Sardar Puran Singh vs Smt. Madhur Mohini And Others
2018 Latest Caselaw 1308 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

              						  Reserved on 21.5.2018
 
						         Delivered on 2.7.2018
 

 
Case :- SECOND APPEAL No. - 230 of 2004
 

 
Appellant :- Sardar Puran Singh
 

 
Respondent :- Smt. Madhur Mohini And Others
 

 
Counsel for Appellant :- H.N. Sharma,A.R. Dubey,Achint Ranjan Singh,Arun Srivastava,Arvind Srivastava,Manu Khare,N.K. Dubey,N.L. Dubey,N.L.Pandey,U.C. Mishra,V.C.Mishra
 

 
Counsel for Respondent :- Fazal Kareem Jafri,Sumati Rani Gupta
 

 
Hon'ble Siddharth,J.

Heard Sri Arvind Srivastava, learned counsel for the appellant and Sri Fazal Kareem Jafri, learned counsel for the respondents.

This is plaintiff's second appeal against the judgment and decree dated 10.01.1991 passed by Shri S.B. Singh, Second Additional Civil Judge, Saharanpur allowing the Civil Appeal No. 5 of 1987 and setting aside the judgment and decree dated 22.12.1996 passed by Second Additional Munsif, Saharanpur in Original Suit No. 379 of 1985, (Sardar Puran Vs. Jagdish Prasad).

Plaintiff instituted the suit praying for a decree of specific performance of contract of sale as per the agreement of sale dated 30.12.1971 executed by the defendant in his favour.

Plaintiff's case is that the defendant executed an agreement to sell dated 30.12.1971 of property in suit at the rate of Rs. 8 per square feet and Rs. 5 was paid as advance sale consideration; that plaintiff was given right to get the sale deed of disputed property executed whenever he desired in his favour or in favour of any other person; that thereafter Ceiling Act came into force and with effect from July 1972 registration of sale deed was stopped; that defendant needed money and therefore he requested plaintiff to pay him balance amount and after the permission is granted for execution of sale deed, he will execute the sale deed; that on 27.12.1974 defendant gave possession of suit property to the plaintiff and took balance sale consideration of Rs. 4259/- from him and duly executed receipt dated 02.04.1975; that in May, 1975 plaintiff included the suit land in his house situated towards its West and constructed a four feet high boundary wall and, therefore, this possession became complete over the suit property; that plaintiff believed the assurance of the defendant and sent many notices to him for executing the sale deed; that in February, 1985 bar of ceiling was removed but defendant didn't execute the sale deed; that in June, 1985, plaintiff fixed 14.08.1985 as the date for execution of sale deed and defendant assured that he will appear before Registrar and execute the sale deed but he did not turn up and the plaintiff recorded his attendance before the Registrar and on being convinced that defendant does not wants to execute the sale deed instituted the suit.

Defendant filed his written statement denying the plaintiff's case and the execution of any agreement to sell or receipt of any advance sale consideration or delivery of possession of the suit land to the plaintiff; that he denied receipt of any notice from plaintiff for execution of sale deed; that defendant further stated that he had a house near the disputed property which he has sold after permission from Ceiling Authorities and the purchaser is in possession; that he has no other property except the house sold by him; that plaintiff is not in possession over the suit property and suit is barred by the principles of estoppel and acquiescence; that plaintiffs has tried to take forcible possession of suit property in the name of Gurudwara and has put on flags, etc., and complaint to this effect was made to the Police; that plaintiff in collusion with the 'Granthis' of Gurudwara has forged an agreement of sell and on its basis he has instituted suit; that in case Court comes to the conclusion that disputed agreement to sell is a valid document, no right will accrue to the plaintiff since he has failed to get the sale deed registered within time fixed therein and he never expressed his readiness and willingness for the same; that disputed agreement to sell was never executed by defendant by his own free will and is the result of fraud and fabrication; that there is no description of property in the agreement regarding which agreement has been executed and therefore sale deed on its basis cannot be executed; that disputed agreement to sell is not effective and plaintiff wants to take undue advantage of the same and if the agreement is enforced, defendant would suffer more comparative hardship and prayed that the suit may be dismissed.

Trial court framed following issues on the basis of the pleadings of the parties-:

(1) Whether the defendant entered into agreement to sell dated 30.12.1971 and executed the same? If yes, then its effect?

(2) Whether plaintiff has paid the entire sale consideration for execution of sale deed to the defendant? If yes, then its effect?

(3) Whether plaintiff was always ready and willing to comply his part of the agreement? If yes, then its effect?

(4) Whether plaintiff is in possession over the disputed property after making construction thereon as per the agreement to sell? If yes, then its effect?

(5) Whether the alleged agreement to sell and receipt are without consideration and against law and result of fraud and fabrication, which cannot be enforced against the defendant.

(6) Whether suit is barred by time?

(7) Whether suit is not maintainable before this Court?

(8) Whether suit is barred by principles of estoppel and acquiescence?

(9) Relief?

Trial Court decided issue no. 1 holding that defendant executed agreement to sell dated 30.12.1971 in favour of plaintiff. Issue no. 2 was decided holding that defendant received the alleged amount of sale consideration and he duly executed the receipt of the same. Issue no. 4 was decided holding that plaintiff is in possession over the suit property after making construction thereon. Issue no. 3 was decided holding plaintiff entitled to get sale deed executed from the defendant. Issue no. 5 was decided holding that there was no fraud or fabrication involved in execution of agreement to sell. Issue no. 6 was decided holding that suit of plaintiff is not barred by time since the bar of ceiling came to an end in 1985 and suit was instituted within three years period of limitation provided for the same. Issue no. 7 was decided holding that the suit is maintainable before the Civil Court. Issue no. 8 was decided holding that suit is not barred by principles of estoppel and acquiescence. Issue no. 9 was decided holding that plaintiff is entitled to relief prayed and accordingly trial court decreed the suit of the plaintiff.

Aggrieved by the judgment and decree of the trial court defendant preferred a Civil Appeal No. 5 of 1987 before the Lower Appellate Court which did not framed any point of determination as per the Order 41 Rule 31 CPC decided the appeal point wise.

First point of argument raised on behalf of defendant-appellant before the Lower Appellate Court was whether the agreement to sell dated 30.12.1971, Ex.-24, document evidencing delivery of possession, Ex.-25 and receipt, Ex. 26 are valid documents. Lower Appellate Court has found that these documents have not been proved to be duly executed and has recorded the finding after considering evidence on record that the agreement to sell dated 30.12.1971 is an unregistered document when P.W. 2 has stated in statement about the same being registered. The Lower Appellate Court has examined the receipts regarding delivery of possession of the suit property and payment of Rs. 4259/- by plaintiff to the defendant and has found them to be unreliable. It has further found that entering into agreement to sell after paying Rs. 5 as sale consideration does not inspires confidence regarding the claim of the plaintiff. It is such a meagre amount that no one will believe it to be a just advance sale consideration.

The second issue regarding limitation has been decided by Lower Appellate Court referring to Article 54 of the Limitation Act and finding has been recorded that there was no time period fixed for execution of the sale deed. It has further recorded finding that there is no date mentioned by plaintiff in his plaint when defendant refused to execute the sale deed. Hence, the Lower Appellate Court has allowed the appeal of the defendant and has set aside the judgment and decree passed by the trial court.

This second appeal has been preferred by the plaintiff and it was admitted on 13.08.2010 on the following substantial questions of law:

"(a) Whether the Lower Appellate Court was justified in reversing the finding of execution of agreement to sale in favour of the plaintiff by the defendant on the ground that marginal witnesses are of the same community?"

"(b) Whether the Lower Appellate Court was justified in ignoring the expert opinion even though holding that only admitted signatures have been compared with the disputed signature?"

Heard the submissions of the counsel for the parties on the above substantial questions of law.

Lower Appellate Court has reversed the findings of the trial court regarding the execution of agreement to sell on number of grounds.

(1) The first ground for reversing the judgment of the trial court is that in all the three documents in dispute, agreement to sell dated 30.12.1971, receipt of delivery of possession dated 27.12.1974 and the receipt of payment of balance sale consideration dated 02.04.1974 witness is Amar Singh P.W.3, who is marginal/attesting witness and Ram Chandra Sahai is Advocate. It has been admitted by PW-2, plaintiff, that he is vice-president of all the Gurudwara Samities and PW-3, Amar Singh, is its member. Both of them are Sardar by community and PW-3 Amar Singh has come from Firozpur to Saharanpur for being witness. The factum of closeness cannot be ignored.

(2) All the three documents have been typed by Om Prakash, scribe.

(3) PW-2, plaintiff, mentioned that he and defendant had conversation regarding execution of agreement to sell of the disputed property on 29.12.1971 while PW-3, Amar Singh, has stated that conversation regarding execution of agreement to sell took place on 30.12.1971 near Bar Room of Collectorate. Therefore, there is contradiction in the statement of witnesses.

(4) Statement of PW-2, plaintiff, is that the measurement of the disputed property took place on 27.12.1984 and on the same date the receipt for delivery of possession was executed, while possession over the property was delivered to him one day ago. At the time of possession presence of Amar Singh and Ram Chandra Sahai was stated and receipt was stated to have been executed on the seat of Om Prakash. Contrary to this PW-3, Amar Singh, has stated that he was called from his office and Ram Chandra Sahai was sitting near Bar room. He met plaintiff after three years at the time of possession of the disputed property and the conversation regarding delivery of possession took place at about 11 A.M. on 27.12.1994. Defendant was demanding the balance sale consideration and plaintiff was stating that you execute the sale deed and give me possession. Thereafter, Amar Singh, defendant and plaintiff went on the spot. He did not take leave from the office and directly came to the Court. Lower Appellate Court found that there is contradiction in the statement of PW-2 and PW-3 since PW-2 stated delivery of possession one day prior to 27.12.1984 while PW-3 stated it to be on 27.12.1984 itself. It was further found by the Lower Appellate Court that there is no mention of the fact of delivery of possession one day prior to the date of execution of receipt dated 27.12.1984, in the receipt.

(5) Regarding the passing of consideration, the Lower Appellate Court has recorded finding that there is no evidence on record as to how the remaining amount of Rs. 4259/-, as balance sale consideration passed on to the defendant. Whether the amount was kept in house or the plaintiff withdrew it from the bank,what were the denominations of currency, etc., has not been proved by the plaintiff?

(6) Disputed agreement to sell dated 30.12.1971 is stated to have been registered by PW-2 in the presence of Amar Singh PW-3 Ram Chandra Sahai and Om Prakash while the Lower Appellate Court has found that the alleged agreement to sale is an unregistered document.

(7) PW-2 plaintiff has stated that in 1971 he was a contractor and was in a position to purchase property worth Rs. 50,000/-. If it was such then why he did not directly get the sale deed executed from the defendant has not been explained when at that time there was no prohibition regarding execution of sale deed by ceiling department.

(8) Lower Appellate Court has found that there is no evidence on record as to why defendant executed agreement to sell in favour of plaintiff and what was the need for the same. Moreover, after receipt Rs. 5 there was no justification for execution of an agreement to sell in favour of plaintiff. This does not inspires confidence, nor, it proves the need of the execution of such an agreement to sell on the part of defendant.

(9) Disputed agreement has been executed on 30.12.1971 and it is on record that defendant directed the plaintiff to purchase Stamp Paper on 29.12.1971 itself because he is going out of station and therefore there is no explanation as to how on 30.12.1971disputed agreement to sell was executed when the defendant was not in the town. Further finding has been recorded that plaintiff has failed to prove from where he purchased the Stamp Paper for execution of the disputed agreement to sale.

(10) Lower Appellate Court has found that the second page of the agreement to sell is folded at different places and is mutilated but the signature of the defendant is not broken on the page and therefore it appears that the signatures have not been made thereon on the same date as alleged.

(11) Lower Appellate Court has found from the statement of PW2 that he was a Government contractor and defendant was working under him and under his supervision as a contractor. Plaintiff was in a dominant position since he used to give report regarding completion of work and proper execution of work of the defendant and payment of defendant was released on his report. Defendant used to give applications, etc., to the plaintiff and therefore there was relationship of active confidence between the parties. PW2 has admitted that the financial condition of defendant was good and therefore there is no justification why he executed the agreement to sale after taking Rs. 5/- only from plaintiff as advance sale consideration. Lower Appellate Court has recorded the finding that there is possibility of misuse of the documents submitted by defendant by plaintiff during the course of their working for the purpose of fabrication of document for usurping the property.

Regarding first substantial question of law, that the marginal witness belongs to the same community, it is found that it was one of the considerations which found favour with the Lower Appellate Court and the entire judgment of reversed is not based on this finding. Therefore the substantial question of law is decided against the appellant holding that Lower Appellate Court has not reversed the finding of the trial court regarding execution of agreement to sell in favour of plaintiff by the defendant on this ground alone.

Regarding the second substantial question of law it is found that the plaintiff and defendant both adduced evidence of experts regarding signature of defendant on the disputed documents and it is settled law that the expert opinion cannot be considered in isolation of the other evidence on record. Expert opinion cannot be the sole basis of either decreeing or dismissing the suit. It has to be read alongwith entire evidence on record and this Court in the case of Tika Ram vs. Daulat Ram, 2013(8) ADJ 617 has held that the evidence of an expert is only an opinion and had to be considered along-with other evidences led in the suit as follows:-

"13. Evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and external evidence. It has to be considered along with other pieces of evidence. Which would be the main evidence and which is the corroborative one depends upon the facts of each case. An expert's opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to what extent, their views would be made to correspond with the wishes and interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgment becomes so warped by regarding the subject in one point of view, that, when conscientiously deposed, they are incapable of expressing a candid opinion.

14. When there are contradictory opinion of hand writing experts, it is always open to the Court concerned to form its opinion after careful consideration of expert's opinion as also document concerned. It is not uncommon where two experts employed by different parties gave opinion, heavily influenced by the interest of the party concerned who approach them and it is matter of great concern also that these experts, instead of adhering to their professional expertise with absolute impartiality, unfortunately lean and get influenced and biased by interest of the party, who approach and seek their opinion.

15. The deformity in the functioning of experts is not new. Historically also the Courts have come across it and made their observation. It is not uncommon where Experts' opinion used to get influenced by their closeness or otherwise relationship developed with the persons who receive their service.

16. In Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. & Ors. JT 2009 (12) SC 377 Apex Court considered the issue pertaining to expert opinion in a bit detail. In para 11, the Court has said:

"The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. The scientific question involved is assumed to be not with the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:

		i. that the expert must be within a 			recognized field of expertise 
 
		ii. that the evidence must be based 			on reliable principles, and 
 
		iii. That the expert must be qualified 			in that discipline." 
 

17. The Court has also said that in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study on the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge on the subject. Referring to this Court's decision in Mt. Titli Vs. Alfred Robert Jones AIR 1934 All. 273 the Court said that it is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. Again in para 15 of the judgment in Ramesh Chandra Agrawal (Supra), the Court said:

"An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly V. Dr. Sukumar Mukherjee and Ors) Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009."

18. It also referred to an earlier decision in The State (Delhi Administration) Vs. Pali Ram AIR 1979 SC 14 where the Court said :

"No expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials as put before him and the nature of question put to him"

and further in para 17 of the judgment in Ramesh Chandra Agrawal (supra) the Court said:

"In the Article "Relevancy of Expert's Opinion" it has been opined that the value of expert opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value." (emphasis added)

19. Musheer Khan @ Badshah Khan & Anr. Vs. State of Madhya Pradesh, AIR 2010 SC 762 is a very recent judgment where the Court has said:

"under the Evidence Act the word 'admissibility' has very rarely been used. The emphasis is on relevant facts. In a way relevancy and admissibility have been virtually equated under the Indian Evidence Act."

Further referring to the opinion of finger print expert in that matter it says, that, it is well known that the evidence of finger print expert falls under the category of expert evidence under Section 45 but it is also clear that this evidence of finger print expert is not substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record.

20. Lord Campbell in Tracy Perrage Case (1843) 10 CI & F 154 said that, being zealous partisans, their belief becomes synonymous with faith as defined by the Apostle, and it too often is but "the substance of things hoped for, the evidence of things not seen". He also said that, skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight may be given to their evidence.

21. Miller J in Middllings P Co. Vs. Christian, 4 Dillon 448 said,

"By own experienced both in the local courts and in the Supreme Court of the United States is, that whenever the matter in contest involves an immense sum in value, and when the question turns mainly upon opinions of experts, there is no difficulty in introducing any amount of them on either side."

22. It would further be useful to quote from Sarkar's Law of Evidence, 16th Edition, 2007 Vol. 1, page 1052:

"The infirmity of expert evidence consists in this that it is mostly matters of opinion and is based on facts detailed by others or assumed facts or opinion against opinion and experts are selected by parties by ascertaining previously that they will give an opinion favourable to the party calling them. Expert evidence is however, of value in cases where the courts have to deal with matters beyond the range of common knowledge and they could not get along without it, eg in matters of scientific knowledge or when the facts have come within the personal observation of experts."

23. The learned author on page 1053 (supra) also said, An expert is fallible like all other witnesses and the real value of his evidence consists in the logical inferences which he draws from what he has himself observed, not from what he merely surmises or has been told by others. Therefore in cross- examining him, it is advisable to get at the grounds on which he bases his opinion. There is special difficulty in dealing with the evidence of expert witnesses. Such evidence must always be received with caution; they are two often partisans- that is, they are reluctant to speak quite the whole truth, if the whole truth will tell against the party who had paid them to give evidence. At the same time such witnesses are in a position of advantage; for they have had that special training and experience which the judge and jury are without; and the absence of which renders necessary the presence of such witness. Expert witnesses are far too prone to take upon themselves the duty of deciding the questions in issue in the action, instead of confining themselves to stating fairly and clearly their real opinion on the matter.

24. In Gulzar Ali Vs. State of Himachal Pradesh, 1998 (2) SCC192 the Court observed that the observation of the High Court that there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. Many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them."

25. In Hari Singh Vs. Lachmi, 59 IC 220 the Court observed that the evidence of skilled witness, howsoever eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, howsoever confidently he may speak, is ordinarily a matter of mere opinion. Human judgment is fallible. Human knowledge is limited and imperfect. An expert witness howsoever impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests."

26. In Lalta Prasad Vs. Emperor 5 IC 355, the Judicial Commissioner, Oudh observed :

"Expert testimony derived from comparison of handwriting is no doubt very valuable as evidence corroborating the direct evidence if any upon the point, but it is only in rare cases that it can take its place."

27. A Single Judge of this Court also expressed the same opinion in Saqlain Ahmad Vs. Emperor AIR 1936 Alld. 165 observing :

"The value of the expert evidence depends largely on the cogency of the reasons on which it is based. In general it cannot be the basis of conviction unless it is corroborated by other evidence."

28. Hon'ble Subba Rao (C.J.) (as His Lordship then was) in Guntaka Hussenaiah Vs. Busetti Yerraiah AIR 1954 Andhra 39 said :

"The expert's evidence is only a piece of evidence. A Judge of fact will have to consider that evidence along with the other pieces of evidence. Which is the main evidence and which is the corroborative one depends upon the facts of each case."

(emphasis added)

29. In Magan Bihari Lal Vs. State of Punjab AIR 1977 SC 1091, the Court held that it is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a Handwriting Expert. This type of evidence, being opinion evidence, is by its very nature, weak and infirm.

30. The caution, the Court must exercise while considering opinion rendered by an expert is expressed in Murarilal Vs. State of M.P. AIR 1980 SC 531, where the Court held:

"But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'."

(Para 4)

"Reasons for the opinion must be carefully probed and examined. ... In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. ..."

(Para 11)

31. In State Vs. Kanhu Charan Barik 1983 Cr.L.J. 133 a Division Bench of Orissa High Court held :

"Evidence of experts after all is opinion evidence. The opinion is to be supported by reasons. The Court has to evaluate the same like any other evidence. The reasons in support of the opinion, if convincing, make the opinion acceptable. There is no place for ipse dixit of the expert. It is for the court to judge whether the opinion has been correctly reached on the data available and for the reasons stated."

(emphasis added)

32. In Forest Range Officer & others Vs. P. Mohammed Ali & others AIR 1994 SC 120, it was observed :

"The expert opinion is only an opinion evidence on either side and does not aid us in interpretation."

33. It would be prudent to quote the following passage from Taylor's Law of Evidence, page 1344, para 1877 about the admissibility of evidence of experts :

"Still as experts usually come with a bias on their minds to support the cause in which they are embarked, little weight will in general be attached to the evidence which they give, unless it be obviously based on sensible reasoning."

34. In Mt. Titli Vs. Alfred Robert Jones AIR 1934 All. 273, it was observed:

"The opinion of an expert by itself may be relevant but would carry little weight with a Court unless it is supported by a clear statement of what he noticed and on what he based his opinion. The expert should, if he expects his opinion to be accepted, put before the Court all the materials which induced him to come to his conclusion, so that the Court, although not expert, may form its own judgment on those materials. ... The mere mention that certain kind of tests knows as Binet and Simon tests were applied and certain results were obtained, might be relevant as piece of evidence but would not be conclusive."

(emphasis added)

35. In Palaniswamy Vaiyapuri Vs. State AIR 1968, Bombay, 127, a Division Bench of Bombay High Court in para 11 of the judgment said :

"The opinion of an expert must be supported by reasons and it is the reasons and not ipse dixit which is of importance in assessing the merit of the opinion."

36. In Sita Nath Basak Vs. Mohini Mohan Singh AIR 1924 Cal. 595, a Division Bench of Calcutta High Court observed that in the matter of infringement of copyright, the Court should be reluctant to sit as an expert to decide the question of infringement of copyright and the proper course, in ordinary circumstances, is to get the opinion of experts. This was explained in Government of West Bengal Vs. Nitya Gopal Basak & others 1985 CRI.L.J. 202 by a learned Single Judge of Calcutta High Court that the above view was expressed primarily on the ground that the Court would have to take great pains and would have to waste its valuable time to ascertain how far the piracy extended and it was desirable therefore to seek opinion of expert to compare the works and to ascertain the details to avoid excessive expenditure of time and labour. It was also pointed out that s uch a course was also necessary as the Court might not be conversant with the alphabets of the book.

37. In the context of opinion of Handwriting Expert, in Fakhruddin Vs. State of Madhya Pradesh AIR 1967 SC 1326, the Court held that the opinion of Handwriting Expert though is relevant in view of Section 45 of the Evidence Act but that too is not conclusive. Reliance was placed on earlier decisions in Ram Chandra Vs. State of Uttar Pradesh AIR 1957 SC 381 (at page 388) and Ishwari Prasad Misra Vs. Mohammad Isa AIR 1963 SC 1728 where it was observed that expert evidence as to handwriting is an opinion evidence and it can rarely, if ever, take the place of substantive evidence. It cannot be conclusive because it is after all opinion evidence. In para 11 of the judgment in Fakhruddin (supra), the Apex Court further observed, where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.

38. In re B. Venkata Row (1913) 36 Mad. 159 a passage from Dr. Lawson's work on the "Law of Expert and Opinion Evidence" was quoted, which reads :

"The evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. It must be confessed however that it is of the lowest order of evidence or of the most unsatisfactory character. We believe that in this opinion experienced laymen unite with the members of the legal profession. Of all kinds of evidence admitted in a Court this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence."

(emphasis added)

39. This was followed in Indar Datt Vs. Emperor AIR 1931 Lahore 408. A Similar observation was made by Division Bench of this Court in Srikant Vs. King Emperor (1905) 2 ALJ 444 and Kali Charan Mukerji Vs. Emperor (1909) 9 Cr.L.J. 498.

40. In Sudhindra Nath Vs. The King AIR (39) 1952 Cal. 422, it was observed :

"We are now left with the evidence of identification by the hand-writing Expert. With regard to this class of evidence, it is a rule of law that it is extremely unsafe to base a conviction upon the opinion of hand-writing experts. Without substantial corroboration; because it is well known that a comparison of hand-writing as a mode of proof is always hazardous & inconclusive, unless it is corroborated by other evidence."

(emphasis added)

41. In Perumal Mudaliar Vs. South Indian Railway Company Ltd. AIR 1937 Mad. 407 the manner of recording opinion of expert was considered and a Single Judge (Hon'ble Beasley, C.J.) said :

"The evidence of experts must be given in the ordinary way. Subject to certain exceptions- those exceptions being amongst others, the certificates of the Imperial Serologist touching the matter of bloodstains and of the Chemical Examiner, which are made admissible in evidence by themselves-it is quite obvious that the opinion of an expert must be given orally and that a report merely or certificate by him cannot possible be evidence. Unless he goes into the witness box and gives oral evidence, there can be no cross examination of the expert at all."

(emphasis added)

42. In Haji Mohammad Ekramul Haq. Vs. The State of West Bengal, AIR 1959 SC 488 the Court held that an opinion of expert unsupported by any reason is not to be relied on.

43. In The Forest Range Officer and others Vs. P. Mohammed Ali and others, AIR 1994 SC 120 the Court said:

"The expert opinion is only an opinion evidence on either side and does not aid us in interpretation."

(para 8)

44. Who an expert witness would be, has been considered in State of Himachal Pradesh Vs. Jai Lal and others, AIR 1999, S.C. 3318 and it says:

"An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice; or observations; and the must have a special knowledge of the subject."

(para 13)

"Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject."

(para 17)

"18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions."

"19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination."

(emphasis added)

45. In Murari Lal Vs. State of Madhya Pradesh, 1980 SCC (Cri) 330, it was held that the Court itself can compare writings since it is so enabled vide Section 73 of the Evidence Act The Expert's opinion only act as an aid to the Court and not binding on it. In absence of reliable Expert's opinion or no opinion, the Court can seek guidance from authoritative text books, own experience and knowledge.

46. To the same effect is the decision in Lalit Popli Vs. Canara Bank and others (2003) 3 SCC 583.

In view of the above consideration it is clear that the second substantial question of law framed in this appeal requires to be decided against the plaintiff-appellant since merely on the basis of expert evidence suit of the plaintiff-appellant cannot be decreed.

In view of the answers of the above substantial questions of law the second appeal fails and is hereby dismissed with costs. The judgment of the lower Appellate Court is confirmed.

Order Date :- 2.7.2018

Rohit/Atul kr. sri.