000 only provided the defendant No. 1 would make the property free from all suits. Ultimately defendant No. 1 in consultation with her husband accepted the offer of the plaintiff and an agreement for sale was executed by the defendant No. 1 in favour of the plaintiff on 1st of Ashar, 1373 B. S. corresponding to June 16, 1966 agreeing to sell the suit property at Rs. 7,000 only free from all suits or at Rs. (5,000 with all encumbrances within Sravana. 1373 B. S. and received Rs. 4,000 as earnest money from the plaintiff for which a receipt was granted by her to the plaintiff. The plaintiff requested the defendant No. 1 and her husband to take steps for removal of the tenants. But the defendant No. 1 failed to take any steps and as such the plaintiff agreeing to purchase the suit property within the stipulated time with all encumbrances on Ashar 15, 1373 B. S., asked the defendant to hand over the title deeds to him. The defendant No. 2 on coming to know about the agreement tempted the defendant No. 1 to sell the suit property for higher price and defendant No. 1 and her husband demanded Rs 10,000 from the plaintiff but the plaintiff refused to accede to their said demand. Thereafter the defendant No. 2 approached the plaintiff to purchase the agreement and the receipt offering to pay a sum of Rs. 3,000 in the middle of Ashar, 1373 B. S. but the plaintiff refused. The plaintiff thereafter asked the defendant No. 1 to execute the sale deed on receiving the balance of consideration money of Rs. 2,000 The plaintiff along with one Kanta Prasad and another person, it was stated, went to Hooghly but could not trace out the defendant No. 1. On 27th of Sravana, 1373 B. S. the husband of defendant No. 1 disclosed to the plaintiff that the suit property had been sold away to some other person as the plaintiff was not willing to pay Rs. 10,000. The plaintiff thereafter searched the registration office and came to know that the defendant No. 1 sold the suit property to defendant No. 2. Hence, this action has been brought. This was numbered as Title Suit No. 62 of 1966.

2-A. The defendants Nos. 1 and 2 contested the suit and they filed separate written statements. The defence of tile defendant No. 1 was that she did not know the plaintiff and heard his name after receipt of the summons of this suit. She and her husband had no talks with the plaintiff for the sale of the suit property to him nor there was any agreement with the plaintiff to sell him the suit property at Rs. 6,000 or Rs. 7,000 as alleged. The defendant No. 1 also has not received Rs. 4,000 or any sum from the plaintiff as earnest money nor did she execute any agreement or receipt on receiving any such payment. The alleged agreement or receipt, it had been stated, was a forged one.

3. The defence of the defendant No. 2 hi his written statement was that he never tempted the defendant No. 1 by offering higher value for sale of the suit property to him nor he ever approached the plaintiff for purchasing the alleged agreement for Rs. 8,000 in the middle of Ashar or at any time. There was no agreement by the defendant No. 1 to sell the suit property to the plaintiff and even if there was any such agreement the defendant No. 2 being a bona fide purchaser for value without notice of the alleged agreement was not bound by the same.

4. On April 27, 1970, the Subordinate Judge, 5th Court, Alipore after hearing the parties held that the plaintiff proved that the defendant No. 1 contracted to sell the suit property to the plaintiff for Rs. 7,000 free from all suits or for Rs. 6,000 with all encumbrances. It was also held that the defendant No. 1 executed the impugned bainanama and received Rs. 4,000 as earnest money from the plaintiff. The defendant No. 2 was aware of the impugned bainanama before his purchase of the suit property from the defendant No. 1 and as such he was not a bona fide purchaser for value without notice of the bainanama. The suit was therefore decreed on contest with costs. The plaintiff had means to pay Rs. 4,000 as earnest money. The defendant failed to prove that the market price of suit property was far in excess of Rs. 7,000 as specified in the bainanama. Defendants were directed to execute and register a deed of sale in respect of the suit properly in favour of the plaintiff within one month from the date of the judgment in default the plaintiff would be entitled to get the said kobala executed and registered through court on behalf of the defendant.

5. The defendants Nos. 1 and 2 preferred two appeals against the said judgment and decree and these were numbered as Title Appeals Nos. 736 and 727 of 1970 respectively. These two appeals were heard analogously and the learned Additional District Judge, First Court, Alipore by his judgment and decree dated July 31, 1971, allowed both the appeals with costs on setting aside the judgment and decree of the trial Court and he held that it would not be proper to impute execution of the deed of agreement of sale on receipt of Rs. 4,000 by the defendant No. 1 merely because she denied to further cross-examine the P. Ws. 1 to 4 in addition to what had been done by the defendant No. 2. It was held that the alleged talk of sale of the suit property by the defendant No. 1 with the plaintiff did not actually take place. The agreement (Ext. 1) was held not to be a genuine document and the same was not executed by the defendant No. 1 on receiving Rs. 4,000 as earnest money from the plaintiff. It was further held that the document (Ext. 1) had been created for the purpose of getting hold of the suit house on payment of, Rs. 2,000 only. The defendant No. 2 was held to be a bona fide purchaser for value without notice of the bainanama (Ext. 1).

6. It is against this judgment and decree the instant appeal has been preferred by the plaintiff.

7. Mr. Manindra Nath Ghose, the learned Advocate for the appellant has contended that the learned Additional District Judge has approached the case from a wrong stand-point namely that the Subordinate Judge presumed that the plaintiff's case regarding the agreement to sell the suit property by defendant No. 1 to the plaintiff had been proved as the defendant No. 1 failed to cross-examine the plaintiff's witnesses on the defence case sought to be made out relying on the decision in Carapiet's case : AIR1961Cal359 . Mr. Ghose has contended that the Subordinate Judge duly considered the evidence of P. Ws. which clearly proved that the defendant No. 1 agreed to sell the suit property at the price stipulated and executed the agreement on receiving Rs. 4,000 as earnest money out of consideration money of Rs, 6,000. It has been also contended by Mr. Ghose that from the non-examination of the son of defendant No. 1 who IB conversant with the sale transaction as stated by defendant No, 1 in her deposition and the non-production of the account papers which are in the custody of defendant No. 1's son an adverse inference should be drawn that if the son of the defendant No. 1 had been examined and the account papers had been pro* duced it would have established the plaintiff's ease regarding the execution of agreement of sale of suit property to plaintiff by defendant No. 1 and the payment of the earnest money to the defendant No. 1 by the plaintiff. Mr. Ghose has also contended that the report of the handwriting expert which has been corroborated by the evidence of P.W. 2, the scribe and P.W. 1, the plaintiff and P.W. 3 who was present at the time of execution of the document by the defendant No. 1 clearly goes to establish that the signature on the agreement (Ext. 1) is the signature of the defendant No. 1. It has been submitted that even in second appeal if the court of appeal below misunderstood the real point for determination in arriving at a finding of fact this court can interfere with the findings of fact,

8. Mr. Syama Charan Mitter, learned Advocate for the respondent No. 1 has submitted that the court of appeal below did not approach wrongly in considering the judgment and decree of the court below. The lower appellate court has rightly held that the defendant No. 1 in her written statement stated her case specifically and In her deposition she had categorically denied to have had any talk of sale of the suit property with the plaintiff nor she agreed to sell the suit property at the alleged price of Rs. 6,000 with all incumbrances nor did she obtain the sum of Rs. 4,000 as earnest money from the plaintiff. She denied to have executed any agreement and receipt. The learned Additional District Judge on a consideration of the evidences held that there was no agreement to sell the suit property to plaintiff and the defendant did not execute the alleged agreement. The signature on the agreement was not the signature of the defendant No. 1 and the plaintiff had not the means to pay the earnest money and the payment of the same was not also proved. The price of the suit property is much more than what was mentioned in the alleged bainanama, The defendant No. 2 was held to be A bona fide purchaser for value of the suit (property without notice of the alleged agreement of sale. It has also been submitted that the image of the defendant No. 1's son was nowhere in the picture nor there is any evidence that her son had anything to do with the alleged agreement of sale. The account papers in the custody of the eon of defendant No. 1 relate to the excise shop. So from non-examination of the son by the defendant No. 1 and non-production of account papers by defendant No. 1 no adverse inference can be drawn against the defendant No. 1. Moreover, the plaintiff did not call for the production of the account papers from defendant No. 1 as required. There is no infirmity in the findings of the tower appellate court and as such this court will not interfere with the findings of fact in this jurisdiction. The court of appeal below has rightly held that the facts of the case are different from the facts of the case reported in : AIR1961Cal359 and as such the principles laid down there did not apply to this case.

9. The plaintiff's case as appeared from the plaint is that th' defendant No. 1 being in need of money to fight out litigations with the tenants of the suit property at first proposed to sell 5 cottahs of land in occupation of tenant, but subsequently she changed her mind and she and her husband proposed to sell the entire suit property in possession of the three tenants for Rs. 10,000. It is also the plaintiff's case that the plaintiff offered to buy the same for Rs. 7,000 free from suits or for Rs, 6,000 with all litigations. After discussions, with her husband defendant No. 1 agreed to sell the suit property to plaintiff for Rs. 7,000 free from suits or for Rs, 6,0(W with all incumbrances on 1st of Ashar, 1373 B- S-and in confirmation of the agreement for sale defendant No. 1 received Rs. 4,000 as earnest money admitting to sell the suit property within Sravana 1373 B, S. and executed a bainanama or receipt. The plaintiff reminded the defendant No. 1 on 15th of Ashar, 1373 B. S. to hand over the title deed to him. Defendant No. 2 on coming to now of the agreement tempted the defendant No. 1 to sell the suit property at a higher price and her husband so demanded Rs. 10,000 from the plaintiff as price of the property which the plaintiff refused to comply. Defendant No. 1 thereafter sold the property to defendant No. 2 for Rupees 14,000. It was also plaintiff's case that defendant No. 2 approached the plaintiff to purchase the agreement for Rs. 8,000 in the middle of Ashar, 1373 B. S. but the plaintiff did not agree. The husband of defendant No. 1 on 22nd of Sravana, 1373 B. S., disclosed that as the plaintiff did not agree to pay Rs. 10,000 the property was sold to someone else. It is necessary to consider how far the plaintiff had been able to prove his case.

10. It may be stated at the outset that 6th of April, 1970, was fixed for examination of the witnesses for the plaintiff. On April 4, 1970, the defendant No. 1 made a petition before the court praying for adjournment of the date of hearing on the ground that a new advocate had been engaged by her and the said advocate required some time for preparing the case. The said application was rejected by the Subordinate Judge and he proceeded with hearing of the said suit on the date fixed, that is, on 6-4-70. The defendant No. 1 was absent on that day and in presence of defendant No. 2. P. Ws. 1 to 4 were examined and they were cross-examined elaborately by the learned Advocate for the defendant No. 2. It also appears from the record that on April 7, 1970, the defendant No. 1 was present. The handwriting expert was examined and he was exhaustively cross-examined by the defendant No. 1. The defendant No. 1, however, declined to further cross-examine the P. Ws. 1 to 4 even though asked by the court as evident from the order No. 93 dated April 20, 1970. The reason is apparent. P. Ws. 1 to 4 have been exhaustively cross-examined by the defendant No. 2. Moreover, defendant No. 1 has categorically stated in her defence that she did not know the plaintiff nor she had any talk regarding the sale of the suit property with the plaintiff and she also denied to have executed the alleged agreement or receipt and also denied to have received Rs. 4,000 as earnest money. Of course, it has been stated by her in her deposition that her husband did everything regarding the written statement and she was ignorant of its contents. She also deposed that her husband conducted the negotiations for sale of the suit property. But there is specific denial of the defendant No. 1 in her deposition as to the execution of the alleged agreement and the receipt of the earnest money. In such circumstances the learned Additional District Judge is quite right in observing that this is not a case of making out the defence case by way of putting suggestions to the opponent's witnesses in course of cross-examination. The learned Additional District Judge was also right in holding that it would not be proper to hold that the agreement (Ext. 1) had been executed by the defendant No. 1 on receipt of Rs. 4,000 merely because she denied to further cross-examine the P.Ws. 1 to 4 In addition to what had been done by the defendant No. 2. The decision in : AIR1961Cal359 , A.E.G. Carapiet v. Derderian was rightly held to be not applicable to the facts of this case. That was a case for probate of a will executed by George Carapiet on 21-12-55. The application was filed by the testator's wife who along with the Mercantile Bank of India were appointed as executors and it was provided that a certain sum of money was to be given to the testator's sister and the remaining estate would come to the wife and she would not remarry. After her death the property would be delivered to the society named in the will for education of the orphans. There was no allegation that the testator was in such a bad state of health that he was unable to execute the will. The doctors of the nursing home where the testator remained for his treatment did not also say so. It is only the last witness for the opposite parties Rev. Venkata Ramiah who stated in his deposition that during his visit to the testator on 26-12-1955 he found the testator not in a sound physical and mental condition. This case was not made out before nor any such question was put in cross-examination to the doctors or to the propounder. It has been observed (at p. 362 of AIR):--

'Whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that it is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses.' We, therefore, unhesitatingly overrule the first contention raised by the learned Advocate for the appellant that the approach of the lower appellate court in deciding the appeal is wrong.

11. The next question that requires to be decided is whether the plaintiff has been able to prove satisfactorily the story of the alleged agreement of sale and the execution of the bainanama (Ext. 1) by the defendant No. 1 on payment of the earnest money of Rs. 4,000. It has been stated by the plaintiff, P.W. 1 in his deposition that in the first part of 1966 or in February/March, 1966, the talk of purchase between him and the defendant No. 1 and defendant No. 2 took place. Rajkishore knew it The talk took place in the house of Rajkishore. P.W. 4, Rajkishore Singh, stated that he could not say to whom the defendant No. 1 proposed to sell the disputed property. The talk of sale and purchase between the defendant No. 1 and her husband and the plaintiff took place not before April, 1966. He stated that he did not know on what date the price of the disputed property was settled. No outsider knew it. It may be mentioned in this connection that defendant No. 1 had litigation and trouble with her tenants including Rajkishore Singh, P.W. 4. This is the only evidence so far with regard to the talk of sale of the suit property and settlement of price. It is the plaintiff's evidence that Basudeb Manna, P.W. 2 who had a Photo binding shop wrote agreement (Ext. 1) from a draft prepared by the husband of defendant No. 1 and handed over to P W. 2 who is the owner of the picture shop and is not known to the defendant No. 1 before the dale of writing of this agreement. Basudeb Manna, P.W. 2 also stated that he came to know the plaintiff only three or four months before the execution of the agreement (Ext. 1) and that he did not see the defendant No. 1 or her husband before the date of execution of the the agreement (Ext. 1), He further stated that he was called by the plaintiff and he was asked by the defendant No. 1's husband to write out the document (Ext. 1) on the basis of a draft produced by the husband of the defendant No. 1. He could not say what happened to the draft. He also stated that that was the first and last occasion when he wrote out a document like exhibit 1 and he did not sign on the agreement (Ext. 1). P.W. 3, Kanta Prasad who was alleged to be present at the time of execution of the document stated that he had been running a grocery shop and the plaintiff used to purchase articles from the shop on credit and he also did not sign on the agreement (Ext. 1). P.W. 3 also admitted in his deposition that he was not aware of the contents of the agreement and he stated that one adhesive stamp was fixed on the agreement (Ext. 1). It is unbelievable that the husband of defendant No. 1 who had prepared the draft of the agreement instead of writing the agreement himself would entrust it to P.W. 2, Basudeb Manna, a stranger and an owner of a picture shop. Moreover, it is also unthinkable that a sum of Rs. 4,000 that is two-thirds of the consideration money had been paid by the plaintiff to the defendant No. 1 on the basis of an agreement not signed by the scribe nor signed by the witness P.W. 3, Kanta Prasad who is alleged to have witnessed the payment of the consideration money without getting the title deed? of the suit property. It is also strange that though the husband of the defendant No. 1 was present at the time of the alleged execution of the agreement (Ext. 1) and payment of the earnest money he was not asked to sign the agreement or receipt as a witness to such payment and execution, it is also evident from the deposition of P.W- 4 that no price of the disputed property was settled in his presence. Moreover, P.W. 4 stated that the talk of sale took place in April, 1966 whereas P. W. 2 stated that such talk took place in first part of 1966 or in February/March, 1966. Thus there is great discrepancy about the talk of sale of the suit property with the plaintiff and defendant No. 1 and her husband. The defendant No. 1 on the other hand, deposed that the plaintiff never approached her or her husband for any negotiation for negotiating the sale of the disputed property. She also stated that the plaintiff never went to inspect the suit property with her husband and she had no talk with the plaintiff that she would sell the suit property at Rs. 10,000 or Rs. 7,000. In her cross-examination the also stated that she did not see Rajkishore Singh. This being the state of evidence the learned Additional District Judge is well justified in holding that the 'alleged talk of sale of the suit property by the defendant No. 1 to the plaintiff did not actually take place. It is evident from the deposition of D.W. 1, defendant No. 1 that her son knew about the negotiations regarding the sale of the suit property with the defendant No. 2. As such non-examination of the son of the defendant No. 1 cannot lead to any adverse inference against the defendant No. 1 regarding the execution of the alleged agreement. The defendant No. 1 stated in her deposition that her son had an excise shop and many account papers were kept in connection with that business by her son. These account papers have no bearing with regard to the alleged transaction of agreement of sale with the plaintiff and so from non-production of these account papers no adverse inference can be drawn against the defendant No. 1. The learned Subordinate Judge was wholly wrong in drawing adverse inference from the non-examination of the defendant No. 1's son and from the non-production of the account papers without considering their relevance in the present case. Moreover, the account papers were not called for production by the plaintiff as required under the Act.

12. Regarding the payment of the earnest money of Rs. 4,000 there is a discrepancy between the deposition of P.Ws. 2 and 3 who are alleged to have witnessed the payment of the consideration money. P.W, 3 admitted in his deposition that he was unaware of the contents of the agreement. He further stated that the document was written and one stamp was pasted on the document. But it appears from the agreement that four adhesive stamps were pasted on it. The defendant No. 1 categorically denied to have executed the agreement and to have received the earnest money. Moreover, regarding the settlement of the alleged consideration money of RS. 7,000. P.W. 4 in his deposition stated that the alleged talk of sale and purchase by the defendant 1 and her husband went on with the plaintiff. On the other hand, he categorically stated that no price of the suit property was settled In his presence. He also stated that no outsider knew it. There was no other Witness to prove the settlement to the alleged consideration money. The court of appeal below has therefore rightly held that the plaintiff failed to prove satisfactorily the settlement of consideration money of the suit property at the price as alleged by the plaintiff. We have already mentioned that it is not possible to believe that the defendant No. 1 who prepared the draft would entrust P.W. 2, the scribe who is an owner of the picture shop and not known to the defendant No. 1 and her husband at any time to write out the agreement or receipt from the draft and the scribe and the witness P.W. 3, Kanta Prasad would not sign the draft though two-thirds of the consideration money was alleged to have been paid in their presence to the defendant No. 1 on the basis of the agreement or receipt nor the signature of the husband as a witness to the transaction was taken in the said document. These circumstances will spell doubt about the genuineness of the document (Ext. 1).

13. Strong reliance has been placed by the learned Advocate for the appellant on the decisions reported in 44 Ind App 98 : (AIR 1917 PC 6) Murugesam Pillai v. Manickavasaka Pandara where it has been held by their Lordships of the Privy Council that a practice has grown up in Indian procedure of those In possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the courts the best material for its decision. Adverse inference can be drawn against the defendants for non-production of these materials. This decision has been followed in : [1953]4SCR758 , Hiralal v. Badkulal. A diametrically opposite view has been taken in the case reported in : [1967]1SCR153 Ramrati Kuer v. Dwarika Prasad Singh and it has been held that no adverse inference can be drawn against the defendant respondent in the absence of any prayer by the appellant that accounts be produced.

14. We have already held that the account papers related to the excise business and as such their non-production cannot lead to any adverse inference agaist the defendant No. 1 in respect of the alleged agreement of sale of suit property. Moreover the plaintiff has not called for production of those account papers by defendant No. I. So in view of the above ruling of the Supreme Court no adverse conclusion can toe drawn against defendant No. 1.

15. The court of appeal below on a consideration of the evidence of the handwriting expert and also on a careful scrutiny of the signature on the receipt (Ext. 1) and other admitted signatures of defendant No. 1 held that the disputed signature In Ext. 1 was not the normal signature of the defendant No. 1 and the said signature appeared to be a laboured one. We do not find anything to differ from this finding of fact arrived at by the court of appeal below. It is well settled that the opinion of the handwriting expert cannot be taken as a substantive evidence unless the same is corroborated by other evidence. In : 1973CriLJ1187 Ram Narain v. State of Uttar Pradesh where it has been observed by the Supreme Court that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is Internal or external evidence relating to the document in question supporting the view expressed by the expert. The question in each case falls for determination on the court's appreciation of evidence. This decision followed the decision in AIR 1967 SC 778, State of Gujarat v. Vinaya Chandra Chhota Lal Pathi where it has been observed by Raghubar Dayal, J. (at p. 780 of AIR):--

'It has also been held that the sole evidence of an handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing.'

The decision in : 1973CriLJ1187 has been followed in a Bench decision of this Court reported in : AIR1976Cal224 Sunil Kumar Singh v. Life Insurance Corporation of India and it has been held that in spite of opinion of the expert the court is entitled to compare the disputed writing with the admitted writings. A decision as to the genuineness of the document cannot be founded solely on the expert opinion, the expert opinion must get support from other evidence so that it may be relied upon. In view of the above decisions the above finding of the court of appeal below on the question of the execution of the receipt or bainanama (Ext. 1) by the defendant No. 1 is not at all illegal or unwarranted.

16. With regard to the payment of the earnest money of Rs. 4,000 the plaintiff's case is that he obtained Rs. 1,500 from his father and he had Rs. 1,500 with him and he took loans of Rs. 500 each from P.W. 4, Rajkishore Singh and P.W. 3, Kanta Prasad. The plaintiff has stated that he has been employed as an Assistant Foreman in the Office of Chief Inspectorate of Small Arms. Ichapur and he used to draw about Rs, 950 per month as pay, allowances and overtime pay. Not a scrap of paper has been produced to prove his story of employment and his monthly emoluments. Though he stated that he maintained a bank account yet the same was not produced. There was also no evidence that he obtained Rs. 1,500 from his father. It is therefore, difficult to infer that the plaintiff had with him the said sum which was paid as earnest money. Moreover as has been observed by the court of appeal below it is against normal human conduct that the plaintiff would pay a considerable Bum of Rs. 4,000 as earnest money out of stipulated consideration without asking for and getting the title deeds of the suit property. In such circumstances we respectfully agree with the finding of the court of appeal below that the agreement (Ext. 1) was created by the plaintiff in collusion with P.W. 4, Rajkishore Singh, plaintiff's brother-in-law for the purpose to get hold of the suit property on payment of Rs. 2,000 only. This view is further fortified by the fact that on the evidence of P.W. 1 himself the price of Rs. 6,000 for 8 cottahs of land with pucca structures thereon is very low and that is why the property has been purchased by defendant No. 2 for Rs. 14,000, which appears to be reasonable and proper value We, therefore, hold that the story of payment of Rs. 4,000 as earnest money to the defendant No. 1 by plaintiff is a myth.

17. It has been contended on behalf of the plaintiff that the defendant No. 2 has notice of agreement of sale executed by defendant No. 1 in his favour prior to the purchase of the suit property by defendant No. 2 and as such defendant No. 2 is not a bona fide purchaser for value without notice of the said agreement for sale (Ext. 1). Plaintiff stated that defendant No. 2 made a proposal to purchase the agreement and receipt from him offering Rs. 8,000 but he did not accept the same. In cross-examination the plaintiff stated that he had nothing to show that defendant No. 2 wanted to purchase the agreement from him for Rs. 8,000. None was present then. The plaintiff also did not know when defendant No. 2 came to his brother-in-law, Rajkishore with a proposal to purchase. P.W. 4, Rajkishore stated that nobody was present when defendant No. 2 went to his shop to offer to purchase the proposal and he further stated that nobody was present when he reported the proposal to plaintiff. The defendant No. 2 stated that he did not go to the house of Rajkishore Singh before purchase. He denied that he ever intended to purchase the bainanama rights of the plaintiff. This being the state of evidence we unhesitatingly hold that the plaintiff has failed to prove the alleged prior knowledge of the defendant No. 2 of the agreement (Ext. 1). The defendant No. 2 is, as such, a bona fide purchaser for value without notice. We have held that the agreement (Ext. 1) was not a genuine document. We, therefore, do not find any infirmity in the findings arrived at by the court of appeal below. The decision in : [1959]1SCR1249 Kakumanu Pedasubhayya v. Kakumanu Akkamma where it has been observed by their Lordships of the Supreme Court that if the courts below misunderstood the real point for determination in arriving at a finding of fact, this court could interfere in second appeal with that finding does not apply to this case. Reference may be made in this connection to the decision reported in AIR 1959 SC 57 where it has been held that High Court has no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of relevant evidence. We have already found that the court of appeal below arrived at its finding on a due consideration and assessment of evidence on record and as such we have no jurisdiction to interfere with those findings of fact even if they are erroneous.

18. It has been contended on behalf of the appellant that the judgment of the court of appeal below is not a proper judgment of reversal inasmuch, as it has not controverted all the findings of the [trial Court. It is not necessary for the appellate court while reversing the judgment of the trial Court to set aside all the findings of the trial Court. It is sufficient if the material findings of the trial [Court are set aside by the appellate court. It is apt to refer to the decision reported in (1969) 73 Cal WN 328 Managing Committee of Victoria Girls' High School v. Board of Secondary Education where it has been observed by Bijayesh Mukherji, J. that it is not necessary that an appeal court must come to close quarters and meet each reasoning of the trial Court. So even if some reasons of the trial Court are not reversed, the appellate judgment cannot go down as not a proper judgment of reversal.

19. For the reasons aforesaid all the contentions raised on behalf of the appellant having failed the appeal is dismissed. The judgment and decree of the court of appeal below is hereby confirmed. In the circumstances of the case there will be no order as to costs. Let the records be sent down to the court below immediately.

N.C. Mukherji, J.

20. I agree.


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