Expert Evidence--Opinion of an expert cannot be preferred, once direct evidence to the contrary is available on record

ANIL KSHETARPAL, J.

CM No.4060-C-2018 in RSA No.1520-1990

1. Application is for permission to place on record a compromise deed arrived at between Sona Singh and Malkiat Singh. As per the compromise deed, which is signed by Sona Singh, he has agreed to execute the sale deed in favour of Malkiat Singh. In fact, this application should have been filed in RSA-1517-1990. Both the counsels, who were present at the time of hearing, have also made a statement that a compromise deed is signed by Sona Singh and Malkiat Singh. Overlooking technicalities, application is deemed to be filed in RSA No.1517-1990.

2. In view of the aforesaid, RSA-1517-1990 qua the share of Sona Singh shall stand disposed of in terms of the compromise. The deed of compromise shall form part of the decree.

RSA-1520-1990

3. By this judgment, two appeals arising between the same parties with respect to same property in dispute, which are connected, are being disposed of.

RSA No.1517 of 1990

4. Plaintiff-appellant is in the regular second appeal against the concurrent finding of fact arrived at by the Courts below while dismissing the suit for specific performance of the agreement to sell dated 23.09.1975.

5. Plaintiff filed a suit for specific performance of agreement to sell dated 23.09.1975 with the assertion that the defendants had entered into an agreement with the plaintiff with respect to the half share of the land i.e. 73 kanals and 5 marlas out of total measuring 146 kanals and 9 marlas. It was pleaded that the entire sale consideration was paid at the time of entering into an agreement to sell. There were 10 defendants in the suit, agreement to sell is alleged to have been entered with all of them.

6. Defendants contested the suit and pleaded that no agreement to sell was executed and the amount as alleged has not been received. It was pleaded that the defendants except Sona Singh and Nazar Singh had appointed Jaswant Singh son of Malkiat Singh (plaintiff) as their attorney on 13.09.1975 for management of the land in dispute and for getting the mutation sanctioned in their favour but it appears that the plaintiff in connivance with his son has succeeded in fabricating the alleged agreement to sell on the same day. It was pleaded by the plaintiffs that their thumb impressions might have been obtained in the process of getting thumb impressions and signatures on the power of attorney.

7. Learned trial Court after appreciating the evidence available on the file, dismissed the suit while recording the following reasons:-

(i) hand writing expert has opined that thumb impression of Nazar Singh do not match/tally;

(ii) Sona Singh was minor at that time;

(iii) power of attorney and agreement to sell were scribed through different scribes;

(iv) power of attorney dated 23.09.1975 has not been produced on file.

(v) attesting witness-Kewal Singh only knew Jarnail Singh, therefore, he was not known personally known to remaining defendants.

8. First appeal preferred was also dismissed on the ground of delay as well as on merits. Learned First Appellate Court has refused to condone the delay of less than 3 months. Learned First Appellate Court has also recorded following reasons to dismiss the appeal.(i) Opinion of the expert proves that Nazar Singh has not thumb marked the agreement to sell. (ii) Sona Singh was minor on the date of agreement to sell was executed and therefore, he could not enter into any agreement to sell. (iii) The plaint does not contain pleadings that the plaintiff was always ready and willing to perform his part of the contract and, therefore, evidence led by the plaintiff would be beyond pleadings. No application under Section 12 of the Specific Relief Act has been filed for requesting the Court to leave the share of the minor defendant and decreed the suit with respect to remaining share. The learned First Appellate Court although noticed that in the learned trial Court, plaintiff did move an application, which was dismissed.

9. In the considered opini