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Judgment
This revision petition is filed against the order dated 03.09.2012 in I.A.No.866 of 2012 in O.S.No.977 of 2006 on the file of I Additional District Judge, Ranga Reddy District.
Petitioner in I.A.No.866 of 2012 is defendant No.6 in the suit. The said petition is filed under Section 45 of the Indian Evidence Act r/w. Section 151 CPC. Respondent Nos.7 and 16 are shown as proforma parties in the said I.A.
It is the contention of the revision petitioner/defendant No.6 that the suit was filed by plaintiffs 1 to 6 based on the forged sale deeds, which is apparent even to the naked eye and there is every necessity to send the impugned sale deeds to the handwriting expert for opinion.
Heard both sides and perused the record.
It is urged by the learned counsel for petitioner that initially I.A.No.1987 of 2009 was filed for the same relief, but the trial Court dismissed it on 31.08.2010 with a finding that it was not the stage to move such application under Section 45 of the Indian Evidence Act. It was further observed in I.A.No.1987 of 2009 that though the petitioner relied on the judgment reported in 2009(6) ALD 6, the application in the said judgment i.e. I.A.No.1239 of 2009 was not moved under Section 45 of the Evidence Act, but it was filed under Order 13 Rule 8 r/w. Section 151 CPC. It is further urged that the sale deeds in the present case are coming up for marking as exhibits under ‘A’ series, for which, he was constrained to file the present I.A. for sending them to the handwriting expert at Government Forensic Lab, Hyderabad in order to obtain opinion as to the genuineness of the signatures and thumb impressions on those documents.
A detailed counter was filed before the trial Court contending that the petition was hit by the principle of res judicata as the similar application filed earlier was dismissed and the said orders of the trial Court have become final as no appeal or revision was preferred against the said orders.
It is urged by the learned counsel for respondents that the suit was filed for permanent injunction restraining the respondents and their men and it is not a suit for declaration, so as to look into the title. It is also the contention of the learned counsel for respondents that title can be looked incidentally in a suit for permanent injunction and it is for the plaintiff to establish his case. It is also urged by the learned counsel for respondents that Section 73 of the Indian Evidence Act gives ample power to the Court to compare the signatures when an allegation is made by a party that the sale deeds are forged.
The record discloses that the trial Court has given a finding that the principles of res judicata does not arise in this case though both the petitions are filed under Section 45 of the Indian Evidence Act. But it is the finding of the trial Court that the signatures cannot be compared by the Court under Section 73 of the Indian Evidence Act as the Court is not technically trained or qualified to make such comparison. In this connection, the trial Court has relied on the judicial precedent of this Court in the case of Singamaneni Ramadevi v. Eruvuri Hanumayamma & others 2011 (6) ALD 419. In paras 5 and 6 of the said judgment, it is held as under :
“5. It is no doubt true that the petitioner made an effort to get the alleged thumb impression said to have been put in proof of receipt of the amount of Rs. 6,000/- examined by a Handwriting Expert by filing the applications in the trial Court as well as lower appellate Court and that they were dismissed on several grounds. The fact, however, remains that an exercise of that nature can be undertaken if only the petitioner can claim the relief of declaration of title.
In a suit for injunction, it is not at all permissible to delve into that question, much less to permit the evidence touching upon the proof of title to the property. The compliance with the conditions stipulated in the sale deed would certainly have bearing upon the proof of title. Though not on the grounds furnished by the lower appellate Court, this Court finds that the whole exercise undertaken by the petitioner is futile.”
Thus, the trial Court came to a conclusion that it is most uncalled for handwriting expert in respect of the disputed documents in a suit for bare perpetual injunction and if at all, the plea of the defendant No.6/petitioner in the application is that forgery is apparent even to the naked eye. If that being so, it is nothing but a futile exercise on the part of the petitioner for sending the documents to the handwriting expert for comparison and opinion. With the above observations, the petition was dismissed.
Learned counsel for respondents has relied on the judgment of Hon’ble Supreme Court in Satyadhyan Ghosal & others v. Smt. Deorjin Debi & another AIR 1960 SC 941, wherein, their Lordships have held as under :
“The principle of res judicata applies as between two stages in the same litigation to this extent that a Court whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter against at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation, consider the same matter again.”
In view of the above judgment, even res judicata applies if two applications are being filed one at the earlier stage and another at a later stage and when the earlier order was not challenged and attained finality. Therefore, this judgment squarely applies to the facts of the present case.
In another judgment relied on by the learned counsel for respondents in J.L.Babu v. S. Gowri Shankar & another 2009 (6) ALD 6, it is held by this Court at paras 5 and 6 as under :
“5. …..Sending of a document under Section 45 of the Act, for opinion of an expert, is a step in the direction of proof. The exercise as regards proof of the document would only start with the commencement of trial. The C.P.C., as well as the Evidence Act enshrine the principles, that are relevant in this regard, touching upon the burden, the priority to be followed in the context of adducing evidence etc. When the burden squarely rests upon the petitioner to prove the documents relied upon by him, it could, not at all be the genuine concern of the respondents, to initiate steps for disproving it.
….In contrast, during the course of evidence by the defendants, the concerned witness may admit the signature on a document, notwithstanding the denial of the same in the written statement. Therefore, the actual stand of the parties would emerge, only after the witnesses, who assert about the genuinity of the document, or those who signed it, depose before the Court. Taking of any steps under Section 45 of the Act, before that stage, is prone to lead to several complications.”
As per the above judgment, the burden lies exclusively on the plaintiff to prove that the documents relied upon by him are genuine and it is not at all the concern of the respondents to initiate steps for disproving it. This judgment also squarely applies to the facts of the case on hand.
Even Section 101 of the Indian Evidence Act envisages that whoever asserts a particular fact, it is for them to prove it. Since the plaintiffs have filed the sale deeds (alleged forged sale deeds), it is for them to prove that they are the rightful owners of the property. Moreover, this is a suit for bare perpetual injunction and it is for the plaintiffs to prove that they are in possession of the suit schedule property and it is for the trial Court to decide on merits as to the evidentiary value of the documents which are sought to be marked before the Court as exhibits.
As discussed above, since the present suit is for bare injunction, the burden of proof is on the plaintiffs to prove that they are in possession of the suit schedule property. The documents on which the plaintiffs are relying, are alleged to be forged and fake documents, but those documents relate to the title, but not to prove the possession of the property. Therefore, I find no error or irregularity in the order passed by the trial Court.
Accordingly, the revision petition is dismissed. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.