# Ram Janam Defendant/ v. Ram Din Plaintiffs/

- **Citation:** (2019) 3 ILRA 769
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-01
- **Case number:** Second Appeal No. 971 of 1992
- **Bench:** Harsh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-janam-defendant-v-ram-din-plaintiffs-44791
- **Pages:** 12

## Headnote

A. Evidence Law-Evidence Indian Evidence
Act, 1872 - Section 45 - Civil Suit for
cancellation of sale deed - Opinions of finger
print and handwriting expert - Conflicting
opinions - Court may itself compare the
thumb impression, ignoring the expert
opinion - Report of finger print and
handwriting expert is relevant but its
evidentiary value is that of an opinion of an
expert. It is not binding upon the Courts.
Held:- In civil cases when two conflicting
opinions are brought before the Court in the
shape of reports of two different finger print
and handwriting experts, produced each by
plaintiff and defendant, favouring each of
them respectively, it becomes the pious duty
of Court to examine and compare itself the
disputed
thumb
impressions/signatures/
writings etc. with admitted or specimen thumb
impressions
etc.
as
well
as
enlarged
photographs thereof, so as to determine the
correctness of expert opinion/report given by
any of the two handwriting and finger print
experts, and deciding the truth of the fact. In
civil cases courts may not be justified in
resiling
from
its
duty
of
such
examination/comparison by itself by leaving
the issue of proof of thumb impressions over
any document (which may be basis of case)
undecided. In a suit for cancellation of sale
deed where there is specific denial of
execution of impugned sale deed and specific
averment that impugned sale deed having
been obtained by impersonating some other
person in place of plaintiff, the Court may not
be justified in proceeding with disposal of
case, either by decreeing or dismissing the
case, without recording any specific finding
regarding thumb impressions impugned sale
deed bears signature/thumb impressions of
plaintiff, if it rules out possibility of execution
by imposter and in case it does not bear
signature/thumb
impressions
of
plaintiff,
(confirming execution by imposter in place of
plaintiff). (Para 18, 19)

Reports of two experts favouring plaintiff and
defendant respectively being contradictory to
each other in such circumstances the trial
court ought to have examined the disputed
thumb impressions over the impugned sale
deed/Register Form No.8 and the specimen
thumb impressions of plaintiff on record, at its
own - Lower appellate Court did not commit
any illegality or mistake in comparing the
disputed thumb impressions with specimen,
thumb impressions of plaintiff at its own. (Para
35)

B. Evidence Law-Indian Evidence Act,
1872 - Section 71 - Burden of Proof -
Cancellation of Sale deed - Plaintiff
denying execution of sale deed - Burden
770 INDIAN LAW REPORTS ALLAHABAD SERIES
to prove execution of sale deed by
plaintiff
upon
the
defendant
by
producing marginal witness of sale deed
or by some other evidence - there can
be no burden to prove something
negative or to disprove any fact or
allegation

Held:- The "Burden of Proof" means burden to
prove some positive allegations and there can be
no burden to prove something negative or to
disprove any fact or allegation - Provisions of
Section 71 of Indian Evidence Act nowhere
required the plaintiff to produce marginal witness
of sale deed for disproving the same rather since
burden to prove execution of impugned sale deed
by plaintiff was on defendant, in view of
provisions of Section 71 of Indian Evidence, the
defendant had to produce marginal witness of
sale deed or to produce some other evidence to
which he failed and adverse inference was
required to be drawn against him to the effect
that had the marginal witnesses been produced to
witness box they would have denied execution of
impugned sale deed as well as payment of
consideration. Defendant could have adduced
other evidence to prove impugned sale deed, in
view of provisions of Section 71 of Indian
Evidence Act which has not been done by him.
(Para 30, 31)

C. Property - Entry in revenue Record -
Entries in revenue records are not proof
of title and possession - Mere mutation
of name in revenue records does not

## Text

3 All. Ram Janam Vs. Ram Din
769
case, since there was no jointness of the
properties of the successor of Natthi Lal
i.e. the plaintiff and of Shiv Charan, the
latter could not have dealt with the
properties of the successor of Natthi Lal
at all as a Karta. The second substantial
question of law is also, accordingly,
answered.

11. Under such circumstances, the
substantial questions of law, as have been
framed, are answered.

12.

The
Second Appeal
is,
accordingly, dismissed.
----------

(2019)11ILR A769

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2019

BEFORE
THE HON'BLE HARSH KUMAR, J.

Second Appeal No. 971 of 1992

Ram Janam ...Defendant/Appellant
Versus
Ram Din ...Plaintiffs/Respondent

Counsel for the Appellant:
Sri P.K.S. Paliwal

Counsel for the Respondent:
Sri V.V. Misra, Sri Devendra Pratap Yadav,
Sri Rajesh Kumar

A. Evidence Law-Evidence Indian Evidence
Act, 1872 - Section 45 - Civil Suit for
cancellation of sale deed - Opinions of finger
print and handwriting expert - Conflicting
opinions - Court may itself compare the
thumb impression, ignoring the expert
opinion - Report of finger print and
handwriting expert is relevant but its
evidentiary value is that of an opinion of an
expert. It is not binding upon the Courts.
Held:- In civil cases when two conflicting
opinions are brought before the Court in the
shape of reports of two different finger print
and handwriting experts, produced each by
plaintiff and defendant, favouring each of
them respectively, it becomes the pious duty
of Court to examine and compare itself the
disputed
thumb
impressions/signatures/
writings etc. with admitted or specimen thumb
impressions
etc.
as
well
as
enlarged
photographs thereof, so as to determine the
correctness of expert opinion/report given by
any of the two handwriting and finger print
experts, and deciding the truth of the fact. In
civil cases courts may not be justified in
resiling
from
its
duty
of
such
examination/comparison by itself by leaving
the issue of proof of thumb impressions over
any document (which may be basis of case)
undecided. In a suit for cancellation of sale
deed where there is specific denial of
execution of impugned sale deed and specific
averment that impugned sale deed having
been obtained by impersonating some other
person in place of plaintiff, the Court may not
be justified in proceeding with disposal of
case, either by decreeing or dismissing the
case, without recording any specific finding
regarding thumb impressions impugned sale
deed bears signature/thumb impressions of
plaintiff, if it rules out possibility of execution
by imposter and in case it does not bear
signature/thumb
impressions
of
plaintiff,
(confirming execution by imposter in place of
plaintiff). (Para 18, 19)

Reports of two experts favouring plaintiff and
defendant respectively being contradictory to
each other in such circumstances the trial
court ought to have examined the disputed
thumb impressions over the impugned sale
deed/Register Form No.8 and the specimen
thumb impressions of plaintiff on record, at its
own - Lower appellate Court did not commit
any illegality or mistake in comparing the
disputed thumb impressions with specimen,
thumb impressions of plaintiff at its own. (Para
35)

B. Evidence Law-Indian Evidence Act,
1872 - Section 71 - Burden of Proof -
Cancellation of Sale deed - Plaintiff
denying execution of sale deed - Burden
770 INDIAN LAW REPORTS ALLAHABAD SERIES
to prove execution of sale deed by
plaintiff
upon
the
defendant
by
producing marginal witness of sale deed
or by some other evidence - there can
be no burden to prove something
negative or to disprove any fact or
allegation

Held:- The "Burden of Proof" means burden to
prove some positive allegations and there can be
no burden to prove something negative or to
disprove any fact or allegation - Provisions of
Section 71 of Indian Evidence Act nowhere
required the plaintiff to produce marginal witness
of sale deed for disproving the same rather since
burden to prove execution of impugned sale deed
by plaintiff was on defendant, in view of
provisions of Section 71 of Indian Evidence, the
defendant had to produce marginal witness of
sale deed or to produce some other evidence to
which he failed and adverse inference was
required to be drawn against him to the effect
that had the marginal witnesses been produced to
witness box they would have denied execution of
impugned sale deed as well as payment of
consideration. Defendant could have adduced
other evidence to prove impugned sale deed, in
view of provisions of Section 71 of Indian
Evidence Act which has not been done by him.
(Para 30, 31)

C. Property - Entry in revenue Record -
Entries in revenue records are not proof
of title and possession - Mere mutation
of name in revenue records does not
create any right, title or interest in
absence of any real transaction

Held:- Plaintiff has stated on oath that he is
in actual physical possession over the land in
suit. Hence merely on account of mutation
entries obtained by defendant in revenue
records, in absence of any other cogent
evidence of his being in actual physical
possession over land in suit, the suit may not
be considered to be bad for not seeking relief
of possession, without there being any
conclusive proof of possession of defendant
over the land in suit. (Para 32, 33)

Second appeal dismissed (E-5)

List of Cases Cited: -
1.St. of Mah. Vs Sukhdev Singh & anr. AIR
1992 SC Page 2100.

2. Dayal Singh Vs St. of Uttaranchal (2012) 8
SCC 263.

3. Ram Lal Vs Phagna 2006 (1) SCC 168

(Delivered by Hon'ble Harsh Kumar, J.)

1. The instant second appeal has
been filed against judgment and decree
dated 8.4.1992 passed by Civil Judge
Balia in Civil Appeal No. 181 of 1989 by
which appeal was allowed and judgment
and decree passed by trial court i.e.,
Additional Munsif-VI, Ballia in Civil Suit
No.575 of 1985 dismissing suit on
15.4.1989 was set aside and plaintiff's suit
for cancellation of sale deed was decreed.
Feeling aggrieved the defendant has
preferred this second appeal which has
been
admitted
vide
order
dated
10.12.2003 on following two substantial
questions of law :-

E. Whether the lower Appellate
Court who himself compared the thumb
impression, ignoring the expert opinion is
justified?

G. Whether the provisions of
Section 71 of Indian Evidence Act, 1872
have
been
followed
by
the
lower
Appellate Court, if not, its effect?

2. The brief facts relating to the case
are that plaintiff respondent Ram Din
filed Civil Suit No.575 of 1985 in the
Court of Munsif Ballia (West) seeking
relief for cancellation of sale deed dated
20.5.1985, allegedly executed by Ram
Din in favour of Ram Janam, in respect of
the land, detailed at the foot of plaint viz.,
plot no.500A area 0.14 acre, 500B area
0.46 acre and 491 area 0.34 acre, total
three plots area 0.94 acres, which is
3 All. Ram Janam Vs. Ram Din
771
registered in Bahi No.Ist Zild 945 page 60
at
Sl.N.2066 on
3.6.1985.
It
was
contended that land in question situate in
village Chachia Pargana Sikardarpur
Garwi district Ballia of which plaintiff is
bhumidar in possession with transferable
rights and defendant has no right, title or
possession, over the same but when the
plaintiff was sowing paddy in his fields,
defendant Ram Janam disclosed that he
has obtained from him a sale deed of his
land, which appears to have been
obtained by impersonation of someone
else in place of plaintiff as plaintiff never
visited
office
of
Sub-Registrar
for
execution of deed. That plaintiff Ram Din
neither executed the impugned sale deed
nor presented the same for registration
before Sub-Registrar nor received any
sale consideration of Rs.16,000/- which is
shown to have been paid under the
impugned sale deed and is inadequate
also; that plaintiff is still in possession
over the land in suit.

3. The defendant filed written
statement denying the allegations of
plaint and contended that it is wrong to
say that sale deed has been obtained
through impostor rather the same was
executed on payment of valuable, valid
and adequate sale consideration and has
been executed in good faith.

4. On parties pleadings trial court
framed as many as four issues viz.,

(1)
Whether
sale
deed
in
question is liable to be cancelled for the
reasons given in plaint?

(2) Whether suit is barred by
provisions of Section 41 of Transfer of
Property Act?

(3) Whether suit is barred by
provisions of estoppel and acquiescence?

(4) Relief.

5. The plaintiff filed copy of
impugned sale deed and extract of
Khatauni as well as enlarged photographs,
negatives of disputed & specimen thumb
impressions of plaintiff Ram Din and
report of handwriting and finger print
expert and produced himself as P.W.-1,
one Ram Janam son of Hira as P.W.-2,
finger print & hand writing expert
Niranjan Lal Srivastava as P.W.-3 and
Jagat Kumar Srivastava, photographer as
P.W.-4. The defendant filed enlarged
photographs, negatives of disputed &
specimen thumb impressions of plaintiff
Ram Din, report of finger print and
handwriting expert and copy of question
answer seeking information and produced
Rajeev Ranjan Srivastava finger print and
handwriting expert as DW-1, Ram Janam
defendant himself as D.W.-2, Jagat
Kumar Srivastava, photographer as D.W.-
3 and Ram Badan/Bachan as D.W.-4.

6. The trial court in its discussions
on issue no.1 observed that finger print
and handwriting experts of plaintiff and
defendant have given report respectively
favouring them and since experts engaged
by each party usually gives report in
favour
of
the
same
party,
hence
considering other aspects it held that (i)
contention of sale consideration being
inadequate may not be accepted (ii) since
according
to
paper
no.54(c),
the
requirement of affixing photo of vendor
on sale deed came into effect w.e.f.
21.5.1985, so for not affixing photo on
sale deed dated 20.5.1985 the same may
not be cancelled (iii) since name of
defendant has been mutated in revenue
records and the plaintiff has not sought
any relief of possession so suit is not
maintainable and (iv) Jang Bahadur
772 INDIAN LAW REPORTS ALLAHABAD SERIES
marginal witness of sale deed was not
produced so adverse inference had to be
drawn against plaintiff. Consequnently
issue no.1 was decided against the
plaintiff and deciding other two issues in
negative, the suit was dismissed with
costs.

7. Against the judgment and decree
of trial court plaintiff filed Civil Appeal
No.181 of 1989 before District Judge,
Ballia which was transferred to the court
of Civil Judge for disposal and the lower
appellate court vide impugned judgment
and decree allowed the appeal with costs,
setting aside the judgment and decree
passed by trial court and decreed the suit
of plaintiff for cancellation of sale deed
with costs.

8. The lower appellate court in
agreement with the findings of trial Court
that reports of two experts favouring
plaintiff and defendant respectively, are
contradictory to each other held that in
the circumstances the trial court ought to
have examined the disputed thumb
impressions over the impugned sale
deed/Register
Form
No.8
and
the
specimen thumb impressions of plaintiff
on record, at its own but has committed
error in not doing so. The appellate court
has himself considered the two reports of
handwriting and finger print experts and
also examined and compared two thumb
impressions (disputed & specimen) and
upon such examination reached to the
conclusion that both thumb impressions
are different and are not the thumb
impressions of one and the same person.
Consequently it came to the conclusion
that
thumb
impressions
over
the
impugned sale deed do not belong to
plaintiff Ram Din and allowed appeal
setting aside impugned judgment and
decree and and restoring the judgment
and decree passed by trial Court.

9. Heard Shri P.K.S. Paliwal learned
counsel
for
defendant-appellant
(hereinafter referred as defendant) and
Shri Devendra Pratap Yadav learned
counsel
for
plaintiff-respondents
(hereinafter referred to as plaintiffs) and
perused the record as well as lower court
record summoned in the appeal.

10. The learned counsel for
defendant submits that learned lower
appellate
Court
acted
wrongly
and
illegally in examining and comparing the
disputed
thumb
impressions
over
impugned sale deed with the specimen
thumb impressions of plaintiff on record.
Relying on the law laid down by Apex
Court
in
the
case
of
State
of
Maharashtra vs. Sukhdev Singh and
another AIR 1992 SC Page 2100 he
referred to para No.32 of above judgment
wherein the Apex Court has given a
caution against venturing an opinion on
mere comparison of specimen/admitted
writings is being reproduced as under :-

"32. It was then submitted,
relying on section 73 of the Evidence Act,
that we should compare the disputed
material
with
the
specimen/admitted
material on record and reach our own
conclusion. There is no doubt that the
said provision empowers the court to see
for itself whether on a comparison of the
two sets of writing/signature, it can safely
be concluded with the assistance of the
expert opinion that the disputed writings
are in the handwriting of the accused as
alleged. For this purpose we were shown
the enlarged copies of the two sets of
writings but we are afraid we did not
consider it advisable to venture a
3 All. Ram Janam Vs. Ram Din
773
conclusion based on such comparison
having regard to the state of evidence on
record in regard to the specimen/admitted
writings of the accused Nos.1 and 2.
Although
the
section
specifically
empowers the court to compare the
disputed
writings
with
the
specimen/admitted writings shown to be
genuine, prudence demands that the
Court should be extremely slow in
venturing an opinion on the basis of mere
comparison, more so, when the quality of
evidence in respect of specimen/admitted
writings is not of high standard. We have
already pointed out the state of evidence
as regards the specimen/admitted writings
earlier and we think it would be
dangerous to stake any opinion on the
basis of mere comparison. We have,
therefore, refrained from basing our
conclusion by comparing the disputed
writings
with
the
specimen/admitted
writings."

11. The learned counsel for
appellant further contended that the lower
Appellate Court was not justified in
examining and comparing the two thumb
impressions and in displacing the decision
given by trial court, mere on the basis of
such comparison without setting aside
findings of trial Court on issue no.1; that
appeal is liable to be allowed and setting
aside judgment & decree of lower
appellate Court, judgment and decree
passed by trial Court are liable to be
restored dismissing suit of plaintiff with
costs.

12. Per contra learned counsel for
plaintiff-respondent
supported
the
impugned judgment and decree and
contended
that
the
plaintiff
never
executed the impugned sale deed and
since it does not bear his thumb
impression and has been obtained through
impersonation, the same is null and void
and is liable to be cancelled; that report of
finger print and handwriting expert is
relevant but its evidenciary value is of an
opinion and the opinion of expert is not
binding upon the Courts; that Niranjan
Lal Srivastava was the senior finger and
handwriting expert and his report is based
on correct analysation of disputed thumb
impressions
of
plaintiff
over
the
impugned sale deed and his specimen
thumb impressions taken in Court, while
the report of Rajeev Ranjan Srivastava
was based on incorrect analysis of
enlarged
photographs,
so
in
the
circumstances the lower appellate Court
acted rightly in accordance with law in
comparing the two thumb impressions at
its own and it has given detailed reasons
of analysis in respect of Delta, pattern,
core, intervening ridges etc; that the
comparison of handwriting and signatures
involves
more
complications
as
to
characteristics of writer viz., pen pressure,
speed, pen pause, position of hand and
finger etc. unlike the comparison of
thumb impressions which is scientific in
nature; that the signatures or writings by
two persons may have same pictorial
effect and it is difficult to analyze the
forgery, if any, but in case of thumb
impressions, since thumb impressions of
two persons may not be same with regard
to Delta with gap and number of ridges
upto core etc there are less chances of
mistake; that since the sale deed in
question was not executed by plaintiff so
other aspects as discussed by trial Court
were not relevant; that plaintiff had only
mentioned that there was no reason for
executing sale deed by him for inadequate
consideration of mere Rs.16,000/- but if
above ground may not be good for
cancellation of sale deed it may not be
774 INDIAN LAW REPORTS ALLAHABAD SERIES
inferred that execution of sale deed was
admitted to plaintiff; that plaintiff was not
required to produce Jang Bahadur, the
alleged marginal witness of sale deed
rather for not producing him, adverse
inference ought to have been drawn
against defendant; that the appeal has
been filed with absolutely false and
baseless
allegations
without
any
substantial question of law involved for
consideration and is liable to be dismissed
with costs throughout.

13. It is pertinent to mention that
documents of ''C' category viz., copies of
sale deed, extract of khatauni, photos and
reports of experts etc. are not on lower
Court record and are reported to have
been weeded out after stipulated period
and decision in first appeal.

14. The plaintiff has filed Civil Suit
for cancellation of sale deed dated
20.5.1985 seeking its cancellation on the
grounds (i) he did neither visit office of
Sub-Registrar nor executed impugned
sale deed, which has been obtained by
impersonation of some other person in his
place, (ii) Jang Bahadur did not sign
impugned sale deed as marginal witness
(iii) no consideration was paid to plaintiff
by defendant and in any case sale
consideration
of
Rs.16,000/-
was
inadequate (iv) as per rules affixation of
photo of vendor was necessary and the
same was not affixed as it was obtained
by impersonation and (v) plaintiff is in
actual physical possession over the
property in suit.

15. The trial court finding that the
reports of two fingerprint and handwriting
experts in contradiction with each other,
each one in favour of plaintiff and
defendant respectively, left to decide this
point in issue about existence of thumb
impressions of plaintiff over impugned
sale deed, though it was main point of
dispute to be decided for just and
appropriate decision of the suit. The other
grounds were ancillary in nature, rather
were circumstances belying execution of
impugned sale deed and trial court acted
wrongly, illegally and perversely in
deciding issue no.1 in negative upon
consideration of other aspects of (i)
affixation of photo being not required
under
rules
(ii)
inadequacy
of
consideration (of just Rs.16,000/- for
purchasing huge land of 0.94 acres) being
not valid ground for cancellation of sale
deed (iii) for not seeking relief of
possession and (iv) for not producing
Jang Bahadur the marginal witness of sale
deed, by plaintiff.

16. For consideration of substantial
question of law no.1 provisions+ of
Section 45 of Indian Evidence Act are
being reproduced hereunder for ready
reference:-

"Section
45.
Opinions
of
experts.--When the Court has to form an
opinion upon a point of foreign law or of
science or art, or as to identity of
handwriting [or finger impressions], the
opinions upon that point of persons
specially skilled in such foreign law,
science or art, [or in questions as to
identity
of
handwriting]
[or
finger
impressions] are relevant facts.

Such persons are called experts.
Illustrations."

17. The standard of proof in
criminal cases is different to some extent
from that required in civil cases. In
criminal cases entire evidence is to be
looked into with the presumption of
3 All. Ram Janam Vs. Ram Din
775
innocence of accused and Courts are
required to be cautious in relying or not
over the expert opinion including medical
expert report, if it is in contradiction with
ocular or other evidence of facts. In
criminal cases since liberty of a person
(who is presumed to be innocent) is
involved and Courts are required to go
slow, in relying on mere comparison and
may safely be advised to decide case,
ignoring such expert opinion, so as to
avoid possibility of conviction of an
innocent person/accused, as there is
requirement of proof of guilt of accused
to the hilt, beyond any shadow of doubt
and in case of any shadow of doubt
accused is entitled to be acquitted giving
him benefit of doubt. The decision of case
reported in AIR 1992 SC 2100 (supra)
relates to criminal trial and has no
application to this case.

18. With a difference, in civil cases
there is no concept of benefit of doubt to
either party and each party is required to
prove its case. In such cases proof or
disproof of a document may be decided
upon evidence adduced with the aid of
expert opinion of handwriting and finger
print expert (based on expert knowledge
of the science of finger and handwriting
expert) upon examination of disputed
signature, writing or thumb impressions
of a person, having been compared with
his specimen or admitted signature,
writing or thumb impressions. In such
cases when two conflicting opinions are
brought before the Court in the shape of
reports of two different finger print and
handwriting experts, produced each by
plaintiff and defendant, favouring each of
them respectively, it becomes the pious
duty of Court to examine and compare
itself
the
disputed
thumb
impressions/signatures/ writings etc. with
admitted or specimen thumb impressions
etc. as well as enlarged photographs
thereof, so as to determine the correctness
of expert opinion/report given by any of
the two handwriting and finger print
experts, and deciding the truth of the fact.

19. In civil cases courts may not be
justified in resiling from its duty of such
examination/comparison by itself by
leaving the issue of proof of thumb
impressions over any document (which
may be basis of case) undecided. In a suit
for cancellation of sale deed where there
is specific denial of execution of
impugned
sale
deed
and
specific
averment that impugned sale deed having
been obtained by impersonating some
other person in place of plaintiff, the
Court may not be justified in proceeding
with disposal of case, either by decreeing
or dismissing the case, without recording
any specific finding regarding thumb
impressions impugned sale deed bears
signature/thumb impressions of plaintiff,
if it rules out possibility of execution by
imposter and in case it does not bear
signature/thumb impressions of plaintiff,
(confirming execution by imposter in
place of plaintiff).

20. In the case of Dayal Singh Vs.
State of Uttaranchal (2012) 8 SCC 263,
the Apex Court held that :-

"The purpose of an expert
opinion is primarily to assist the Court in
arriving at a final conclusion. Such
report is not binding upon the Court. If
eye-witnesses'
evidence
and
other
prosecution evidence are trustworthy,
have credence and are consistent with the
eye version given by the eye-witnesses,
the Court will be well within its
jurisdiction to discard the expert opinion.
776 INDIAN LAW REPORTS ALLAHABAD SERIES
The Courts, normally, look at expert
evidence with a greater sense of
acceptability, but it is equally true that
the Courts are not absolutely guided by
the report of the experts, especially if
such
reports
are
perfunctory,
unsustainable and are the result of a
deliberate attempt to misdirect the
prosecution.

The
essential
principle
governing expert evidence is that the
expert is not only to provide reasons to
support his opinion but the result should
be directly demonstrable. The Court is
not to surrender its own judgment to that
of the expert or delegate its authority to a
third party, but should assess his
evidence like any other evidence."

21. In paragraph 40 of judgment the
Apex Court has observed:-

"We really need not reiterate
various judgments which have taken the
view that the purpose of an expert opinion
is primarily to assist the Court in arriving
at a final conclusion. Such report is not
binding upon the Court. The Court is
expected to analyse the report, read it in
conjunction with the other evidence on
record and then form its final opinion as
to whether such report is worthy of
reliance or not. Just to illustrate this
point of view, in a given case, there may
be
two
diametrically
contradictory
opinions of handwriting experts and both
the opinions may be well reasoned. In
such case, the Court has to critically
examine the basis, reasoning, approach
and experience of the expert to come to a
conclusion as to which of the two reports
can be safely relied upon by the Court.
The assistance and value of expert
opinion is indisputable, but there can be
reports which are, ex facie, incorrect or
deliberately so distorted as to render the
entire prosecution case unbelievable."

22. As per rule the office of SubRegistrar maintain several registers in
ordinary course of its business/day to day
working and at the time of execution and
registration of only sale deed, apart from
signatures office also use to obtain left
thumb impressions of excutants on
documents as well as on a register known
as "Register Form No.8 or NAMOONA
No.8" kept in the office.

It is noteworthy that :-

(i) The original of impugned
sale deed was not filed by defendant in
Courts below and no reason was assigned
for not producing the same.

(ii) Out of two reports of finger
print & handwriting experts on record,
one by Sri Niranjan Lal Srivastava for
plaintiff
states
that
two
thumb
impressions (disputed and specimen) are
not identical and do not tally with each
other and may not be of one and the same
person, but to the contrary, another report
by Sri Rajiv Ranjan Srivastava for
defendant with contrary opinion states
that both thumb impressions are identical
and tally with each other.

(iii) None of the above two
experts are qualified experts of the
"science of finger prints and handwriting"
and none of them is alleged to have
acquired special knowledge of subject, by
obtaining any degree or diploma in the
course of "science of handwriting and
finger prints" rather both the experts have
stated that they acquired knowledge under
training with some other finger print and
handwriting expert and are working
independently
as
finger
print
and
handwriting expert, (a) Niranjan Lal
Srivastava expert of plaintiff since 1972
3 All. Ram Janam Vs. Ram Din
777
and (b) Rajiv Ranjan Srivastava expert of
defendant since 1977.

(iv) The photos of disputed and
specimen thumb impressions (D-1 & S-1)
were not taken by any of above two
experts, rather each of them prepared
reports upon examination of photos taken,
prepared and provided to each of them by
one Jagat Prasad photographer, who has
been produced one, as P.W.-4 and again
as D.W.-3.

(v) The trial court finding two
reports of experts unworthy of reliance,
ignored them and without deciding the
main issue, as to whether impugned sale
deed bears thumb impressions of plaintiff
or not, decided issue no.1, in negative is
absolutely wrong, illegal, incorrect and
perverse manner.

23. It is pertinent to mention that
main ground for cancellation of sale deed
was that it is null and void as was not
executed by plaintiff and has been
obtained by impersonation of some other
person in his place and other grounds of
inadequacy of sale consideration (of just
Rs.16,000/- for huge land of 0.94 acres),
non affixation of photo etc. were
mentioned as ancillary circumstances to
rule out possibility of execution of sale
deed by him. In such a suit for
cancellation of sale deed on ground of
denial of execution with specific plea that
plaintiff never visited office of SubRegistrar for execution, never executed
impugned sale deed and that it has been
obtained by impersonation of some other
person in place of plaintiff, if the Court
comes to the conclusion that impugned
sale deed bears thumb impression or
signatures of vendor i.e. plaintiff, the sale
deed may not be cancelled and suit is
bound to be dismissed and on the other
hand if the Court comes to the conclusion
that impugned sale deed does not bear
signatures/thumb impressions of vendor
i.e. plaintiff, it will be suffice to hold that
the same has been obtained through
impostor in which case sale deed may not
stand irrespective of the fact that other
circumstances/ grounds are proved or not
(as they loose their relevancy) and suit is
bound to be decreed as such a sale deed is
null and void-ab-intio. In such a case the
Court if finds that impugned sale deed
does
not
bear
thumb
impressions/
signatures of plaintiff, the alleged vendor,
it may not be justified in refusing to pass
a decree for cancellation of sale deed
under any imagination even if other
ancillary
grounds/circumstances
of
inadequacy of consideration etc. were not
proved. The trial Court acted wrongly,
illegally & perversely in deciding issue
no.1 in negative and dismissing the suit
without deciding the issue of thumb
impressions
of
plaintiff
over
the
impugned sale deed and without holding
that impugned sale deed bears thumb
impressions of plaintiff.

24. The lower appellate Court has
examined and compared the disputed left
thumb
impression
of plaintiff
over
Register
NAMOONA
(Form)
No.8
(hereinafter referred to as D-1)and his
specimen LTI taken in Court (hereinafter
referred as S-1) and upon analysation of
various characteristics has narrated in
detail the several points of differences
between the two thumb impressions (D-1
and S-1) in more than two pages of
impugned judgment with respect to
position of Delta, pattern of loop, space
between ridges, direction of ridges, gap
between Delta, core and ridges etc. and
upon such detailed comparison upon
finding the opinion given in report of
finger print and handwriting expert Shri
778 INDIAN LAW REPORTS ALLAHABAD SERIES
Nirnjan Lal Srivastava P.W.-3 to be based
on correct and cogent reasonings has
found it reliable and accepted it, while
finding the opinion given in report
submitted by Rajiv Ranjan Srivastava
expert of defendant to be incorrect and
unreliable
has
discarded
the
same.
Admittedly
the
disputed
thumb
impression marked by D-1 do also not
tally
with
specimen
right
thumb
impression of plaintiff marked by S-2.

25. The lower appellate Court has
very rightly discussed the entire evidence
on record and the opinion given in reports
of two fingerprint and handwriting
experts and compared the two thumb
impressions analyzing the characteristics
as mentioned earlier. Since the lower
appellate Court upon examination of two
thumb impressions has come to a definite
conclusion
that
disputed
thumb
impression D-1 of vendor of impugned
sale deed on Register NAMOONA
(Form) No.8, relating to impugned sale
deed, mentioned above did not tally with
specimen left thumb impression S-1 of
plaintiff, so under any imagination the
impugned
sale
deed
may
not
be
considered to be either bearing his thumb
impressions or to having been executed
by
plaintiff,
rather
clearly
indicates/proves that it was obtained by
impersonating some other person in place
of plaintiff as per plaintiff's specific case
in plaint.

26. It is pertinent to mention that
since the impugned sale deed was found
to be not bearing thumb impression of
plaintiff over it, the other ancillary
grounds/circumstances,
loose
their
relevancy. It is also pertinent to mention
that appellant has failed to show any
incorrectness in the comparison so made
with regard to various characteristics of
two
thumb
impressions
by
lower
appellate Court.

27. The lower appellate Court has
committed no mistake in disagreeing with
findings of trial Court on issue no.1 and
in allowing appeal by setting aside the
wrong, illegal and perverse judgment and
decree passed by the trial Court.

28. The substantial question of law
No.1 is accordingly decided in affirmative
against the appellant in favour of
respondent.

29. As far as substantial question of
law no.2 is concerned, Section 71 of
Evidence
Act
is
being
reproduced
hereunder :-

"Section
71.
Proof
when
attesting witness denies the execution - If
the attesting witness denies or does not
recollect the execution of the document,
its execution may be proved by other
evidence."

30. The "Burden of Proof" means
burden to prove some positive allegations
and there can be no burden to prove
something negative or to disprove any
fact or allegation. The learned counsel for
appellant has failed to place any legal
provision under which marginal witness
of impugned sale deed (in favour of
defendant) could be required to be
produced by plaintiff in order to disprove
the same and adverse inference if at all
may be drawn against him for not
producing
marginal
witness
Jang
Bahadur. To the contrary "Burden of
Proof" to prove impugned sale deed, in
his favour lies on defendant. He was
required to prove it by producing
3 All. Ram Janam Vs. Ram Din
779
marginal witnesses and since he has failed
to produce any of the 2 marginal
witnesses of impugned sale deed, adverse
inference was required to be drawn
against him to the effect that had the
marginal witnesses been produced to
witness box they would have denied
execution of impugned sale deed as well
as payment of consideration. In any case
he could have adduced other evidence to
prove impugned sale deed, in view of
provisions of Section 71 of Indian
Evidence Act which has not been done by
him.

31. The trial Court acted wrongly,
illegally and perversely in drawing
adverse inference against plaintiff for not
producing
Jang
Bahadur,
marginal
witness of impugned sale deed. The
appellate Court has very rightly held that
defendant has neither produced original
sale deed nor produced any of the two
marginal witness, nor produced any other
evidence in order to prove execution of
impugned sale deed as well as to prove
payment of sale consideration, so adverse
inference ought to have been drawn
against defendant and not the plaintiff.
The provisions of Section 71 of Indian
Evidence Act nowhere required the
plaintiff to produce marginal witness of
sale deed for disproving the same rather
since burden to prove execution of
impugned sale deed by plaintiff was on
defendant, in view of provisions of
Section 71 of Indian Evidence, the
defendant had to produce marginal
witness of sale deed or to produce some
other evidence to which he failed.

32. It is settled principle of law that
entries in revenue records are not proof of
title and possession and the possession
goes with title. In the case of "Ram Lal
Vs. Phagna, 2006 (1) SCC 168" the
Apex Court held.

"Mere mutation of name in
revenue records does not create any right,
title or interest in absence of any real
transaction".

33. The plaintiff claims that he
never visited office of Sub-Registrar and
never transferred the suit land by
executing impugned sale deed, which has
been obtained through impostor and has
denied
delivery
of
possession
to
defendant. He has stated on oath that he is
in actual physical possession over the
land in suit. Hence merely on account of
mutation entries obtained by defendant in
revenue records, in absence of any other
cogent evidence of his being in actual
physical possession over land in suit, the
suit may not be considered to be bad for
not seeking relief of possession. The trial
Court was wrong and incorrect in holding
the suit not maintainable merely in view
of mutation entries of defendant and
perverse findings on issue no.1, without
there being any conclusive proof of
possession of defendant over the land in
suit.

34. Substantial question of law no.2
is accordingly decided in affirmative
against the appellant in favour of
plaintiff-respondent.

35. In view of the discussions made
above, I have come to the conclusion that
lower appellate Court did not commit any
illegality or mistake in comparing the
disputed
thumb
impressions
with
specimen, thumb impressions of plaintiff
at its own. The findings of lower appellate
Court are not based on mere comparison
rather it has followed the provisions of
780 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Evidence Act, it has found the
opinion given in report of expert Niranjan
Lal Srivastava P.W.-3 to be correct and
conflicting opinion given in report of
expert Rajeev Ranjan Srivastava D.W.-1
to be incorrect. The lower appellate Court
has not committed any error of law in
reference with following the provisions of
Section 71 of Indian Evidence Act.

36. The two substantial questions of
law framed in this appeal are, therefore,
decided in affirmative against defendantappellant and in favour of plaintiffrespondent. No other substantial question
of law was raised or arises in the appeal.
The appeal is devoid of merits and there
is no sufficient ground for setting aside
the impugned judgment and decree
passed by lower appellate Court or for
restoring the judgment and decree passed
by the trial Court.

37. The appeal is liable to be
dismissed with costs.

38. The appeal is accordingly
dismissed with costs throughout, the
impugned judgment and decree are
affirmed.

39. Let the lower court record be
sent back to the court below along with
copy of this judgment for necessary
compliance after preparation of decree.
----------

(2019)11ILR A780

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2019

BEFORE
THE HON'BLE BHARATI SAPRU, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.
Income Tax Appeal No. 52 of 2014
with
Income Tax Appeal No. 55 OF 2014

M/s Meeraj Estate & Developers
 ...Appellant
Versus
Commissioner of Income Tax, Agra
 ...Respondent

Counsel for the Appellant:
Sri Rahul Agarwal

Counsel for the Respondent:
C.S.C.

A. Income Tax Law- Income Tax Act,
1961: Sections 2(13), 9, 142(1), 143(2),
143(3), 145 - Whether the property
acquired
by
the
assessee
and
subsequently entered into an agreement
with GAIL and receipts at the hand of
assessee pursuant to the agreements is
assessable under the head 'income from
business or income from house property or
income from other sources.' (Para 17)

B. Income Tax Law- Income Tax Act, 1961:
Principal of res-judicata does not apply to
tax matters for different assessment years -
Res - judicata applies to debar courts from
entertaining issues on the same cause of action,
whereas cause of action for each assessment year
is distinct. (Para 18 to 22)

Where a fundamental aspect permeating
through different assessment years has been
found as a fact one way or the other, and
parties have allowed that position to be
sustained by not challenging the order, it
would not be at all appropriate to allow the
position to be changed in subsequent year,
unless there was a material change justifying
the revenue to take different view. In the
present case AO found sufficient materials and
changes. (Para 22, 23)

C. Income Tax Law- Income Tax Act, 1961:
Words & Phrases - "business activity" -
Merely by providing in the object clause to
conduct
activity
with
respect
to