Y. Nagayamma vs Y. Satyanarayana
2021 Latest Caselaw 3210 AP

              HON'BLE SRI JUSTICE M. VENKATA RAMANA

                  SECOND APPEAL No.1134 of 2005


JUDGMENT:

The defendants in O.S.No.516 of 1999 on the file of the Court of

learned III Additional Junior Civil Judge, Visakhapatnam, are the

appellants.

2. The respondent laid the suit for permanent injunction against

them to restrain from interfering with his peaceful possession and

enjoyment of the plaint schedule property, which is stated to be a hut

bearing door No.50-9-2, Seethammapeta, Visakhapatnam.

3. The suit was decreed on 27.02.2004 by the judgment of the trial

Court in favour of the respondent and against the appellants. A.S.No.104

of 2004 was preferred by the appellants on the file of the Court of learned

Principal District Judge, Visakhapatnam, against this decree and

judgment. They were confirmed by the decree and judgment dated

16.05.2005 in the appeal.

4. Therefore, the appellants have presented this second appeal.

5. The parties are closely related. Sri Yeduroddi Sanyasi, is the

husband of the first appellant. The appellants 2 and 3 are the brothers of

the first appellant. All of them are children of Sri Muvvala Chinnaiah. Sri

Yeduroddi Sanyasi died on 17.07.1998. Sri Muvvala Chinnaiah

predeceased him. Sri Yeduroddi Sanyasi was working in Visakhapatnam

Port Trust. Similarly, the appellants 2 and 3 were working for

Visakhapatnam Port Trust. The respondent by the date of the suit, was

working in Hindusthan Zink Limited, at Visakhapatnam. The appellants 4 MVR,J S.A.No.1134 of 2005

and 5 though married during the lifetime of their father, were living at

Seethammapet, Visakhapatnam.

6. The case of the respondent is that his father about forty years

prior to the institution of the suit, migrated to Visakhapatnam from

Yeduroddupalem and occupied the plaint schedule property, which was

then a vacant site of 100 square yards and raised a hut. It is the further

case of the respondent that during lifetime of their father, all the

members of the family, viz., the appellants 1, 4 and 5 and he were living

in this house, where marriages of the respondents 4 and 5 were also

performed. He specifically claimed that his father executed an

unregistered Will in his favour on 08.12.1992 bequeathing the plaint

schedule property, which then consisted of a tiled house, which he was in

possession and enjoyment by the date of the suit and that the appellants

tried to interfere with his peaceful possession and enjoyment without any

manner of right. Thus stating, the respondent laid the suit against the

appellants.

7. The case of the appellants is that an extent of 231 square yards

that included the plaint schedule property originally belonged to Sri

Muvvala Chinnaiah and that it included the property to immediate north of

the plaint schedule property, which is bearing Dr.No.50-8-31. They further

stated that about 40 years ago, Sri Muvvala Chinnaiah permitted Sri

Yeduroddi Sanyasi as a licencee to stay along with his family in the plaint

schedule property and that upon the death of Sri Muvvala Chinnaiah, the

second appellant permitted him to remain in that house as a licencee.

They further stated that the respondent used to live in a rented house

bearing Dr.No.50-28-10, Seethammapeta, Visakhapatnam, with his family MVR,J S.A.No.1134 of 2005

after his marriage in the year 1979 and that he was never in possession or

enjoyment of the plaint schedule property at any time. Thus, they

asserted that the appellants 2 and 3 are the absolute owners of the said

property upon demise of their father and further denied the Will dated

08.12.1992 set up by the respondent. Thus, they resisted the claim of the

respondent.

8. Basing on the pleadings, the trial Court settled the following

issues for trial:

"1. Whether the plaintiff is entitled to permanent injunction as prayed for?

2. Whether the suit filed for permanent injunction without seeking the relief of declaration, is not maintainable?

3. To what relief?"

9. The parties went to trial. The respondent examined himself as

P.W.1, attestor to Ex.A1 Will being P.W.2 and another as P.W.3 in support

of his contention, while relying on Ex.A1 to Ex.A20. On behalf of the

appellants, D.W.1 to D.W.3 were examined, who are appellants 2, 3 and 4

respectively. They also examined D.W.4, who was then an employee in

Visakhapatnam Port Trust, who produced Ex.X1 to Ex.X3. The appellants

also relied on Ex.B1 to Ex.B6 in support of their contention.

10. Upon the evidence and the material, learned trial Judge

accepted the contention of the respondent rejecting the defence and

granted relief of permanent injunction. Learned appellate Judge on

reappraisal of the evidence and material upon an elaborate discussion,

confirmed the findings of the learned trial Judge in his judgment and thus

held in favour of the respondent.

MVR,J S.A.No.1134 of 2005

11. Sri S.Rajan, learned counsel for the appellants and Sri Koka

Srinivasa Kumar, learned counsel for the respondent addressed arguments

in this second appeal.

12. This second appeal was admitted on the following substantial

questions of law.

"1. Whether the conclusions arrived at by the courts below

to the effect that the appellants did not take any steps to

send the disputed Ex.A1 Will to an expert is sustainable on

facts in view of the record of proceedings in I.A.No.1694 of

2003 before it?

2. Whether in a suit for injunction simplicitor, the appellate

Court can dwelve on the genuineness or otherwise of Ex.A1

Will and return a conclusive finding thereon as though the

suit is one for declaration and thereby entirely prejudicing

the case of the appellants?

3. Whether the task undertaken by the appellate Court in

comparing the signature appearing in Ex.A1 Will with that

of the signatures appearing in Ex.X1 to Ex.X3 is permissible

under law?"

13. These substantial questions of law are in relation to proof of

Ex.A1 unregistered Will propounded by the respondent mainly.

14. Incidentally, the claims set forth by the parties require

consideration in as much as the suit is one of injunction simplicitor, where

the burden of proof rests with the plaintiff to establish his claim, who MVR,J S.A.No.1134 of 2005

cannot afford to rely on any weakness or latches in the defence set up by

the defendants.

15. Predominantly, the assertion of the respondent is based on

possession of the plaint schedule property, which he alleged that he

gained from his father by means of Ex.A1 unregistered Will. He also

relied on the testimony of P.W.3, the effect of which was elaborately

discussed by the learned appellate Judge.

16. The respondent also relied on Ex.A4 to Ex.A20 in proof of

possession of the plaint schedule property. Undisputedly, Ex.A4 to Ex.A11

electricity bills and Ex.A12 to Ex.A20 telephone bills that stand in the

name of the respondent related to the period of post institution of the suit

(the suit was instituted on 25.02.1999). The Courts below accepted Ex.A4

to Ex.A20 favouring the respondent.

17. Learned appellate Judge while referring to nature of these

documents, as well as the contentions advanced on behalf of the

respondent at the trial, observed that unless the respondent was in prior

possession before filing the suit, it would not have been possible within a

short time of 8 years 9 months to build up electricity bills and telephone

bills. Learned appellate Judge also observed that though Ex.A4 to Ex.A20

could be discarded as the documents subsequent to the filing of the suit,

the possession of the respondent over the plaint schedule property,

cannot be assumed to have taken place all of a sudden. When the

respondent is categorically saying that he has been in possession of the

property for over 50 years and when there is no contradictory evidence to

show that the respondent was residing elsewhere and more particularly,

when the defendants 4 and 5 are shown to be married and their husbands MVR,J S.A.No.1134 of 2005

belong to different places, away from the plaint schedule property, the

appellate court held that they cannot be presumed to have possession of

the plaint schedule property. These observations are further that there is

absolutely no scrap of paper available with the appellants 4 and 5 to show

their possession and enjoyment of the plaint schedule property just prior

to the filing of the suit to non-suit the respondent holding that he was not

in possession of the property till just prior to the filing of the suit.

18. These observations apparently were recorded unmindful of

other material on record.

19. The respondent as P.W.1 deposed that the first appellant, who

is his mother is staying with him in the plaint schedule property. P.W.3,

whose testimony in fact totally gave different dimension to the case of the

respondent also stated in cross-examination that the 4th appellant is

residing in the disputed property and that the 5th appellant is living in the

neighbouring property as a tenant. He also stated that the first appellant

is residing in the disputed property.

20. The evidence adduced by the respondent himself is to that

effect making out that the appellants 1 and 4 have been living in the

plaint schedule property. When the respondent sought relief of permanent

injunction against them professing that they interfered with his alleged

possession and enjoyment of this property that gave him a cause of action

to institute the suit, it is manifest that the observations of the learned

appellate Judge stated above are farfetched and are on the verge of

perversity.

MVR,J S.A.No.1134 of 2005

21. When the documentary proof relied on to make out possession

of the property by the respondent did not reflect the situation on the eve

of the suit, recording these observations by the learned appellate Judge,

ignoring the statements of the witnesses of the respondent including

himself, de'hors their consideration is nothing but reflective of perverse

reasoning.

22. Further, when the relief of permanent injunction is

discretionary nature and the party, who requests such relief should

approach the Court with clean hands, the evidence on his behalf indicated

that the respondent suppressed the fact that one of his sisters has been

residing in the suit property while it is his version that his mother is living

in that property. Specific cause of action set out by him in the suit is

against them in relation to possession and enjoyment of the plaint

schedule property, which, from the evidence adduced by him is clearly

pointing out that it is false, even to his knowledge. Thus, approach of the

respondent for such relief is questionable and with unclean hands,

disabling him to have this discretionary relief. These factors were not at

all considered by the learned trial Judge as well as the appellate Judge to

hold that the appreciation of evidence on record by both the Courts below

is not only improper but also has lead to manifest denial of justice.

23. The testimony of P.W.3 Sri Ommi Sanyasi Rao gave out that

survey No.19, where the plaint schedule property is located, of

Seethamma peta, Visakhapatnam belonged to one Sri Tiyyala Ramasarma

and was a part of Inam land. He further claimed in his testimony that his

father Sri Sanyasi Naidu was in occupation of this land as a permanent

Kouldar (Permanent Tenant), who was giving away small extents of land MVR,J S.A.No.1134 of 2005

in the nature of gifts, permitting the donees to occupy. Thus, he claimed

that the father of the respondent, when migrated from his village about

40 years ago, his father allotted him an extent of 100 square yards of

gramakantam land and that the father of the respondent constructed a

thatched hut therein. Except his oral assertion, no documentary proof

was laid on behalf of the respondent to support the version of P.W.3-Sri

Ommi Sanyasi Rao.

24. The version presented by P.W.3 was not pleaded in the plaint

by the respondent nor it was his case in his testimony as P.W.1. Thus, a

new version was brought out at the trial as if it was a grant in the nature

of gift in favour of father of the respondent by the father of P.W.3 Sri

Sanyasi Rao described by him as a part of gramakantam, is adding to this

dimension.

25. Learned appellate Judge gave any amount of importance to the

version of P.W.3. The reason assigned by the learned appellate Judge in

this context is that it stood against the defence set up by the appellants 2

and 3 that the plaint schedule property belonged to their father Sri

Muvvala Chinnaiah. Admittedly, there are serious disputes between P.W.3

Sri Sanyasi Rao on one hand and the appellants 2 and 3 belonging to

Muvvala family on the other, right from the year 1959 relating to the

lands. Therefore, it is obvious that he came forward to depose against

the appellants because of his enemical disposition towards the appellants.

26. The observations in para - 13 of the judgment of the learned

appellate Judge are as under:

"However, in so far as P.W.3 - Ommi Sanyasi Rao on one hand, and the defendants 2 and 3 on the other hand, is MVR,J S.A.No.1134 of 2005

concerned, they have got civil case, as well as criminal cases. Having regard to this situation and back ground, the facts of the case have to be appreciated. As against the case of the defendants 2 and 3, that their father Muvvala Chinnayya gave the schedule site to the licensee, the father of the plaintiff - Yeduroddi Sanyasi, P.W.3 says that it is their family that distributed the land in that area in small strips of 100 sq. yards to the poor people that have migrated to that area, for eaking out their livelihood, free of cost, and without any documents. Whether the evidence of P.W.3 is totally believable or not, one clear thing that emerges is, that for the last 40 years, prior to the filing of the suit, Yeduroddi Sanyasi shifted from Yeduroddupalem village of Visakhapatnam to Seethammapeta, Visakhapatnam, in the schedule site, and he began to live with his family and children in about 100 sq.yards of site for himself and raised the house and the same is being continuously and uninterruptedly enjoyed by himself and his family members till now. When that situation has emerged, it is on the shoulders of the defendants 2 and 3 to prove their part of the case."

27. It is not in dispute that Sri Yeduroddi Sanyasi, father of the

respondent migrated to Visakhapatnam about 40 years ago along with his

family and was living in the plaint schedule property, where there was a

thatched hut. The case of the appellants is that he was a licencee and is

in permissive possession of this property and not otherwise. Nature of

such possession is not adverted to by learned appellate Judge, since it has

significant bearing, when assuming that such possession is continuous

and uninterrupted.

28. Ex.B1 to Ex.B4 are the certified copies of the proceedings under

Urban Land Ceiling Act relied on for the appellants contending that since

S.No.19 was declared holding of their family, where the plaint schedule

property is located, they are establishing their right, title and interest to it.

MVR,J S.A.No.1134 of 2005

The learned appellate Judge found that they are of no consequence and

have no effect on the claim of the respondent. These documents referred

to interest of appellants 2 and 3 to certain extent in S.No.19 and 20 of

Seethammapet, Visakhapatnam, they are not specifically referable to the

plaint schedule site. It is a deficiency in the case of the appellants. It

cannot offer strength to the respondent to substantiate his contention.

29. These factors and circumstances are considered, as a failure to

evaluate the basis on which Ex.A1 unregistered Will was considered by the

learned appellate Judge.

30. There is testimony of the respondent as P.W.1 in proof of this

Will. He claimed that the appellants came up on the suit property on

20.02.1999 picking up an altercation and at that time, he found Ex.A1 Will

of his father in a box. He also described the nature of this Will being on a

stamp paper along with other plain paper sheets and that it was attested

by Sri Boddeti Sankara Rao(P.W.2), Sri Modagala Suribabu and Sri

Pappula Krishnaiah. He deposed that he was not aware of execution of

Ex.A1 during the lifetime of his father. He further deposed that he

enquired the attestors about this Will and they explained him about its

execution.

31. A Will being a compulsorily attestable document under Section

68 of Indian Evidence Act, required proof in terms of Section 63(c) of

Indian Succession Act. Examination of at least one of the attestors in

proof of it, is necessary. P.W.2 Sri Boddeti Sankara Rao one of the

attestors to Ex.A1 Will deposed in this context.

MVR,J S.A.No.1134 of 2005

32. His testimony is that on 08.12.1992 at about 3.00 p.m. Sri

Yeduroddi Sanyasi called him, Sri Modagala Suribabu and Sri Pappula

Krishnaiah to his house and in verandah of his house, he showed them

Ex.A1 which was typed in Telugu. He deposed further that Sri Yeduroddi

Sanyasi called a college student going that way and asked him to read the

contents of this Will. Evidence of P.W.2 further reflected that upon Sri

Yeduroddi Sanyasi signing on the pages of Ex.A1, he signed as the first

attestor followed by Sri Modagala Suribabu and Sri Pappula Krishnaiah.

Ex.A1 reflected that it was typed by one Sri P.V.V.Satyanarayana, who

was not examined at the trial.

33. The contents of Ex.A1-Will are to the effect that father of the

respondent had bequeathed the plaint schedule property, which is in

S.No.19 of Seethammapet, Visakhapatnam of 100 sq.yards. It is described

being a part of Grama Kantam (village site), bearing Door No. 50-9-2,

recorded in Visakhapatnam Municipal Corporation. It also contains the

circumstances of the family and the reason that propelled the testator to

execute this Will.

34. The learned appellate Judge felt that there is absolutely no

reason to disbelieve the evidence of P.W.2-Sri B.Sankara Rao, for the

reason that he had also migrated to Visakhapatnam in the year 1967, who

is a native of Kaspa Jagannadhapuram, V.Madugula Mandal. The learned

appellate Judge also observed that the consistent defence of the

appellants in this regard is that Ex.A1 is an outcome of forgery and that

they also made attempts to examine D.W.2-Assistant Secretary from

Visakhapatnam Port Trust, through whom Ex.X1 to Ex.X3-letters written

by father of the respondent, were produced.

MVR,J S.A.No.1134 of 2005

35. The learned appellate Judge considered the signatures

appearing on Ex.X1 to Ex.X3, which are undisputed and compared the

signatures attributed to the father of the respondent in Ex.A1. On his

optical experience and the learned appellate Judge found that there is

similarity in these signatures. The learned appellate Judge also observed

that no steps were taken by the appellants to subject Ex.A1-Will for

scientific examination by an expert, though they summoned Ex.X1 to

Ex.X3 nor the respondent had taken such steps.

36. The learned appellate Judge also observed that there are no

suspicious circumstances surrounding Ex.A1 and to conclude that it is a

forged document and that the respondent being the only son of the

testator, making no deviation from devolution of this property, such

bequest was made. Thus, the learned appellate Judge held that the

bequest is quite justifiable and natural.

37. The learned appellate Judge also observed that there was no

necessity to go deep into assessment of the Will, having regard to the

circumstances and particularly for want of material to explain as to what

happened to other attestors. Thus, benefit of doubt apparently was

extended to the respondent, in proof of Ex.A1-Will.

38. P.W.2-Sri B.Sankara Rao, being the only attestor examined at

the trial and whose testimony is available for evaluation, requires

attention. The learned appellate Judge accepted the testimony of P.W.2-

Sri B. Sankara Rao, having regard to the strenuous contentions advanced

in this second appeal questioning this Will basing on the defence set up at

the trial, it has to be seen, if P.W.2 stood out as a witness of credibility.

MVR,J S.A.No.1134 of 2005

39. Cross-examination of this witness assumed importance in this

context. He stated in cross-examination that during Ex.A1 transaction, the

testator asked him to attest it and that he obliged. He further stated in

cross-examination that he had no prior acquaintance with two other

attestors, namely, Sri Suri Babu and Sri Pappu Krishnaiah. On these

statements of P.W.2, it is the contention on behalf of the appellants that

his testimony is not making out that the testator informed him and the

other attestors of the nature of the bequest proposed by him. The nature

of this transaction is also pointed out by the learned counsel for the

appellants contending that the testimony of P.W.2-Sri B.Sankara Rao is

untrustworthy.

40. The testimony of P.W.2 in this context has rather a touch of

artificiality. Calling him during that transaction to associate himself with

the execution of the Will with two strangers, namely, other attestors, is

one such circumstance. The manner by which the testator made them

known this Will and its contents calling a college student, who was

passing by, asking him to read over its contents, is another circumstance

of this nature. It is not in the evidence of this witness that the testator

had asked any of the attestors to read over the contents of this Will. Thus,

the very manner of depiction of the transaction through P.W.2 in proof of

this Will, is questionable. As pointed out for the appellants, his statements

in cross-examination lend support to the inference drawn above,

suspecting whether the contents of this Will were read over to those

present during that transaction.

41. In the presence of these circumstances, it is rather difficult to

hold that there is proof of Ex.A1 Will offered by the respondent.

MVR,J S.A.No.1134 of 2005

42. In the above circumstances, when the claim of the respondent

is based on title to the plaint schedule property as well as possession, in

seeking a relief of permanent injunction, proof of Ex.A1 Will is required

and it should be satisfactory. Nature of bequest in favour of the

respondent, being only surviving son to the testator, being natural, cannot

assume significance in this context. The learned trial Judge did not record

any finding relating to proof of Ex.A1-Will except a cursory reference to

testimony of P.W.1 and P.W.2.

43. Strenuous contentions are advanced on behalf of the

appellants with reference to the observations of the learned trial Judge as

well as the learned trial Judge to the effect that there was no attempt by

the appellants to subject Ex.A1-Will to the scientific examination. The

learned counsel for the appellants, Sri S.Rajan, brought to the notice of

this Court I.A.No.1694 of 2003 during trial under Section 45 of the

Evidence Act filed on behalf of the appellants to forward Ex.A1-Will for

comparison along with Ex.X1 to Ex.X3, to a hand writing expert for

opinion of the signatures attributed to the father of the respondent. This

petition was dismissed on 16.12.2003 by the trial Court observing that the

above petition was filed at the fag-end of the trial in order to delay the

proceedings in the suit. Further observation of the learned trial Judge in

this order was that the suit being only for permanent injunction and not

for deciding title, in the event of allowing the said petition, it would lead

to multiplicity of proceedings.

44. In the presence of this factor, it is manifest that the

observations of both the Courts below that there was no attempt on the

part of the appellants in this direction, is not correct.

MVR,J S.A.No.1134 of 2005

45. At the same time, Sri S.Rajan, learned counsel for the

appellants, sought to challenge this order of the learned trial Judge in this

second appeal, relying on Section 105(1) CPC and requested to reconsider

this application, filed under Section 45 of the Evidence Act. In this

process, the learned counsel for the appellants also contended that the

exercise of the learned appellate Judge in terms of Section 73 of the

Evidence Act is quite hazardous, which course the Courts should generally

desist. It is also contended by the learned counsel for the appellants that

recording observations in relation to nature of signatures upon

comparison, as is done in this case by the learned appellate Judge, is

totally unwarranted.

46. However, Sri Koka Srinivasa Kumar, learned counsel for the

respondent, strenuously contended referring to the observations of the

learned appellate Judge, with reference to possession of this property set

out by the respondent and also reasons in accepting Ex.A1-Will that the

appellate Court is justified in applying Section 73 of the Evidence Act in

the interests of justice and as such, it cannot be faulted. The learned

counsel for the respondent further contended that in the presence of clear

reasons assigned by the learned appellate Judge in this context,

particularly when the order in I.A.No.1694 of 2003, dated 16.12.2003, of

the trial Court became final without any challenge at that stage in a

revision petition before this Court, it is no more open for the appellants to

raise this question under Section 105 (1) CPC.

"105. Other orders.--(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) ..........."

MVR,J S.A.No.1134 of 2005

47. In terms thereof, any party aggrieved by an order, is entitled

to canvass relating to any error, defect or irregularity therein where a

decree is appealed from. Another requirement in this context is that even

though no appeal shall lie from such an order, either made in exercise of

its original or appellate jurisdiction by a Court, if it affects decision of the

case, it can be questioned in the appeal. Another requirement is that such

question should be set forth as a ground of objection in the memorandum

of appeal.

48. Therefore, an order amenable for consideration in terms of

Section 105(1) CPC can be questioned including in second appeal, if all

the circumstances governing its application, apply. The predominant factor

is only its nature, if it affects the decision of the case. Error, defect or

irregularity in the order should be with reference to the procedure or law

alone and not on facts. It includes improper exercise of jurisdiction by the

Court in passing such order. Merit of the order on facts, thus, cannot be

considered under Section 105(1) CPC.

49. Further, it is not every order of the trial Court passed in its

original jurisdiction cannot be subjected to questioning in terms of Section

105(1) CPC. Such power of the appellate Court is circumscribed by the

limitations, not only with reference to nature of the order, like error,

defect or irregularity therein, but also its effect on the final outcome or

the result in the case.

50. In respect of application of Section 105(1) CPC, my view is

supported by the following decisions relied on by Sri Koka Srinivasa

Kumar, learned counsel for the respondent, in M. Subbarayudu v.

MVR,J S.A.No.1134 of 2005

Rajamma1, where learned single Judge of then High Court of Andhra

Pradesh at Hyderabad. In Para-10 of this ruling, it is stated:

"10. ...... It is no doubt true that when interlocutory orders are made, not every order need be questioned and definitely by virtue of sub- section 105 of the Code such interlocutory orders also can be questioned in the appeal by raising specific grounds. Sub-section (1) of Section 105 of the Code says that save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but where a decree is appealed from any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. Hence to attract sub-section (1) of Section 105 of the Code (1) there must be an error, defect or irregularity in any order. (2) such order should affect the decision of the case and (3) in such case it may be set forth as a ground of objection in the memorandum of appeal.........."

51. In Pullambotla Kasturibayamma v. Ramesh V.

Parekh2, another learned single Judge of then High Court of Andhra

Pradesh at Hyderabad, in the same context, observed in Paras-15 and 16

thus:

"15. A party, who does not file any remedy of revision against the order, can challenge the validity of the order available to him in law. Section 105(1) of C.P.C. enables the party to set-forth any error, defect or irregularity in any order effecting the decisions of the case. Any error, defect or irregularity in any order can be challenged in an appeal against decree. Section 105 enacts that every interlocutory order made in the course of a suit or other proceeding which has not been appealed from because no appeal lay or because even though an appeal lay, an appeal was not taken, except an order of remand, can be attacked in an appeal from the final decree on the ground that there is an error, defect or irregularity in it; and that such error, defect or irregularity has affected the decision of the case.

16. Affecting the decision of the case means affecting the decision of the case on merits. Such error, defect or irregularity in the order, which has affected the decision of the case, may be set forth as a ground of objection in the memo of appeal, which may be filed against the decree. In other words, error, defect or irregularity in any order can be challenged in an appeal against the decree by taking a ground of objection in the memo of appeal. ......"

52. Sri S.Rajan, learned counsel for the appellants, in the same

context relied on Ganesh Ram vs. Smt. Ramlakhan Devi and

.(2003) 4 ALT 139

. (2006) 3 ALT 224 MVR,J S.A.No.1134 of 2005

another3, where a reference is made to application of Section 105(1)

CPC, in respect of an order striking off the defence, in an eviction suit,

holding that, it is applicable.

53. The appellants did not choose to question this order by

means of revision to this Court. Sri S.Rajan, learned counsel for the

appellants, sought to explain that there was no sufficient time for the

appellants to do so, since within a month from the date of the above

order, the suit was disposed of. However, one month period is sufficient,

if really the appellants interested then to prefer revision against the order

of the trial court.

54. If the above petition was allowed by the trial Court, Ex.A1

possibly could have been subjected to examination by a hand writing

expert. Opinion of hand writing expert is a weak piece of evidence and it

requires corroboration. Direct evidence in proof of execution of a

document is preferable than opinion of an expert. Viewed from such

context, it cannot be stated that the decision of the trial Court in the

above petition filed under Section 45 of the Evidence Act, would affect the

decision of the case on merit. Thus, the final outcome in the case, did not

suffer on account of the order in I.A.No.1694 of 2003. Added to it, the

learned trial Judge followed the procedure in considering this petition.

After giving due opportunity to the parties and upon hearing, it was

disposed of.

55. It should further be considered whether the appellate court

is right in applying Section 73 of the Evidence Act comparing the

.AIR 1981 Pat 36 (FB) MVR,J S.A.No.1134 of 2005

signatures attributed to father of the respondent in Ex.A1 and his

undisputed signatures in Ex.X1 to Ex.A3. Drawing conclusions thereon in

affirmative is subject matter of serious challenge on behalf of the

appellants.

56. Sri S.Rajan, learned counsel for the appellants, relied on

O. Bharathan v. K. Sudhakaran4 in this respect. Para-20 of this ruling

referring to the observations in State (Delhi Amdn.) vs. Pali Ram ( AIR

1979 SC 14) and extracting therefrom, is as follows:

"20. ..... Though it is the province of the expert to act as judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decision to be ultimately rendered. To quote, it has been held in Pali Ram AIR 1979 SC 14 (at p.21):-

"The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."

57. Sri S.Rajan, learned counsel for the appellants, in the same

context also relied on Ajit Savant Majagavi v. State of Karnataka.5 In

Paras 37 and 38, referring to effect of Section 73 of the Evidence Act, it is

stated:

"37. This section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to

. AIR 1996 SC 1140

. AIR 1997 SUPREME COURT 3255 MVR,J S.A.No.1134 of 2005

the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in court, to give his specimen writing or fingerprints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. [See: State (Delhi Admn.) v. Pali Ram [(1979) 2 SCC 158)]"

58. It is the caution that the Court should generally observe,

pointed out by Hon'ble Supreme Court. The proficiency in this science of

hand writing examination is the prime requirement. When there is nothing

on record to indicate that the appellate Judge had sufficient experience of

quality and nature in this specialized scientific field, it is rather hazardous

to rely on mere optical experience. The findings recorded by learned

appellate Judge upon comparison of the signature attributed to the father

of the respondent in Ex.A1 and undisputed signatures in Ex.X1 to Ex.X3 is

of such category and the opinion so expressed by the learned appellate

judge, cannot be supported nor can be accepted.

59. Therefore, differing with the view of the learned appellate

Judge, finding thereon requires interference. The conclusion so drawn on

Ex.A1, in fact, was invited by the parties at the trial stage as well as in the

appeal. Nonetheless, the finding returned by the learned appellate judge

cannot be supported.

60. In view of rejecting of this finding, the contents of Ex.A1 as

such with reference to possession of the plaint schedule property to vest MVR,J S.A.No.1134 of 2005

with the respondent, get affected. Thus, Ex.A1 Will, since not proved as of

the father of the respondent, did not assist his contention to establish

possession of the plaint schedule property.

61. The appellants cannot be called upon, in these circumstances,

to establish in negative that the respondent is not in occupation and

enjoyment of the plaint schedule property. It is the legal burden under

Section 101 of Evidence Act for the respondent to discharge. He failed in

this process. The approach of the learned appellate judge is not in

consonance with the well established principle in appreciation of evidence,

when the discretionary relief of permanent injunction is requested.

62. Therefore, 1 and 3 substantial questions of law raised on

behalf of the appellants need consideration and conclusions drawn by the

Courts below thereon should be held being erroneous and perverse,

basing on highly improper consideration and appreciation of evidence in

rather express ignorance of the material. With reference to 2nd substantial

question of law, reasons are already assigned holding that the finding was

invited by the parties at the trial and in the appeal. When the suit is based

on Ex.A1-Will setting up title to the plaint schedule property by the

respondent, in the circumstances, the appellants cannot state that they

stood to prejudice, when a finding was recorded by the learned appellate

Judge thereon. For such reason, having regard to this substantial question

of law in this second appeal, it is considered disagreeing with the finding

so returned by the appellate Court.

63. Sri S.Rajan, learned counsel fro the appellants, referring to

application of Section 100 CPC relied on State of Rajastan and others MVR,J S.A.No.1134 of 2005

vs. Shiv Dayal and another6. In para-15 of this ruling, it is stated as

under:

"15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called "concurrent finding of fact" whereas if the finding is reversed, it is called "reversing finding". These expressions are well known in the legal parlance."

In paras-16 and 17 in this decision, it is further stated as under:

"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)

17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code."

64. Sri S.Rajan, learned counsel for the appellants, also relied on

Gurnam Singh v. Lehna Singh7 referring to para 13.1, which is as

under:

" 13.1. ........The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] , in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

.2019 (8) SCC 637

.(2019) 7 SCC 641 MVR,J S.A.No.1134 of 2005

or

(ii) Contrary to the law as pronounced by the Supreme Court;

or

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal."

65. Further reliance is placed for the appellants in Ravi setia

vs. Madan Lal and others8 in the same context. In para 15 in this ruling

it is thus stated:

15. There can be no quarrel with the well-settled proposition of law that in a second appeal, the High Court ought not to enter into reappreciation of evidence to arrive at new findings, except on pure questions of law. But if the findings are perverse, based on complete misappreciation or erroneous consideration of evidence, and the failure to consider relevant evidence, it becomes a question of law. In Dilbagrai Punjabi v. Sharad Chandra [Dilbagrai Punjabi v. Sharad Chandra, 1988 Supp SCC 710] , it was observed as follows: (SCC pp. 712-13, para 5)

"5. ... The High Court was right in pointing out that the courts below had seriously erred in not considering the entire evidence on the record including the aforesaid documents. It is true that the High Court while hearing the appeal under Section 100 of the Code of Civil Procedure has no jurisdiction to reappraise the evidence and reverse the conclusion reached by the first appellate court, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate court decides an issue of fact a substantial question of law arises. The court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding."

66. Thus, the present case on hand meets all the requirements

pointed out by the Hon'ble Supreme Court in the above rulings,

necessitating interference with the judgments of the Courts below.

Therefore, this second appeal ha to be allowed setting aside the decrees

and judgments of both the Courts below.

. 2019(9) SCC 381 MVR,J S.A.No.1134 of 2005

67. In the result, the second appeal is allowed. The decrees and

judgments of the Courts below are set aside. Permanent injunction

granted in favour of the respondent is dissolved. In the circumstances,

parties are directed to bear their costs throughout on their own.

As a sequel, pending miscellaneous petitions, stand closed. Interim

Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:27.08.2021 RNS/RR MVR,J S.A.No.1134 of 2005

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.1134 of 2005

Dt:27.08.2021

RNS/RR