Rajasthan High Court - Jodhpur

Chattar Singh vs Lrs Of Vikram Singh ... on 1 August, 2023

Bench: Rekha Borana

[2023:RJ-JD:24424]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 165/2023

1. Chattar Singh S/o Sh. Jor Singh, Aged About 50 Years, Resident Of Village Chanod, Tehsil Sumerpur, District Pali.

2. Omprakash S/o Sh. Punja Ram, Aged About 45 Years, Resident Of Balesra Satta, Tehsil Shergarh, District Jodhpur.

3. Deravar Singh S/o Sh. Bhakar Singh, Aged About 49 Years, Resident Of Pokaran, District Jaisalmer.

----Appellants Versus LRs of Vikram Singh, S/o Sh. Shrenindan :

1. Smt. Bhanwar Kanwar W/o Late Sh. Vikram Singh, Resident Of Village Mathaniya, Tehsil Osiyan, District Jodhpur.

2. Anuradha D/o Late Sh. Vikram Singh, Resident Of Village Mathaniya, Tehsil Osiyan, District Jodhpur.

3. Padam Singh S/o Late Sh. Vikram Singh, Resident Of Village Mathaniya, Tehsil Osiyan, District Jodhpur.

                                                                    ----Respondents


For Appellant(s)              :    Mr. H.S. Sidhu



              HON'BLE MS. JUSTICE REKHA BORANA

                                    Judgment

01/08/2023

1. The present regular appeal has been preferred against the

judgment and decree dated 28.03.2023 passed by Additional

District Judge, Phalodi, District Jodhpur in Civil Regular Suit

No.01/2014 whereby the suit for cancellation of sale-deed and

permanent injunction as preferred by the plaintiff has been

decreed.

[2023:RJ-JD:24424] (2 of 11) [CFA-165/2023]

2. The case of the plaintiff was that the property in question

was purchased by him through a registered sale-deed on

12.04.2007 which was executed through Derawar Singh, the

Power of Attorney holder of the original owner. Subsequently,

Derawar Singh (defendant No.3 in the present suit), in conspiracy

with defendant Nos.1 & 2, prepared a forged Power of Attorney of

plaintiff Vikram Singh in favour of Om Prakash (defendant No.2)

and on basis of the said forged Power of Attorney, Om Prakash

executed a sale-deed in favour of Chhattar Singh (defendant No.1)

on 24.03.2011. It is only in the month of January 2012 when

defendant No.3 threatened the plaintiff to remove his possession,

that he came to know about the forged Power of Attorney and

sale-deed and after obtaining the copy of all the relevant

documents, preferred the present suit for cancellation of the sale-

deed dated 24.03.2011.

3. Written statement to the plaint was preferred by defendant

No.1 & 2 jointly and defendant No.3 independently but defendant

Nos.1 & 2 preferred not to lead any evidence.

4. On basis of the pleadings, the learned trial Court framed as

many as six issues, which read as under :

"1- vk;k oknh izfroknhx.k }kjk lktlh feykoV ls rS;kj fd, x, dwVjfpr eq[r;kjukek fnuakd 17-03-2011 ds vk/kkj ij xzke Vsdjk ds [kljk ua 9@15 jdck 56 ch?kk 11 fcLok Hkwfe ds vf/kdkjksa dk izfroknh la[;k 1 ds i{k esa fu'ikfnr foØ; foys[k tks mi iath;d tks/kiqj ¼f}rh;½ ds ;gka fnukad 24-03-2011 dks iathd`r gqvk dks vius vf/kdkjksa ds fo:) vkjEHk ls "kwU;

?kksf'kr djokdj fujLr djkus dk vf/kdkjh gS \ oknh

[2023:RJ-JD:24424] (3 of 11) [CFA-165/2023]

2- vk;k oknh bl vk"k; dh LFkkbZ fu'ks/kkKk tkjh djokus dk vf/kdkjh gS fd izfroknhx.k mDr [kljk dh Hkwfe esa oknh ds dCtk dk"r esa n[ky ;k vfrØe.k ugha djsa vkSj u gh mldk cspku] gLrkUrj.k ;k O;;u Lo;a djs] u fdlh ls djkos \ oknh

3- vk;k oknh us LosPNk ls viuk eq[r;kjukek izfroknh la[;k 2 ds i{k esa fu'ikfnr djok;k Fkk ftlds vk/kkj ij izfroknh la[;k 2 us izfroknh la[;k 1 ds i{k esa jftLVªh djokbZ Fkh \ izfroknhx.k

4- vk;k izfroknh la[;k 1 lnHkkfod Øsrk gksus ds dkj.k oknh oknxzLr Hkwfe dk foØ; foys[k fujLr djokus dk vf/kdkjh ugha gS \ izfroknhx.k

5- vk;k okndkj.k ds vHkko esa oknh dk okn iks'k.kh; ugha gksus ls [kkfjt ;ksX; gS \ izfroknhx.k

6- vuqrks'k \"

5. Learned Court below proceeded on to decide issues No.1 & 2

in favour of the plaintiff and issues No.3 to 5 against the

defendants and consequently, decreed the suit in favour of the

plaintiff. In view of the findings on issues No.1 & 2, the Court

below proceeded on to hold that the plaintiff is entitled to get the

sale deed cancelled and further to get an injunction in his favour

restraining the defendants from interfering with his peaceful

possession.

6. Learned counsel for the appellants submitted that the

learned trial Court decreed the suit in favour of the plaintiff only

on basis of the FSL Report received/procured in the criminal

proceedings which firstly, could not have been relied upon in the

[2023:RJ-JD:24424] (4 of 11) [CFA-165/2023]

present civil proceedings and secondly, the FSL Report is an

extreme weak evidence which cannot be made the basis of any

finding. In support of his submission, learned counsel relied upon

judgment of the Hon'ble Apex Court in S.P.S. Rathore Vs. C.B.I.

and Ors., (2017) 5 SCC 817.

7. Learned counsel further submitted that a mere argument of

the plaintiff that the Power of Attorney was forged, could not have

been believed without the same having been proved on record in

terms of provisions of the Indian Evidence Act. Mere filing of the

document and getting it exhibited would not be sufficient for

proving the same. The document/contents of the document have

to be corroborated by oral evidence which, in the present case has

not been done and hence the finding of the Court below of the

Power of Attorney to be forged, without the same been proved to

be so, is totally perverse. In support of his submission, learned

counsel relied upon the judgments of Hon'ble Apex Court in

Jagmail Singh and Ors. Vs. Karamjit Singh and Ors., (2020)

5 SCC 178 and L.I.C. of India and Ors. Vs. Ram Pal Singh

Bisen, (2010) 4 SCC 491. Learned counsel submitted that the

FSL Report was not proved by the person issuing the same and

therefore also, the document could not have been held to be

proved.

8. Learned counsel further submitted that the finding regarding

possession as reached by the Court below is also a finding based

on incorrect facts. It was rather an admitted case of the plaintiff in

his cross-examination that they were not in possession of the

[2023:RJ-JD:24424] (5 of 11) [CFA-165/2023]

property. Hence, the finding qua the same was contrary to the

evidence available on record.

9. Heard learned counsel for the appellants and perused the

material available on record.

10. Before adverting into the findings as reached by the Court

below on all the issues, it is relevant to note that defendants No.1

& 2, though filed their written statement, refrained from leading

any evidence. Only defendant No.3 - Derawar Singh came into the

witness box wherein he specifically admitted that he is not in any

manner concerned with the property in question. He further

deposed that he had no role in execution of Power of Attorney in

favour of Omprakash and also that neither was he the witness to

the sale deed nor was he the khatedar of the land. In his cross-

examination, defendant No.3 - Derawar Singh deposed as under :

";g dguk lgh gS fd eS xzke Vsdjk ds [kljk uacj

9@15 jdck 56 ch?kk 11 fcLok dk dHkh [kkrsnkj ugha jgk FkkA eq>s bl laca/k esa irk ugha Fkk fd Nrjflag ds uke foØ; i= dc tkjh fd;k x;k o fdlus djok;kA ;g dguk xyr gS fd foØeflag ds uke ls QthZ vke eq[r;kjukek vkseizdk"k ds uke rS;kj djokdj vkseizdk"k }kjk Nrjflag ds i{k esa QthZ jftLVjh fu'ikfnr dj mls mi iath;d tks/kiqj ds ;gka iathd`r djokus esa eq[; :i ls esjk dksbZ jksy jgk gksA" He further deposed as under :

"eq>s irk ugh gS fd ikWoj vkWQ vVkZuh dgka fu'ikfnr

djokbZ x;h fdlls djokbZ x;h dc djokbZ x;h o fdlls izekf.kr djokbZ xbZA"

[2023:RJ-JD:24424] (6 of 11) [CFA-165/2023]

And further as under :

"[kljk uacj 9@15 dh tc esjs ikl ikWoj vkWQ vVkZuh Fkh

ml le; gh eS ogka x;k Fkk] foØeflag dks cspku djus ds ckn eS ogka ugha x;k FkkA"

11. In view of the fact that defendants No.1 & 2 did not lead any

evidence and defendant No.3 specifically admitted that he had no

role in execution of Power of Attorney nor was he in any manner

concerned with the sale deed in question, the Court below

proceeded on to decide issue No.1 in favour of the plaintiff and

issue No.3 against the defendants. The Court held that specific

pleading of the plaintiff that he never received any consideration

amount qua the sale deed in question, was though denied by

defendants No.1 & 2 in the written statement but no evidence was

led by them to substantiate their pleadings. Therefore, the factum

of consideration amount having not been received by the plaintiff,

being uncontroverted, was held to be proved.

12. Regarding the Power of Attorney in question, the Court held

that the pleading of the plaintiff that the said Power of Attorney

was fraudulently executed by the defendants was also not

controverted by the defendants by any cogent evidence. Further,

the FSL Report called for by the Criminal Court in criminal

proceedings (Case No.22/2012) initiated by the plaintiff against

the defendants, was exhibited on record as Exhibit-13 and

according to the said FSL Report, the signatures of plaintiff Vikram

Singh on the alleged Power of Attorney were found to be forged

and fabricated. In view of the fact that the pleading of the Power

of Attorney being forged was not controverted and also relying

upon the document Exhibit-13, the Court below reached to the

[2023:RJ-JD:24424] (7 of 11) [CFA-165/2023]

conclusion that the Power of Attorney in question was proved on

record to be forged and fabricated.

13. So far as reliance of the Court below on the FSL Report is

concerned, it is clear on record that the said document was not

the only reason for the Court below to arrive to the findings.

Besides consideration on FSL Report, the Court below also

compared the signatures of the plaintiff as made on the plaint and

then proceeded on to arrive to the finding of the signatures being

forged. The fact that it is not the sole FSL Report that has been

relied upon by the Court is evident from the observations as made

by the Court as under :

"mDr nLrkost dk voyksdu djus ls ;g nf"kZr gksrk gS

fd ml ij foØeflag o vkseizdk"k ds gLrk{kj gksuk n"kkZ;s x;s

gSa] ijUrq vkseizdk"k ds vaxqBkfu"kkuh Hkh gksuk n"kkZ;k x;k gS]

tcfd foØeflag ds dksbZ vaxqBkfu"kku gksuk ugha n"kkZ;k x;k gSA

okn i= esa vafdr gLrk{kjksa ls rqyuk djus ij izn"kZ&3

vkeeq[r;kjukek esa vafdr gLrk{kj loZFkk fHkUu izdV gksrs gSaA"

14. In S.P.S. Rathore's case (supra), the judgment relied upon

by the counsel for the appellant, the Hon'ble Apex Court also

observed that the Court is competent to compare the disputed

writing of a person with others which are admitted or proved to be

his writings. Therein, the Court observed as under :

[2023:RJ-JD:24424] (8 of 11) [CFA-165/2023]

"It may not be safe for a court to record a finding about a person's writing in a certain document merely on the basis of expert comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. It has also been held by this Court in a catena of cases that the sole evidence of a 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. It is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence."

15. Herein is a case where the plaintiff has, in unambiguous

terms, pleaded that the signatures on the alleged Power of

Attorney were forged. To prove the same, oral evidence was led

and to substantiate the pleading, the document i.e. FSL Report as

procured by the criminal Court was also placed on record and got

exhibited. Interestingly, neither the evidence as led was

controverted nor the defendants lead any evidence to prove to the

contrary.

So far as the plaintiff is concerned, he has successfully

proved that the Power of Attorney on the basis of which the sale

deed in question had been executed was a forged and fabricated

one. There being no evidence on record to the contrary, the

[2023:RJ-JD:24424] (9 of 11) [CFA-165/2023]

findings as arrived by the Court below does not deserve any

interference and the same are hereby affirmed.

16. Issue No.3 as framed was - Whether the plaintiff wilfully

executed the Power of Attorney in favour of defendant No.2 in

furtherance of which defendant No.2 executed the sale deed in

favour of defendant No.1 ?

The burden to prove the said issue was on the defendants

and they led no evidence, oral or documentary to prove the same.

Issues No.1 & 3 were inter-related and had Issue No.3 been

proved by the defendants in their favour, issue No.1 would ipso

facto have been decided against the plaintiff. Interestingly, the

defendants did not lead any evidence and the plaintiff proved

issue No.1 on basis of oral as well as documentary evidence. The

judgments as relied upon by learned counsel for the appellants on

the ratio that mere filing of a document, mere marking of exhibit

on a document, mere admission of document, does not amount of

its proof would be of no help to the appellants in the present

matter. This Court is of the specific opinion that the fact that the

signatures of the plaintiff on the alleged Power of Attorney were

forged, was very well proved by the plaintiff on record. The

burden to prove that the Power of Attorney was executed by the

plaintiff wilfully in favour of defendant No.2 was on the defendants

and when they did not lead any evidence to prove the same, the

Court could not have reached to any finding other than what has

been arrived to.

[2023:RJ-JD:24424] (10 of 11) [CFA-165/2023]

17. In view of the findings as reached by the Court below on

issues No.1 & 3 and as discussed and analysed in preceding

paragraphs, this Court does not find any ground to admit the

present first appeal as no ground for admission of the appeal has

been made out by the counsel for the appellants.

18. So far as the ground raised by learned counsel for the

appellants that the possession of the plaintiff on the property in

question was not proved, while deciding issue No.2, the Court

below held that PW1 - Padam Singh specifically deposed regarding

his possession. No evidence was led by the defendants No.1 & 2 to

prove their possession and defendant No.3 admitted that he was

never the Khatedar of the land in question nor did he ever visit the

land after its sale to Vikram Singh. Therefore, there was no reason

to disbelieve the evidence of the plaintiffs regarding the

possession.

PW1 - Padam Singh in his examination-in-chief deposed as

under :

";g gS fd gekjh [kkrsnkjh dh Hkwfe [kljk uEcj 9@15 dh lgh fLFkfr dks n"kkZusa gsrq okn i= ds lkFk ,d utjh uD"kk esa ekdZ ,-ch-lh-Mh- ds e/; [kljk uEcj 9 dh dqy Hkwfe n"kkZbZ gqbZ gS ,oa utjh uD"kk esa ekdZ bZ-,Q-th-,p- ds e/; gekjh oknxzLr [kljk uEcj 9@15 jdck 56-11 ch?kk n"kkZbZ xbZ gSA ftlesa ,Dl LFkku ij esjs firk }kjk mDr Hkwfe [kjhn djus ds i"pkr~ ,d ikuh dk cM+k gkSn cuk;k gqvk gSA bl Hkwfe ds fpirs gqos nf{k.k iwoZ esa Jherh >weknsoh es?koky dh Hkwfe vkbZ gqbZ gSA ftlesa uydwi [kqnok;k gqvk gSA blh uydwi ls esjs firk vius thou dky rd rFkk muds i"pkr eSa mDr Hkwfe dks flafpr djrs vk jgk gwaA esjh

[2023:RJ-JD:24424] (11 of 11) [CFA-165/2023]

mDr Hkwfe ds nf{k.k esa jkepUnz es?koky ,oa mrj if"pe esa dslkjke es?koky dh Hkwfe Hkh vkbZ gqbZ gSA"

In his cross-examination he deposed as under :

"eS esjs firkth ds fu/ku ds i"pkr ls [ksrh dj jgk gwWA fiNyh lky eSaus jk;M+s dh cqokbZ dh Fkh o bl lky thjs dh cqokbZ dhA"

19. In view of above evidence as led by the plaintiffs, the ground

raised by the counsel for the appellants that the plaintiffs admitted

that they were not in possession of the property falls flat on the

face of it. The finding on the said issue as arrived by the Courts

below being totally in consonance with the material available on

record, does not deserve any interference and the same is hereby

affirmed.