JUDGMENT

This second appeal is taken up for final disposal at the admission stage itself.

2.The second appeal has filed challenging the judgment and decree dated 19.02.2020 made in A.S.No.80 of 2016 on the file of the Subordinate Judge, Kallakurichi confirming the judgment and decree dated 13.02.2012 made in O.S.No.273 of 2006 on the file of the II Additional District Munsif, Kallakurichi.

2.The appellant has filed this second appeal raising the following substantial questions of law:

“i)When there are 2 documents executed by the same parties in relation to the same transaction on the same date with 2 contrary recitals, whether the averments found in the registered document will prevail over the averments contained in the unregistered document?

ii)When a document has not been exhibited and marked during the trial, can reliance be placed on the said document for delivering a judgment? Will it not amount to patent illegality i.e., considering irrelevant material and also violation of Wednesbury rule of reasonablesness?

iii)Can evidence be adduced in relation to facts which has not been pleaded by the parties? Further, can be Court rely upon such evidence for delivering a judgment?

iv)Opinion of a handwriting expert is not a perfect science like that of a fingerprint expert, such being the case, can be Court decide an issue based on an uncorroborated evidence of handwriting expert?

v)Can oral evidence be received in relation to content of a document? And when execution of a registered document is proved by admission, can Court rely upon the oral evidence for reaching a conclusion contrary to that of the recital found in the registered document?”

3.The learned counsel for the appellant/palintiff submitted that the appeal has been filed challenging the concurrent finding of both the Courts below. He further submitted that the appellant entered into a sale agreement with the respondent on 01.03.2004 to purchase the land to the extent of 4095sqft for a sum of Rs.70,000/-. At the time of agreement, the appellant paid a sum of Rs.50,000/- as advance and to pay the balance amount of Rs.20,000/-, time limit was fixed for a period of two years from the date of the sale agreement. The learned counsel by referring the deposition of P.W.1 submitted that the appellant was ready and willing to pay the balance consideration throughout the period and he also sent a legal notice dated

14.02.2006. These aspect was not considered by both the Courts below.

4.The learned counsel further submitted that the only defence of the respondent in the suit was that, it was a financial transaction and he executed the sale agreement only as a seurity for the repaymemt of sum of Rs.50,000/- recevied on 01.03.2004. Since it is a financial transaction, the respondent has also executed a promisory note on the same day of sale agreement in favor of the appellant.

5.Further, the learned counsel for the appellant submitted that the said promisory note was not with the appellant and it is with the respondent. If the promisory note was executed by the appellant, it woud have been in the hands of the appellant. Further, the signature in the promisory note and in the sale agreement was sent to the expert opinion. The expert opinion was forwarded to the Court. The expert was examined as D.W.2. The said expert opinion was not marked as evidence and without the admission of expert opinion, based on the said report, both the Courts below have come to the conclusion that the signature in promisory note and in the sale agreement dated 01.03.2004 is one and the same. Both the Courts below ought not to have come to such conclusion and judgment of both the Courts below suffered with perversity and the same are liable to be set aside.

6.Heard the learned counsel for the appellant and perused the judgment of both the Trial Court as well as the Appellate Court.

7.On perusal of the judgment passed by both the Courts below would show that the courts below have analysed all the exhibits and the de