JUDGMENT :

A.K. Rath, J.

This is a defendant’s appeal against confirming judgment.

2. Plaintiff-respondent instituted the suit for specific performance of contract. The case of the plaintiff was that appellant as plaintiff instituted O.S. No.175 of 1967-I in the court of the learned Munsif, Bhadrak against one Banamali Rout. The suit was decreed. The decree-holder levied Execution Case No.5 of 1973. During pendency of the execution case, the judgment-debtor died. The present plaintiff being the sole legal representative of the judgment-debtor was substituted. A compromise was arrived at between the parties. On 30.1.1973, a Mimansa Patra, Ext.1, was executed. The defendant agreed to sell the suit land to the plaintiff for a consideration of Rs.120/-and would get the costs incurred by him in the suit. The plaintiff paid Rs.20/-to the defendant towards part performance of contract and cost. The defendant agreed to execute a registered sale deed to the plaintiff in respect of the suit land within a period of four months from the date of compromise after receipt of balance consideration. The plaintiff offered the balance consideration amount to the defendant and requested him to execute the registered sale deed in her favour. She was willing to perform her part of contract. But the defendant refused to execute the sale deed. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.

3. The defendant entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant was that Ext.1 was a fraudulent one. The document was tailor-made. He had not executed any document in favour of the plaintiff.

4. On the interse pleadings of the parties, learned trial court struck nine issues. Parties led evidence, oral and documentary, to substantiate their respective cases. Learned trial court decreed the suit. Felt aggrieved, the defendant filed T.A. No.16 of 1978 before the learned Sub-ordinate Judge, Bhadrak. The appeal having been allowed, the plaintiff filed Second Appeal No.182 of 1980 before this Court. This Court held that the moot point for consideration is as to whether Ext.1 had been executed by the defendant or not. Learned lower appellate court failed to bear in mind the real point in controversy as a final court of fact. The learned lower appellate court could have compared the signature of the defendant on Ext.1 with the signature of the defendant on the loan paper. It came to a conclusion that the signature on Ext.3 is that of the defendant. The learned lower appellate court as a final court of fact is duty bound to consider all the issues the materials on the same and the findings of the trial court on them. In the present case that has not been done. This Court remanded the matter to the learned lower appellate court for redisposal of the appeal in accordance with law. After remand, learned lower appellate court came to a finding that Exts.1/a and 1/b are the signatures of the defendant and held that the signature appearing in Ext.3 is the signature of the defendant. The plaintiff was willing to perform her part of contract. Defendant failed to do so. Held so, it concurred with the finding of the learned trial court and dismissed the appeal.

5. The second appeal was admitted on the following substantial questions of law.

“(1) Whether the courts below are correct in giving the finding that Ext.1, the deed of agreement is genuine ?

(2) Whether the report of the handwriting expert can be acted upon when he has not given any definite finding ?”

6. Heard Mr. Manoj Kumar Agarwal, learned counsel on behalf of Mr. D.P. Dhal, learned counsel for the appellant and Mr. Alok Kumar Mohanty, learned counsel on behalf of Mr. P. Kar, learned counsel for the respondent.

7. Mr. Agarwal, learned counsel for the appellant, submitted that the plaintiff had not executed any agreement to sell, Ext.1. Ext.1 is tailor-made. He further submitted that it is not safe to treat expert evidence a