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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 647  OF 2005

Garre Mallikharjuna Rao (D) by Lrs. & Ors.                …Appellants

Versus

Nalabothu Punniah                                                       …Respondent

J U D G M E N T   

Dr. B. S. CHAUHAN, J.

1.   This appeal has been preferred against the impugned judgment  

and order dated 19.7.2002 passed by the High Court of Judicature of  

Andhra Pradesh at Hyderabad in Appeal No. 676 of 1993, which had  

set aside the judgment of the trial court, wherein the suit filed by the  

respondent  for  specific  performance  has  been  dismissed  vide  

judgment and decree dated 9.11.1992 in O.S. No. 117 of 1983.  

2. The facts and circumstances giving rise to this appeal are:

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A. That the respondent/plaintiff  filed two suits  O.S.  No.  117 of  

1983 and O.S. No. 257 of 1984, seeking specific performance on the  

basis of agreement to sell entered into with the appellant.  As per the  

averments  made  by  the  respondent/plaintiff,  late  Garre  Venkata  

Ramakotaiah, father of the defendant Garre Mallikharjuna, had leased  

out the plaint scheduled properties on 29.4.1980, by way of lease deed  

dated 20.4.1980.  The respondent/plaintiff  on the basis of the lease  

deed, had claimed to be in continuous possession and enjoyment of  

the said properties.  The defendant having filed the written statement,  

died pendentelite, thus his wife, son and daughter had been substituted  

as his legal representatives.  They defended the suit contending that  

the plaint was based on false and fabricated document.  Further, they  

claimed that the agreement to sell,  alleged to have been executed by  

the father of the defendant, was a fabricated document and that the  

signature of defendant shown therein as an attesting witness, had also  

been forged. Thus, the suit may be dismissed.  

B. After conclusion of the trial, the trial court had dismissed the  

Original  Suit  No.  117  of  1983  by  a  judgment  and  decree  dated  

9.11.1992.

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C. So far as the other suit was concerned, wherein the agreement  

to sell had been executed by the defendant himself, it was decreed and  

in  pursuance  thereof,  the  sale  deed  was  executed.   The  

appellant/defendant had shown no objection in respect of the same.  

D. Aggrieved, the respondent/plaintiff preferred Appeal No. 676 of  

1993 before the High Court against the order of dismissal of Original  

Suit No. 117 of 1983, and vide impugned judgment and order, the suit  

was  decreed and the appellant/defendant  was directed to execute  a  

sale deed in respect of land admeasuring 4.38 acres for a consideration  

of Rs.30,000/-, out of which the respondent/plaintiff had already paid  

Rs.28,000/- to the father of the defendant.  

Hence, this appeal.

3. Shri Sanjeev Kumar, learned counsel appearing on behalf of the  

appellant, has submitted that the High Court has erred in relying upon  

the evidence of the hand-writing expert Shri Y. Sidda Reddy (PW-4).  

Though, the trial court has disbelieved his version, it is pertinent to  

note  that  he  had  categorically  stated  that  the  signatures  on  the  

agreement to sell  did not tally with the specimen signatures of the  

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defendant i.e. as an attesting witness.  More so, Shri Syed Syda Saheb  

(PW-3), Scribe, has clearly deposed before the trial court that he did  

not meet the vendor or his son. Attesting witness PW-2 has admitted  

only his  signatures on the said  document,  however,  he denied  any  

knowledge as to its contents. Also he has deposed that he had agreed  

to  be  a  witness  to  the  said  deed,  out  of  compulsion  as  the  

respondent/plaintiff  was  a  hardened  criminal,  involved  in  various  

murders cases.  More so,  the respondent/plaintiff  himself  has raised  

mutually inconsistent pleas inasmuch as he has submitted that in the  

agreement to sell, time period of 4 months had been fixed to execute  

the sale deed, while in his deposition, he had deposed that the sale  

deed was to be executed only after the expiry of the term period of the  

lease.  In view of above, the High Court ought not to have reversed  

the well reasoned judgment and decree of the trial court which had the  

opportunity  to  see  the  demeanor  of  the  witnesses  itself.  Thus,  the  

appeal deserves to be allowed.  

4. Per contra, Shri R. Anand Padvanan, learned counsel appearing  

on  behalf  of  the  respondent/plaintiff,  has  submitted  that  both  the  

families had known each other since long.  The respondent/plaintiff  

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had purchased the land from the defendant’s father in the year 1961,  

1969 and 1974 and, in furtherance thereof,  the defendant’s father had  

executed  two  agreements  for  sale.  Also,  in  respect  of  one  of  the  

agreements  after  the  trial  court  had  decreed  the  suit  of  specific  

performance  in  his  favour,  the  appellant/defendant  did  not  even  

challenge  the  order.   The  High  Court  has  rightly  reversed  the  

judgment of  the trial  court  placing reliance on the evidence of  the  

hand-writing expert PW-4.  Thus, the appeal is liable to be dismissed.  

5. We have considered the rival submissions made by the learned  

counsel for the parties and perused the records.  

6. Whatever may be the legal position involved in this case, the  

facts  as  pleaded and proved before  the  courts  below,  are  far  from  

being satisfactory. The respondent/plaintiff who has examined himself  

as PW-1 has raised mutually inconsistent pleas, as is evident from the  

pleadings in the plaint wherein he had stated that it has been agreed  

that the sale deed would be executed within a period of 4 months,  

however,  in  his  deposition,  he  has  stated  that  the  sale  deeds  were  

agreed to be executed only after the expiry of the term of the lease.  

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The agreement to sell has been transcribed on the non-judicial stamp  

paper, though not registered.  Admittedly, the said stamp paper had  

been  purchased  11  months  prior  to  the  date  mentioned  in  the  

agreement for sale. More so, it had been purchased from a different  

place.  Further, there is nothing on record to show as in whose name,  

the  non-judicial  stamp  paper  had  been  purchased  and  who  had  

purchased it.    

7. PW-2  has  deposed  that  he  had  put  his  signatures  on  the  

agreement to sell, however, he had stated that he did not know the  

contents of  the said agreement,  and he had put his signatures only  

under compulsion as the respondent/plaintiff was a hardened criminal  

and had been involved in various murders cases.    

8. PW-3,  who was  the  scribe,  has  clearly  deposed  that  he  had  

neither known who the vendor was, nor his son, nor who were the  

attesting witness.  He was an unlicensed deed writer and the relevant  

part of his deposition as referred by the trial court is as under:

“PW3 did not say in his evidence that Ramakotaiah and  other  attester  signed  in  his  presence  and  he  does  not  know Ramakotaiah previously.”

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In view of the above, there can be no doubt that the said PW-3  

could neither be an attester, nor an eye-witness to the transaction.    

9. Shri Y. Sidda Reddy (PW-4) in his deposition has clearly stated  

that he did not see the original documents since he was given only the  

photos of the admitted documents and the specimen signatures.  He  

has explained that there was difference in formation of the same as  

under:    

“There  is  some  difference  in  formation  of  letter  vralu  between S-1 and Q-1.  There is angle formation.  In the  letter Ta on the left side bottom in Q-1 whereas it is a  curve in S.1.  There is long curve at the end of the letter  ma in S-1 than Q-1.  There is some natural variation in  the formation of Kravadi given to the letter Re between  Q-1 and S1.  The letter Va in Q-1 shows some slight right  plant  than S-1  whereas  it  is  vertical  in  S-1.   There  is  slight spacing difference between letters in S-1 and Q-1.  Letters to letter there are some variation but in natural  variation.”    

Further, he had opined that both the signatures are not of the  

same persons as “intention to disguise the natural characteristics of  

signatures” existed. Further he had stated that he had not mentioned  

that  Q-2  and  S-2  i.e.  the  admitted  and  specimen  signatures  were  

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written  by  the  same  person,  both  the  signatures  were  different  in  

formation.  

10. The  evidence  of  PW-5,  who  is  a  mortgagee  of  the  

respondent/plaintiff and claimed to have advanced certain amount, is  

not relevant for proving any of the documents, neither is PW-6, who  

was the photographer, who had taken the photographs of the admitted  

and specimen signatures.   

11. In Ajay Kumar Parmar v. State of Rajasthan, AIR 2013 SC  

633, while dealing with the provisions of Section 73 of the Indian  

Evidence Act, 1872, this Court observed that courts, should be slow to  

base its findings solely on comparison made by it. The Court further  

held:  

“The  opinion  or  a  handwriting  expert  is   fallible/liable  to  error  like  that  of  any  other   witness, and yet, it cannot be brushed aside as   useless.  There  is  no  legal  bar  to  prevent  the   Court  from  comparing  signatures  or   handwriting, by using its own eyes to compare   the disputed writing with the admitted writing   and then from applying its own observation to   prove the said handwritings to be the same or   

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different, as the case may be, but in doing so,   the Court cannot itself become an expert in this   regard and must refrain from playing  the role   of  an  expert,  for  the  simple  reason  that  the   opinion  of  the  Court  may  also  not  be   conclusive.  Therefore,  when  the  Court  takes   such  a  task  upon  itself,  and  findings  are   recorded solely on the basis of comparison of   signatures  or  handwritings,  the  Court  must   keep in mind the risk involved, as the opinion   formed by the Court may not be conclusive and   is  susceptible  to  error,  especially  when  the   exercise  is  conducted  by  one,  not  conversant   with  the  subject.  The  Court,  therefore,  as  a   matter or prudence and caution should hesitate   or be slow to base its findings solely upon the   comparison made by it. However, where there   is an opinion whether of an expert, or of any   witness,  the  Court  may  then  apply  its  own   observation  by comparing the  signatures,  or   handwritings for providing a decisive weight or   influence to its decision.”  

12. The judgment and order of the trial court is based on proper  

appreciation  of  the  evidence.  The High Court  has  erred  in  relying  

upon  untrustworthy,  shaky  and  vague  evidence  to  grant  the  

discretionary relief  of  specific  performance in  contravention  of  the  

mandate of Section 20 of the Specific Relief Act, 1963.   

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In view of the above, the appeal succeeds and is allowed. The  

impugned judgment is hereby set aside. The judgment and decree of  

the Trial Court is restored i.e. the suit filed by the respondent/plaintiff  

is dismissed. No costs.   

…….…………………………………….J. (Dr. B.S. Chauhan)

….……………………………………….J. (Fakkir  Mohamed  Ibrahim  Kalifulla)

New Delhi;   March 12, 2013

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