IMPORTANT POINT
The judgment established the importance of corroborative evidence, the impact of possession in part performance under Section 53A of the Transfer of Property Act, and the changes in the Specific Relief Act regarding the discretion of the Court in passing a decree for specific performance.

JUDGMENT :

1. A suit for specific performance of an agreement for sale of an immovable property filed by the plaintiffs/respondents was decreed and the judgement of the Trial Court was affirmed by the Appellate Court.

2. The present Second Appeal has been filed assailing the judgement of both the Courts below on the premise that the judgement is infirm and erroneous to the extent that no corroborative evidence was produced in relation to the signature appended on the agreement for sale.

3. It is thus contended that both the Courts have proceeded to rely upon the report of the handwriting expert, which is merely ‘opinion evidence’ and the judgement based thereupon is illegal and, therefore, raises substantial questions of law. It is further argued that though the plaintiffs/respondents claimed possession in part performance of an agreement for sale, but miserably failed to prove the possession and, therefore, the Court ought not to have believed the statement of the plaintiffs in relation to the genuinity and authenticity of the agreement for sale. Lastly it is submitted that the plaintiffs/respondents did not seek decree of possession upon specific performance of an agreement for sale and, therefore, the decree, which is otherwise incapable of being executed in its entirety, cannot be regarded as valid in the eye of law.

4. An ancillary point is also taken that the decree was passed against the present appellants being the defendant nos. 1 and 2, who admittedly conveyed and transferred the subject property to the defendant nos. 5 and 6 and, therefore, such decree cannot be executed against the present appellants.

5. Admittedly in a suit for specific performance of an agreement for sale of an immovable property, the agreement was tendered in evidence and exhibited in the case. The specific defence was taken on the genuinity and authenticity of the said agreement for sale, as according to the appellants they never executed the said agreement.

6. Obviously the moment the signature appended on the agreement for sale is disputed, on the prayer of the plaintiffs/respondents a handwriting expert was appointed and the report revealed that there is no disparity in the signature appearing in the admitted documents and the purported agreement for sale.

7. We are not unmindful of the proposition of law that the Court cannot base its decision solely on the report submitted by an expert. The report cannot be said to be conclusive on the above aspect as it is merely an ‘opinion evidence’ and, therefore, to be corroborated with the convincing materials. The witnesses to the agreement were cited as witnesses before the Trial Court who in unequivocal terms deposed that the appellants executed the agreement by putting their signatures in their presence. There was no suggestion, which was given to such witnesses in the cross-examination in relation to such categorical statements made by them.

8. It is a cardinal rule of evidence that the statement made in the examination-in-chief having not controverted in the cross-examination it goes unchallenged and there is no difficulty in accepting such statement as a statement of truth. However, a point is sought to be raised that those witnesses are related to the plaintiffs/respondents, but both the Courts declined to accept such stand and did not find that the aforesaid witnesses are not trustworthy.

9. The possession in part performance of an agreement for sale does not affect the validity and authenticity of the agreement for sale. The moment plaintiffs/respondents have conclusively proved the due execution of the agreement for sale even if the plaintiffs/respondents have failed to prove that the possession of the subject property in part performance of the said agreement, it does not invalidate the agreement for sale.

10. The concept of Section 53A of the Transfer of Property Act is to protect the possession obtained in part performance of an agreement for sale. It does not have any impact on the validity or g