ASLAM KHAN Vs. AMANULLA KHAN

JUDGEMENT

(1.) At the time of admission I have heard the arguments of the appellants' counsel and the respondent's counsel.

(2.) The substantial question of law that arises is whether the first appellate court is legally justified in placing reliance on the experts evidence by ignoring the evidence of other four witnesses PW.1 to 4 for dismissing the appeal? Necessary facts to be mentioned here are that the appellants are the children of the original plaintiff Noorulla Khan who instituted the suit O.S.No.147/2011 in the court of Senior Civil Judge and JMFC, Malur for enforcing the agreement dated 31.07.2006 said to have been executed by the defendant. The plaintiff and the defendant are the brothers. It appears that the defendant Amanulla Khan filed a suit for partition in O.S.No.427/1992 against the plaintiff and obtained a decree in respect of the suit property. Subsequently the plaintiff came up with a plea that on 31.07.2006 the defendant executed an agreement of sale in his favour agreeing to sell the suit property for a consideration of Rs.6,00,000/- and received an earnest money of Rs.5,00,000/-. Since the defendant failed to executed the sale deed in terms of the agreement, the plaintiff brought a suit for specific performance. The plaintiff examined four witnesses and produced four documents Ex.P.1 to 4. From the defendant's side he himself adduced evidence as DW.1 and produced one document, Ex.D.1. On 19.10.2011 the trail court decreed the suit. Challenging this judgment and decree, the defendant preferred an appeal R.A.No.101/2011 before the District Court, Kolar. The said appeal came to be allowed and suit remanded to the trial court with a direction to secure the opinion of the hand writing expert. Therefore the trial court, after remand, referred the disputed signature of the defendant on the agreement of sale to an hand writing expert. Since he gave his report stating that the signature appearing on the agreement did not tally with the admitted signature of defendant, the trial court came to conclusion that defendant had not executed the agreement of sale and dismissed the suit. Aggrieved by this judgment and decree, the sons of the plaintiff preferred an appeal RA.No.64/2014 to the District Court, Kolar. The learned Addl. District Judge who decided the appeal concurred with the findings of the trial judge and dismissed the appeal and hence this second appeal.

(3.) The learned counsel for the appellants argues that if the judgment of the first appellate court is read, it shows that the first appellate court which is the last fact finding body has not applied its mind. It has simply relied upon the opinion of the expert and has not bestowed its attention to the evidence given by the plaintiff's witnesses, PW-1 to 4. He argues that the first appellate court should have applied its mind and evaluated the findings of all the four witnesses examined from the plaintiff's side before referring to the evidence given by the hand writing expert and in this way committed an error in not appreciating the evidence properly. In support of his argument he refers to the judgment of the Hon'ble Supreme Court in the case of Gulazar Ali Vs. State of H.P., 1998 2 SCC 192 , Madina Begum and another Vs. Shiv Murti Prasad Pandey and others, 2016 15 SCC 322and Laliteshwar Prasad Singh and others Vs. S.P.Srivastava (dead) through legal representatives, 2017 2 SCC 415.