The main legal point established in the judgment is the limitation for filing a counter-claim for specific performance and the admissibility of expert opinions under the Indian Evidence Act, 1872.

JUDGMENT

Anil Kshetarpal, J. - The appellant, in both the appeals, is a defendant in a suit for grant of decree of declaration to the effect that the plaintiff is the owner in possession of the property and the alleged power of attorney executed on 21.08.1990, (registered on 22.08.1990), by Mohinder Singh in favour of Sukhdev Singh, is a result of forgery. Consequently the sale deed dated 13.05.1995, executed by Sukhdev Singh, in favour of his wife, is not binding on the rights of the plaintiff. Late Sh. Mohinder Singh is the original plaintiff, whereas, Sukhdev Singh and Darshan Kaur are the defendants. The defendants filed a counter claim for grant of decree of possession by way of specific performance of the agreement to sell dated 11.03.1989.

2. In the considered opinion of the Court, the following question arises for adjudication:-

'Whether a report containing the opinion of a handwriting and fingerprint expert, prepared during the pendency of a criminal case, can be relied upon in a civil suit without ensuring examination and cross-examination of the author?'

Some admitted facts are as under:-

1. Mohinder Singh son of Swaran Singh was owner in possession of the land located in village Gill on 11.03.1989, he on receipt of Rs.50,000/- out of a total agreed sale consideration of Rs.6,30,000/-, on 11.03.1989, executed an agreement to sell in favour of Sukhdev Singh with respect to land measuring 6300 square yards, at the rate of Rs.100 per square yard. The vendor agreed to execute the sale deed of the land in parts.

2. It was agreed that Rs.1,50,000/- shall be payable on 20.04.1989. Thereafter, Sukhdev Singh shall pay Rs.1,50,000/- after a period of every four months from 20.04.1989, in order to pay the entire balance amount. The sale deed was to be executed and registered within a period of 20 months from the date of agreement to sell. After harvesting the crops, the possession of the land shall be handed over to the vendee on 20.04.1989.

3. In other words, the sale deed was to be executed on or before 10.11.1999.

4. Mohinder Singh received Rs.5,94,000/- out of total sale consideration of Rs.6,30,000/-. Mohinder Singh executed a registered General Power of Attorney in favour of Sukhdev Singh on 03.10.1989, with respect to land measuring 1000 square yards. Receipt of Rs.50,000/-, dated 18.04.1989, executed by Mohinder Singh on receipt specifically recites about delivery of physical possession.

3. Now, the disputed facts are that late Sh. Mohinder Singh claimed that he never executed the registered General Power of Attorney dated 21.08.1990, in favour of the Sh. Sukhdev Singh with respect to land measuring 2500 square yards. Sh. Sukhdev Singh claimed that he has paid the entire sale consideration, whereas, late Sh. Mohinder Singh claimed that he has received Rs.5,94,000/-. Sh. Sukhdev Singh (the defendant) on the basis of the registered General Power of Attorney dated 21.08.1990, executed a registered sale deed dated 15.05.1994, (registered on 16.05.1994) in favour of his wife with respect to the land measuring 2500 square yards. Sh. Sukhdev Singh filed a counter claim on 25.05.1996, claiming relief of decree of possession by way of specific performance of the agreement to sell.

4. The trial Court, after examining the pleadings of the respective parties, framed the following issues:-

'1. Whether the plaintiff is owner in possession of the property fully detailed in the head note of the plaint? OPP

2. Whether the sale deed executed by the Ist defendant in favour of defendant No.2 dated 16.5.94 is illegal null and void? OPP

3. Whether general power of attorney dated 21.8.90 is illegal, null and void? OPP

4. Whether the plaintiff is entitled to claim the relief of permanent injunction regarding alienation and posession qua the suit property? OPP

5. Whether Ist defendant is entitled to counter claim by way of specific performance of agreement dated 11.3.89? OPD-1

6. Whether Ist defendant is entitled to possession of the suit property? OPD

7. Whet