JUDGMENT

The judgment dated 24.02.2005 in A.S.No.60/2003 passed by the 1 st Additional District Court, Kozhikode is under challenge in this Regular Second Appeal. A.S.No.60/2003 arose from the judgment dated 30.01.2002 in O.S.No.293/1999 passed by the Subordinate Judge's Court, Kozhikode. The defendant who lost his case in the Courts below is the appellant. The plaintiff is the respondent.

2. Material facts relevant for the adjudication of this appeal are as follows:

2.1. The appellant/defendant and his wife were the owners of a landed property covered by assignment deed No.2705/1986 of S.R.O, Kakkadi. The defendant wanted to sell that property. The plaintiff agreed to purchase the property for a consideration of Rs.3 Lakhs. An agreement was executed on 17.11.1998 between the parties

(Ext.A1). The plaintiff paid a sum of Rs.1 Lakh as advance. He agreed to pay the balance amount within six months. The plaintiff was ready and willing to perform his part of the agreement. But the defendant was neither ready to transfer the property nor return the amount received as advance. The plaintiff instituted the suit for realising the advance amount from the defendant.

2.2. The defendant resisted the suit contending that he had not executed Ext.A1 agreement as pleaded. He also denied receipt of

Rs.1 Lakh as advance consideration for the property owned by him. According to the defendant, he had been conducting a business in the name and style “Shoby Auto Consultant”, a partnership business. The plaintiff obtained four blank cheques from the defendant making him believe that the cheques were required for availing a financial loan. Later, when the parties fell apart, the partnership was dissolved. Exhibit A1 agreement relied on by the plaintiff is a concocted document. The defendant had not affixed his signature in

Ext.A1 agreement.

3. The parties went to trial. PWs 1 and 2 were examined and

Exts.A1 and A2 were marked on the side of the plaintiff. No evidence was adduced on the side of the defendant.

4. The Trial Court decreed the suit allowing the plaintiff to realise Rs.1 Lakh with interest @ 6% per annum from the date of the suit till realisation with costs. The defendant challenged the decree passed by the Trial Court by filing A.S.No.60/2003. The First Appellate Court confirmed the judgment and decree of the Trial Court.

5. This Court admitted the appeal on the following substantial question of law:

“Is it proper and legal for the court to compare the disputed signature and form an opinion that signatures of the defendant in written statement and Ext.A1 agreement are the same.”

6. Heard Sri.T.G.Rajendran, the learned counsel appearing for the appellant/defendant and Sri.M.Muhammed Shafi, the learned counsel appearing for the respondent/plaintiff.

7. The learned counsel for the appellant contended that the Trial Court was not justified in entering into a conclusion as to the execution of Ext.A1 agreement relying on the comparison made by the Court itself of the disputed signature in Ext.A1 and the admitted signatures of the defendant in the written statement. The learned counsel further contended that the plaintiff failed to establish the execution of Ext.A1 agreement. The learned counsel also contended that the failure of the plaintiff to mount the box and give evidence in support of the pleadings in the plaint is fatal to the case pleaded by him.

8. Per contra, the learned counsel for the respondent/plaintiff contended that there is ample evidence to establish the execution of

Ext.A1 agreement and receipt of advance money as pleaded by the plaintiff. The learned counsel further contended that even without the opinion formed by the Trial Court, comparing the disputed and admitted signatures of the defendant, there was evidence independent of that to record a finding that the defendant execut