- 1 - RSA No. 2341 of 2006 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.2341 OF 2006 (DEC/INJ) BETWEEN: 1. 1(a) SMT. LAKKAMMA W/O LINGAPPA SINCE DEAD BY HER LR SRI. H. SHIVANNA AGED ABOUT 40 YEARS R/AT HULIGERE VILLAGE KASABA HOBLI, SIRA TALUK TUMAKURU DISTRICT-572137. 2. SRI. MUDDANNA S/O. BEERANNA AGED ABOUT 58 YEARS BEJJIHALLI VILLAGE HULIKUNTE HOBLI SIRA TALUK-572137 TUMAKURU DISTRICT. …APPELLANTS (BY SRI. C.R.GOPALASWAMY, SENIOR COUNSEL FOR SRI. G. BHARGAV, ADVOCATE FOR APPELLANT NO.1(a); SRI. D.R.RAJASHEKARAPPA, ADVOCATE FOR APPELLANT NO.2) AND: 1. SRI. POOJARI LINGAPPA S/O. POJARI LINGAPPA AGED ABOUT 58 YEARS 2. SRI. B.P.L. MUDDANNA S/O. POOJARI LINGAPPA AGED ABOUT 56 YEARS R Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - RSA No. 2341 of 2006 2(a) SINCE DEAD BY HIS LRS. SMT. RANGAMMA W/O LATE B.P.L.MUDDANNA AGED ABOUT 65 YEARS R/AT BEJJIHALLI VILLAGE HULIKUNTE HOBLI SIRA TALUK TUMAKURU DISTRICT-572101. 2(b) SRI. LAKSHMIPATHI B.M., S/O LATE B.P.L.MUDDANNA AGED ABOUT 40 YEARS R/AT BEJJIHALLI VILLAGE HULIKUNTE HOBLI SIRA TALUK TUMAKURU DISTRICT-572101. 2(c) SMT. MUDDAMMA W/O HANUMANTHA REDDY & D/O LATE B.P.L.MUDDANNA AGED ABOUT 38 YEARS R/AT C.M.GHATTA ROLLA MANDAL (M) MADAKASIRA TALUK ANANTHAPURA DISTRICT (A.P. STATE). 2(d) SRI. NATARAJU S/O LATE B.P.L.MUDDANNA AGED ABOUT 40 YEARS R/AT BEJJIHALLI VILLAGE HULIKUNTE HOBLI SIRA TALUK TUMAKURU DISTRICT-572101. 3. SRI. ERANNA S/O. POOJARI LINGAPPA AGED ABOUT 54 YEARS 4. SRI. RAJANNA P.L., S/O. POOJARI LINGAPPA AGED ABOUT 52 YEARS - 3 - RSA No. 2341 of 2006 RESPONDENT NOS.1, 3 AND 4 ARE R/AT BEJJIHALLY VILLAGE HULIKUNTE HOBLI SIRA TALUK-572137 TUMAKURU DISTRICT. …RESPONDENTS (BY SRI. H.V. HARISH, ADVOCATE FOR R1, R2(a to d), R3 AND R4) THIS RSA IS FILED UNDER SECTION 100 CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.04.2006 PASSED IN R.A.NO.17/2002 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT NO.IV, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.04.2002 PASSED IN O.S.NO.64/1997 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), MADHUGIRI. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.06.2026 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT This second appeal is filed against the judgment and decree dated 19.04.2002 passed in O.S.No.64/1997 by the Civil Judge, (Sr. Dn.), Madhugiri and also against the judgment and decree dated 20.04.2006 passed in R.A.No.17/2002 by the Fast Tract Court-IV, Tumkur. 2. For the sake of convenience, the parties to this appeal hereinafter referred as plaintiffs and defendants as per the ranks assigned to them before the Trial Court. Before the - 4 - RSA No. 2341 of 2006 Trial Court, the present appellants are defendants and respondents are plaintiffs. 3. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of declaration of their title in respect of the suit schedule property and also for permanent injunction is that their father Poojari Lingappa son of Poojari Muddappa had purchased the suit schedule property from one Karegowda under a registered sale deed dated 21.08.1958. It is further averred in the plaint that ever since from the date of purchase, their father was in possession and enjoyment of the suit schedule property and after his death, plaintiffs are in possession and enjoyment of the suit schedule property as its absolute owners. It is also their case that their father had sold the portion of the property during his lifetime in the year 1967 and also in the year 1972. The defendants have no manner of right, title much less possession over the suit schedule property. But, defendant No.1 in collusion with the revenue officials got entered her name in the RTC to an extent of half right in the suit schedule property. In this connection, the plaintiffs have initiated the proceedings before the revenue authorities by challenging the illegal entry made by defendant No.1 in respect of the suit schedule property. The said matter - 5 - RSA No. 2341 of 2006 went to the High Court by filing a writ petition in W.P.No.14348/1994 challenging the order of the Assistant Commissioner in RRT(A) No11/1992-93 wherein the katha and pahani were made out in the names of defendant Nos.1 and 2 and High Court directed the parties to approach the Civil Court and seek their remedy and gave direction to the Civil Court to consider the case of the parties without looking into the entries made in the revenue records in pursuance of the order made in RRT(A) No.11/1992-93. Hence, the plaintiffs filed the suit for the reliefs of declaration and for permanent injunction. 4. It is also the case of the plaintiffs that defendant No.1 is the wife of one Ningappa son of Veeranna and she has nothing to do with the suit schedule property. Earlier, she had filed a suit against the plaintiffs in O.S.No.536/1992 on the file of Munsiff Court, Sira in respect of the entire suit schedule property. In the said suit, defendant No.1 could not obtain a temporary injunction on I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC, as such, ultimately she got that suit dismissed as not pressed. Defendant No.1 even though having no manner of right or title over any portion of the suit schedule property, with an intention to defeat the right of the plaintiffs, has created the sale deed in respect of half portion of the suit - 6 - RSA No. 2341 of 2006 schedule property in favour of defendant No.2. As such, defendant No.2 also could not derive any title over any portion of the suit schedule property under the alleged sale deed executed in his favour by defendant No.1. It is contented that plaintiffs are residing in the house situated in the suit schedule property and they are in physical possession of the entire suit schedule property. But defendants are making unnecessary attempts to interfere with the plaintiffs’ physical possession and enjoyment of the suit schedule property. Hence, filed the suit. 5. The Trial Court, when issued notice against the defendants, defendant Nos.1 and 2 appeared and filed their written statement. Defendant No.1, in her written statement denied that she is the wife of Ningappa S/o Veeranna. On the other hand, she contends that she is the wife of Poojari Lingappa son of Muddappa and she also contends that she is the resident of Bejjihalli where the suit schedule property is situated. It is her contention that person who is shown as the purchaser of the suit schedule property as per the sale deed dated 21.08.1958 is none other than her husband and he was in actual possession and enjoyment of the suit schedule property. After his death, she succeeded to the estate of her deceased husband. It is her contention that revenue authorities - 7 - RSA No. 2341 of 2006 after due enquiry effected the katha and pahani in her name in respect of the suit schedule property. Thereafter, she sold 6 acres 14 guntas of land in favour of defendant No. 2 in the year 1989. Ever since then, defendant No.2 is in possession of the said portion of the property and defendant No.1 continued to be in possession of the remaining portion of the suit schedule property. It is her further contention that the plaintiffs have played fraud on her by taking the original sale deed from her under the guise that they would get her sanctioned the widow pension. But they did not return the original sale deed. It is her further contention that all the particulars furnished to the revenue authorities for sanction of widow pension to her were given by plaintiff Nos.1 and 2. It is a further case that plaintiffs have nothing to do with the suit schedule property and they are the residents of Kamarenahally in Andhra Pradesh. Her case is that plaintiff No.2 was brought to Bejjihally after the death of husband of defendant No.1 so as to perform pooja of Bopparaya temple which was earlier performed by her husband as defendant No.1 had no issues and since about 5 years, plaintiff No.2 is residing in the house situated in the suit schedule property along with her. Hence, she prayed for dismissal of the suit with costs. - 8 - RSA No. 2341 of 2006 6. Defendant No.2 in his written statement has contended that husband of defendant No.1 was the absolute owner of the suit schedule property and after his death, defendant No.1 succeeded to the estate of the suit schedule property as legal heir. He has purchased 6 acres 14 guntas of land from defendant No.1 in the year 1989. Since then, he has been in possession of the said portion of the suit schedule property and remaining portion of the suit schedule property is in possession of defendant No.1. 7. Having considered the pleadings of the parties, the Trial Court framed the following issues: 1. Whether the plaintiffs prove that their father has acquired title to the suit property under the sale deed dated 21.08.1958 and from that date their father and the plaintiffs are in possession of the suit property? 2. Whether the plaintiffs prove that during the lifetime of their father, he has sold a portion of the same as pleaded in paragraph No.-2 of the plaint? 3. Whether the plaintiffs prove that the 2nd defendant has set up the 1st defendant to make a claim over the suit property and to knock of the same? 4. Whether the 1st defendant proves that her husband purchased the suit property under the registered sale deed dated 21.08.1958 and thereafter her husband was in possession and subsequently after - 9 - RSA No. 2341 of 2006 his death, the 1st defendant continued to be in possession of the property? 5. Whether the 1st defendant proves that her husband has sold a portion of the schedule property in favour of third parties? 6. Whether the 1st defendant proves that the plaintiff has played fraud on her as pleaded in paragraph No.-8 of the written statement? 7. Whether the 2nd defendant acquired valid title to 6 acres 14 guntas of land in the suit property through the 1st defendant? 8. To what decree or order? 8. The plaintiffs in order to prove their case examined plaintiff Nos.1 and 2 as PW1 and PW2 and examined three more witnesses as PW3 to PW5 and got marked the documents at Ex.P1 to P57. On the other hand, defendants examined seven witnesses as DW1 to DW7 and got marked the documents at Ex.D1 to D43. The Trial Court having considered both oral and documentary evidence available on record comes to the conclusion that plaintiffs’ father had acquired title to the suit schedule property under sale deed dated 21.08.1958. Since then, the plaintiffs are in possession of the suit schedule property except the portion of the land sold to PW5 and B. Lingappa. The claim made by defendant Nos.1 and 2 was not accepted. The Trial Court answered Issue No.2 in the - 10 - RSA No. 2341 of 2006 affirmative; Issue No.3 as does not survive for consideration and Issue Nos.4 to 7 in the negative. The said judgment and decree of the Trial Court was challenged before the First Appellate Court in R.A.No.17/2002. 9. The First Appellate Court having considered the grounds urged in the appeal memo and also considering both the oral and documentary evidence available on record, formulated the Points for consideration which reads as under: 1. Whether the judgment and decree of the Court below is opposed to law and facts as contended? 2. Whether there are any grounds for this Court to interfere in the impugned judgment and decree? 3. Whether plaintiffs were not entitled for any relief's before the Court below as contended? 4. What order? 10. The First Appellate Court considered all the Points for consideration together and comes to the conclusion that plaintiffs in order to establish their case that their father Poojari Lingappa had purchased the suit schedule property, have produced the original sale deed dated 21.08.1958 as per Ex.P1. In this connection, defendant No.1 in her written statement has contended that the sister of plaintiff No.1 is the wife of her - 11 - RSA No. 2341 of 2006 brother. Her relationship with the plaintiffs was cordial. After the death of her husband, the plaintiffs under the guise of getting the widow pension, took her to the Taluk Office at Sira along with the original said deed and obtained her left thumb impression to some of the documents and retained the sale deed with them and subsequently, they did not return the sale deed to her inspite of repeated requests. An observation is made that if such was the fact, defendant No.1 should have taken immediate action by filing a complaint against them or she should have taken any other legal action against them. 11. The First Appellate Court having reassessed the material in respect of the evidence available on record i.e., PW1 to PW5 as well as DW1 to DW7 and documents which have been referred, answered all the Points for consideration in the negative and accepted the reasoning of the Trial Court and dismissed the appeal. 12. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court. 13. The learned counsel for the appellants/defendants would vehemently contend that Courts below failed to notice that the documents produced by the plaintiffs themselves such - 12 - RSA No. 2341 of 2006 as Ex.P28, P31 and P32 clearly show that the husband of the first defendant died about 18 to 20 years ago and the husband's name is shown as Lingappa and he died about 20 years back. The date of those documents are dated 26.06.1985. Similarly, DW3 to DW7 also stated that husband of the first defendant died about 18 to 20 years ago as on the date of their deposition. But on the other hand, the courts below recorded the finding that as per Ex.P28 to P32, the husband of the first defendant has died about 30 years earlier to 1985. This finding of the courts below is contrary to the evidence. Hence, the same are perverse. Both the courts below have heavily relied on Ex.P28 to P32 to hold against defendant No.1 and to decree the suit in favour of the plaintiffs. 14. The counsel further contend that courts below committed an error in relying on the affidavit of the first defendant Ex.P29 to record a finding that the husband of the first defendant has died somewhere in the year 1955 in as much as other evidence placed on record before the courts below such as, the mahazars drawn on the basis of the statements made by the villagers – Ex.P31 and the evidence of DW3 to DW7 would have categorically stated that husband of the first defendant died about 18 to 20 years ago including - 13 - RSA No. 2341 of 2006 Ex.P28 where the first defendant herself has made a statement that her husband died about 20 years ago in a statement given before the revenue inspector on 26.06.1985 and Ex.P30, where the age of the first defendant is shown as 45 years and therefore, the finding recorded by the courts below about the date of death of the first defendant's husband on the basis of the affidavit which is in English is contrary to the other material on record. 15. The counsel further would vehemently contend that the courts below failed to notice that plaintiffs being near relatives of the first defendant took advantage of her helplessness, that the documents at Ex.P30 was prepared at the instance of the plaintiffs themselves who took her to Sira town under the guise of getting her widow pension and prepared the documents to suit as per their convenience. They themselves gave the details about the father of the husband of the first defendant as Veeranna recorded in Ex.P30 – genealogical tree on which reliance is placed by the courts below. Therefore, there is no justification for the courts below in recording the finding that the father of the first defendant's husband was one Veeranna not Muddanna only on sole basis of Ex.P30 in the absence of any other corroborating material. - 14 - RSA No. 2341 of 2006 16. The counsel would vehemently contend that the courts below are not justified in disbelieving the evidence of DW4 – Kariyanna son of Chikkakote Karegowda who sold the property as per Ex.P1 who categorically stated that his father was the owner of the property and he sold the said property in favour of husband of the first defendant which is corroborated by other materials. The courts have failed to notice that in earlier proceedings, the plaintiffs have represented themselves to be permanent residents of Komarenahalli, Madaksira taluk, Andhra Pradesh. That being the case, they could not have been known to be the residents of Bejjihalli where the property is situated on the basis of the documents such as voter list and other documents which have come into existence after the dispute of the parties started in one form or the other and therefore, findings recorded by the courts below on this aspect of the matter are liable to be set aside. 17. The counsel would vehemently contend that the Trial Court as well as the First Appellate Court have given the finding as against the materials on record particularly, the document Ex.D13 which was the registered sale deed executed by Kariyanna in favour of Lakkamma, wherein it is categorically stated that she is the wife of Poojari Lingappa. The counsel also - 15 - RSA No. 2341 of 2006 vehemently contend that Poojari Lingappa was performing the pooja and subsequent to his death, plaintiff No.2 was brought to do the pooja. The counsel would submit Ex.P1 is the sale deed dated 21.08.1958. Under the said document, total area purchased is 14 acre 01 gunta and half gunta was sold by her husband and another portion was also sold by her husband. The counsel also would submit that defendant No.1 had sold half of the property i.e., 6 acres 7 guntas in favour of the defendant No.2 in the year 1989 and she has retained half portion. The plaintiffs claim that they are the owners of the suit schedule property. The counsel would vehemently contend that no prayer is sought for cancellation of the sale deed of the year 1989 wherein portion of the property was sold to defendant No.2. The counsel also would vehemently contend that the plaintiffs have not produced any document to show that they are the residents of Bejjihalli village. The counsel also would vehemently contend that if they are the children of Poojari Lingappa, when they pursued their education, ought to have produced the school documents to show that they have given the name of the father as Poojari Lingappa. 18. The counsel would vehemently contend that Ex.P17 discloses that they are the residents of Komarenahalli, - 16 - RSA No. 2341 of 2006 Madaksira taluk. In Ex.P18, address is not shown as they are the residents of Bejjihalli. The counsel would submit that in Ex.P28 husband name is mentioned as Ninganna. The counsel also vehemently contend that voter list which have been relied upon by the plaintiffs at Ex.P49 to 51, do not discloses that they are the children of Poojari Lingappa. Apart from that house numbers are different and not in respect of the very same house. If they are residing in the suit schedule house property as contended by the plaintiffs, they would have produced the documents in that regard. The ‘D’ series of documents which have been produced before the court clearly support the case of the defendants. The counsel submits that the documents are created after the sale deed executed by defendant No.1 in favour of defendant No.2. The counsel would submit that no educational certificates of any of the plaintiffs are produced before the court to show that they are the residents of the Bejjihalli and the children of Poojari Lingappa. The counsel would submit that plaintiffs nothing to do with the suit schedule property. The counsel would submit that the very Ex.P1 is admitted document under which the property was purchased by the Poojari Lingappa. The claim made by the plaintiffs that there was a gift deed in terms of Ex.P2 and the - 17 - RSA No. 2341 of 2006 same was referred to the handwriting expert. The opinion is very clear that the left thumb impression found in Ex.P1 and Ex.P2 are different and not belongs to same person. The counsel also submits that the expert opinion goes in favour of defendant No.1 and not in favour of the plaintiffs. PW1 evidence is very clear that they are the residents of Madaksira taluk. The plaintiffs have not established the relationship and admitted that they are the residents of Komarenahalli. The revenue records were not challenged till 1989. The very approach of the Trial Court and First Appellate Court is erroneous and the finding given by both the courts is perverse. Hence, this Court has to frame an appropriate substantial question of law with regard to the relationship between the parties as concerned. 19. Per contra, the counsel appearing for the respondents would vehemently contend that plaintiffs are the children of Poojari Lingappa s/o Poojari Muddappa. No dispute with regard to the property is concerned that the same was purchased by Poojari Lingappa. In the suit schedule property there is a mud roof house. Also there was no dispute with regard to the purchase of the property in the year 1958 by the Poojari Lingappa wherein also schedule clearly discloses that - 18 - RSA No. 2341 of 2006 there was a mud roof house. The counsel would submit that half gunta was sold out of the property which was purchased in the year 1958 in favour of one B. Lingappa in the year 1966- 67. So also, other portion was sold in favour of B. L. Doddalingaiah who has been examined as PW5 in year 1972. These two sale deeds are executed by the Poojari Lingappa. The counsel would submit that attestors have been examined as PW2 and grandson of another attestor was also examined as PW3. The counsel would vehemently contend that Ex.P40 and P41 are original sale deeds and the same can be compared with Ex.P1 and signatures of grandfather of PW1 is also found in the document of Ex.P1. The signature of PW2 also compared. The counsel submits that Ex.P1 original sale deed is produced by the plaintiffs. Plaintiff No.2 also reside in the scheduled property. The Ex.P23 notice was given and Ex.P27 is the acknowledgment. The counsel would contend that Ex.P28 to 32 takes away the case of defendant No.1 as those documents are given while obtaining the widow pension. The counsel would submit that the fraud as alleged that documents of Ex.P28 to 30 came into existence at the instance of the plaintiffs, the same was not proved and also there was no full details as contemplated under Order 6 Rule 4 of CPC. The husband name - 19 - RSA No. 2341 of 2006 of defendant No.1 is Ningappa son of Veeranna. Ex.P33 is the plaint of the year 1992 wherein defendant No.1 claimed the relief for entire land. But she claims that she had sold the portion of property in the year 1989 itself. Though an attempt was made to get temporary injunction in the suit filed in the year 1992, the same was rejected and even MA also dismissed. Documents at Ex.P35 and P36 are also marked to show that suit was withdrawn. 20. Learned counsel appearing for the respondents would vehemently contend that where the marriage was held and the participants of the marriage was not stated. When the husband died, who performed the customary rituals and also whether they lived together is not stated. The counsel also would contend that with fraud played in the Court is also not proved and there must be a specific averment in the pleadings in compliance of Order 6 Rule 4 of CPC. Though, the document Ex.D13 is marked and the same is not proved by examining any of the witnesses. The counsel also would submit that Poojari Lingappa did not sign the said document and the same is not proved. Though the documents are marked, the same is not proved and attesters of the said documents are also not examined and oral evidence cannot be against the - 20 - RSA No. 2341 of 2006 documentary evidence and the fact that she is the wife is also not proved. The documents which have been produced before the Court clearly disclose that original documents are produced by the plaintiffs and though, it is contented that the documents are lost and nothing is stated as to where it was lost. The counsel would further submit that suit is not barred by limitation and only when they came to know about the same, it was challenged and particularly, documents Exs.P28 to P30 goes against the appellant. The counsel would contend that the commissioner report is also not helpful and effective cross- examination was made and the same is not proved and even though the report is against the respondents, the same cannot be relied upon. Hence, it does not require any interference and concurrent finding cannot be interfered in a second appeal, unless there is an error of perversity on the part of both the Courts in considering the factual aspects and no substantial question of law arises for consideration. 21. In reply to this argument, the learned counsel for the appellants would vehemently contend that Ex.D.13, which came into existence is very clear that address is mentioned as Bejjihalli Poojari Lingappa and not Kommerahalli Lingappa. The learned counsel would submit that though they claim that they - 21 - RSA No. 2341 of 2006 are the wife and children and they rely upon the voter’s list, there is age difference between the persons and also the house list number. The learned counsel also submits that when the suit was filed, not sought for the relief of declaration in respect of the sale deed executed by the appellant in the year 1989 and in the absence of any relief of declaration in respect of the sale deed executed i.e., portion of the property, the question of granting any relief does not arise. The learned counsel also would submit that substantial question require to be framed regarding maintainability of the suit. The learned counsel submits that no school documents are produced to show that they are the residents of Bejjihalli and also pursued their education mentioning the name of Poojari Lingappa of Bejjihalli. The learned counsel also would submit that in the plaint they have not stated when they came to know about the sale deed of the year 1989. The learned counsel would submit that Ex.P.28 to 32 series are created at the instance of the plaintiffs to get the old age pension and she was taken to the office. The counsel would submit that in Ex.P.51, name is mentioned as Lingappa and not Poojari Lingappa. The counsel would contend that RTC stands in the name of Lingappa only and till 1989 they have not produced any documents. The counsel would submit - 22 - RSA No. 2341 of 2006 that Ex.P.20 is of the year 1983 and not stated as Poojari Lingappa and Ex.P.51 is of the year 1988 wherein also it is mentioned as Lingappa and not as Poojari Lingappa and both documents are against the plaintiffs. In Ex.P.49 also not mentioned as Poojari Lingappa and also house list are also different. 22. Having considered the oral submissions of the learned counsel for the appellants and the learned counsel for the respondents, this Court would like to extract the substantial questions of law framed at the time of admission and the real controversy between the parties to be considered considering the substantial question of law framed by this Court on 29.11.2012. The following substantial questions of law are framed by this Court for the consideration of this appeal on 29.11.2012: 1. Whether the finding of the courts below that Poojari Lingappa son of Poojari Muddanna referred in Ex.P.1 the sale deed dated 21.08.1958 was the father of the plaintiffs and not the husband of first defendant is based on proper appreciation of oral and documentary evidence on record. - 23 - RSA No. 2341 of 2006 2. And to consider any other substantial question of law which may arise for consideration while hearing the appeal?” 23. The second substantial question of law is very clear that to consider any other substantial question of law which may arise for consideration while hearing the appeal. On perusal of the order sheet, it is very clear that this Court has heard the matter in detail. When the first defendant is claiming her husband is Poojari Lingappa and the plaintiffs are also claiming that they are the children of Poojari Lingappa, this Court found that there is a dispute with regard to the identity of Poojari Lingappa, since both claims to be the legal heirs of the said Poojari Lingappa. This Court vide order dated 09.11.2022 observed that the appellants claims that the person who has purchased the property, namely, Poojari Lingappa under Ex.P.1 is different from the person who executed Ex.P.2 gift deed. This contention is based on the premise that there are two persons, one in Andhra Pradesh and one in Karnataka having the same name Poojari Lingappa. The learned counsel for the respondents would submit that Poojari Lingappa, who purchased the property under Ex.P.1 is the same person who has executed Ex.P.2. Hence, this Court finds that handwriting - 24 - RSA No. 2341 of 2006 expert’s opinion on the signatures of Poojari Lingappa, appearing in Ex.P.1 sale deed dated 21.08.1958 and signatures of Poojari Lingappa in Ex.P.2 gift deed dated 20.08.1964 have to be compared. The report of the handwriting experts on this matter is of some consequence to decide the matter whether the two persons by the same name Poojari Lingappa were parties to the registered deeds referred above. Hence, this Court directed the Registry to send the records containing Ex.P.1(a) and Ex.P.2(a) to (d) to the Truth Lab. Handwriting expert shall give opinion as to whether Ex.P.1(a) and Ex.P.2(a) to (d) are the signatures of the same person. The Registry shall keep a certified copy of Exs.P.1 and 2 and send Exs.P.1 and 2 records to the Truth Lab, No.28/2, Siddapura, 2nd Floor, Main Road, Thubarahalli, Whitefield, Bangalore, Karnataka – 560 066. This Court also directed both the appellants and the respondents to deposit Rs.2,000/- each towards the tentative fees of handwriting experts. Additional costs of the opinion, if any shall be borne by the appellants and the respondents. 24. In view of the same, this Court received the report of the handwriting expert and the same was opened in the open Court and the same was taken on record. When the matter was posted for arguments, the parties sought for the - 25 - RSA No. 2341 of 2006 copy of the same and hence, this Court directed the Registry to issue the copy. The learned counsel for appellant No.1(a) and the learned counsel for appellant No.2, both submit that they have no objection for handwriting expert’s report. However, the learned counsel for the respondents submits that he will file objections to the handwriting expert’s report. Hence, an opportunity was given to file such objections. I.A.No.1/2023 was filed by the respondents under Order 26 Rule 10A of CPC praying this Court to send Exs.P.1 and 2 containing thumb impression of Poojari Lingappa found in the said documents to Mr.Phanindra B.N., Forensic Handwriting Expert, Manipal Center, to ascertain whether both the thumb impressions are one and the same or not. Hence, the learned counsel for the appellants sought time to file objections to I.A.No.1/2023 and the same was also filed. This Court having considered the I.A. and when an application was filed for securing the report from the fingerprint expert, this Court held that the application virtually amounts to production of additional documents. The said application has to be considered along with the merits of the appeal and heard the arguments of the respective counsel and reserved the matter. Having reserved the matter, considered I.A.No.1/2023 and comes to the conclusion that - 26 - RSA No. 2341 of 2006 evidence on record (excluding the handwriting opinion) are not good enough to arrive at a definite conclusion on the disputed questions, though they may provide some insights based on preponderance of probability. Hence, the Court comes to the conclusion that expert’s opinion on the disputed thumb impression of late Poojari Lingappa in Ex.P.2 gift deed will be of assistance to appreciate the remaining evidence on record. Hence, allowed I.A.No.1/2023 and directed the Registry to send the original registered sale deed dated 21.08.1958 (Ex.P.1) and the original gift deed dated 20.08.1964 (Ex.P.2) for the examination by the fingerprint expert. The fingerprint expert shall give opinion as to whether the thumb impression marked as in Ex.P.1(a) in the registered sale deed dated 21.08.1958 and the thumb impression marked as in Ex.P.2(b) are the thumb impressions of the same person are not. It was also made clear that this order is passed keeping all contentions of both parties open in respect of the report dated 19.12.2022 submitted by the handwriting expert as this Court has not given any opinion on the said report. The fingerprint expert shall submit the report to the Court within three weeks from the date of receipt of the copy of the order. - 27 - RSA No. 2341 of 2006 25. With the consent of both parties, common name is suggested i.e., Sri R. Narayanappa, retired Deputy Superintendent of Police and Director of Mudra Associates and hence, he was appointed to get the report and second opinion is also obtained. The Registrar (Judicial) was directed to open the sealed cover and furnish the certified copy of the report to the respective advocates. Having provided the copies, the learned counsel for the respondents sought time to file objections to the Commissioner’s report and accordingly, filed the objections to the Commissioner’s report. This Court vide order dated 22.08.2025, having considered the objections filed by the respondents in respect of the fingerprint expert’s opinion, as he took the contention that a false report was given with an intention to help the appellants, comes to the conclusion that since there are two reports filed by the fingerprint experts, one dated 19.12.2022 and another dated 06.07.2024 and since learned counsel for the respondents seeks permission to cross-examine the Court Commissioner on the reports submitted, held that it would be necessary to send these two reports to the First Appellate Court by way of remand to facilitate the respondents and the appellants, if required to cross-examine the fingerprint expert and an order was passed - 28 - RSA No. 2341 of 2006 directing the Appellate Court to record the evidence of fingerprint expert. Accordingly, one of the fingerprint expert Sri Narayanappa was examined as C.W.1 and his report is marked as Ex.C.1. 26. Having recorded the evidence, this Court has received the originals of Exs.P.1 and 2, the Commissioner’s report which was marked and also the compliance report by the VI Additional District and Sessions Judge, Tumakuru and now the evidence is also before the Court. It is also the letter of the P.O. of the District Court that with regard to another report is concerned, the person who gave the report is no more and if required they are going to depute an Additional Director, since Shankarappa Murad is no more. The order sheet of the Trial Court is very clear that none of the parties shown any interest to secure the Assistant Director and not examined the Assistant Director, Documents Division, Truth Lab and hence, received the evidence with documents. Having considered the evidence available before the Court with regard to the handwriting expert, this Court held that handwriting expert report in respect of Exs.P1 and 2 are necessary and the same will assist the Court for final conclusion and this Court heard the arguments of both the counsel on the material available before the Court and - 29 - RSA No. 2341 of 2006 so also in view of the expert opinion and also the cross- examination of the expert, this Court would like to frame the additional substantial questions of law as follows: “1. Whether the Commissioner’s report is acceptable to consider the issue involved between the parties? 2. Whether the executant of documents Exs.P.1 and 2 are one and the same and whether the same is reliable for consideration of the issue involved between the parties, since the appellants claim that Poojari Lingappa, who is the author of document Ex.P.1 is different from the author of document Ex.P.2 Lingappa claimed by the respondents? 27. Having considered the substantial questions of law framed by this Court at the first instance and also the additional substantial questions of law framed by this Court, both are in respect of an identity of a person who has executed Exs.P.1 and 2 and whether the person claimed by the plaintiffs in the original suit and also the contention of the defendants that both are different has to be considered by this Court. Having considered both the substantial questions of law, the additional substantial questions of law framed by this Court - 30 - RSA No. 2341 of 2006 clinches the issue involved between the parties. The first substantial question of law framed by this Court is whether the finding of the Courts below that Poojari Lingappa son of Poojari Muddanna referred in Ex.P.1 sale deed dated 21.08.1958 was the father of the plaintiffs and not the husband of defendant No.1 is based on proper appreciation of oral and documentary evidence on record. The issue is with regard to the identity of a person and hence, this Court would like to consider the additional substantial question of law, since the issue was raised during the course of argument that he is different from the claim made by the plaintiffs and hence, this Court suo motu sent the documents for handwriting expert i.e., Exs.P.1 and 2. This Court also while referring the matter to the handwriting expert, comes to the conclusion vide order dated 09.11.2022 that handwriting expert's opinion on the signatures of Poojari Lingappa, appearing in Ex.P.1 sale dated 21.08.1958 and signatures of Poojari Lingappa in Ex.P.2 gift deed dated 20.08.1964 have to be compared. When the first report was given by Sri Shankarappa Murad, an application was filed once again by the respondents to send the documents to the handwriting expert and hence, the documents were sent to the other expert one Sri R. Narayanappa, Director of Mudra - 31 - RSA No. 2341 of 2006 Associates. He was examined before the Court on 14.10.2025 as C.W.1 and got marked the questioned documents (fingerprint). The examination report dated 06.07.2024 is marked as Ex.C.1. It is also very clear that the other handwriting expert who gave the report is no more and hence, he was not examined. Though the Truth Lab has stated that the Assistant Director can give evidence, but both the appellants and the respondents have not shown any interest to examine the Assistant Director. 28. Now the material available before the Court is in respect of Ex.C.1 Commissioner report and the said report is given by Sri R.Narayanappa. The Court itself examined Narayanappa in view of the direction given by this Court and in his chief evidence, Narayanappa who is the retired DYSP and fingerprint expert says that, from 1980 till his retirement he worked as fingerprint expert in Karnataka State Forensic Science Laboratory. After his retirement, he started laboratory under the name Mudra Associates, Bangalore and has been working as a fingerprint expert in several cases since 2008. He took one year training at Police Academy, Mysore in respect of fingerprint skill and knowledge and passed out in the exam. Later, he trained as a fingerprint expert for one year at National - 32 - RSA No. 2341 of 2006 Fingerprint Museum, Kolkata and passed it. That on 15.06.2024, he received a sealed cover in respect of R.S.A.No.2341/2006 i.e., Exs.P.1 and 2 and he was asked to give report in respect of the thumb impressions found in Exs.P.1 and 2. He gave the number S1 in respect of Ex.P.1 and in respect of Ex.P.2, Q1 and both of them have been enlarged and photos were taken and given the opinion that enlarged photograph of the disputed thumb impression of Poojari Lingappa found on the registered gift deed marked Ex.P.2, the thumb impression marked Q1 is remained non-identical when compared with the specimen/admitted thumb impressions marked S1 as it differs in its ridge characteristics. Enlarged photographs of the specimen/admitted thumb impression of Poojari Linagppa found on the registered absolute sale deed marked Ex.P.1, the thumb impression marked S1 is remained non-identical when compared with the disputed thumb impression marked Q1 as it differs in its ridge characteristics and he gave the report in terms of Ex.C.1. It is his evidence that on thorough and careful scientific examination and comparison of the disputed finger impression marked Q1 found against the name of Poojari Lingappa on the original document marked at Ex.P.2 is remained non-identical with the specimen - 33 - RSA No. 2341 of 2006 finger impression marked S1 found against the name of Poojari Lingappa on the original document marked Ex.P.1. Hence, it is opined that these two finger impressions are not obtained from the same finger of the same person. He also identifies Exs.P.1 and 2 before the Court. This witness was subjected to cross- examination. 29. In the cross-examination, it is elicited that he passed as a fingerprint expert in the year 1982 and he examined both the documents as per the directions of the Court. He admits that as per the records of the Court, nowhere it is mentioned that which one is the admitted document and which one is the questioned document. The witness volunteers that there is no need for that because there are only two documents and that he only needs to see whether they match or not. According to the law of the forensic science laboratory, the disputed document should be examined first. Accordingly, he has examined the disputed document first. Considering the age of the document, he has taken admitted document and disputed document. He admits that he had used ridge counter instrument while conducting the examination and the same is not mentioned in his report Ex.C.1. He cannot tell to what extent the comparison microscope magnification was used. He - 34 - RSA No. 2341 of 2006 admits that comparison microscope bullet could be used for examination and also comparison microscope has high magnification. He admits that in Ex.C.1, serial Nos.1 to 4, examination high magnification instrument should not be used and he admits the same. But volunteers that if it is not clear, it is illuminated by giving more light. He admits that comparison microscope is a tool based on magnification and is not based on giving more light and illuminating it. He admits that in his report he has not produced the negatives of both the photographs. He admits that in the photographs, scaling is a primary evaluation. He admits that Ex.C.1 photographs were taken using the scaling, but not mentioned the values. He admits that in Ex.C.1, he did not mention which camera lens and magnification was used. He admits that when he conducted the examination, he did not find smudge. When the same was shown to the witness, he says that none of them are smudged, but only says that in one, ink is more. He defines smudge means over ink. It is suggested that in Ex.P.1, S1 more ink is there and the same is denied. A suggestion was made that in Ex.P.1, S1 photography, the lines in the middle of the photo have been erased and the same was denied. He admits that he has used the juxta position test. But when asked why it is used, - 35 - RSA No. 2341 of 2006 the witness says that it is to see if the lines are aligned with each other or not. He admits that juxta position is used only to see the difference in the fingerprints of both the fingers. He also admits that in his report he has mentioned converging ulnar loop type and given the report and also in S1, he has stated that converging ulnar loop type is found. Loop means that a line on a finger starts from the same side and ends in the same direction. The descending ridges are re-curved back at the center core and the same is mentioned in Ex.C.1. Re- curve is the line turning in the centre. If the line turns in the centre, it is not correct to call it a whorl pattern. He admits that he knows ridge counting method, but he did not use the said method as the same was not necessary. 30. He admits that core and delta are clearly visible in both the fingerprints. It is not correct that if the test was conducted based on core and delta, more features would have been visible. He admits that ridge analysis process was adopted. It is not correct that ridge counting method should be adopted depending on the level of which core and delta are visible. He admits that in Q1 photograph of Ex.C.1, the word horizontal and discontinue has been adopted at the central point. It is not correct to say that there is no possibility of a - 36 - RSA No. 2341 of 2006 horizontal line at the central point in Q1 photograph of Ex.C.1. It is suggested that in Ex.C.1, Q1 photography ridges are continued and the same was denied. He admits that in Ex.C.1, S1 photography in middle all ridges are continued. To the question, in Ex.C.1 Q1 photography, which is right bottom zone, the witnesses says there is a blank space in the middle below the crease mark and to its left and right side. It is suggested that as per the BPRD rule, only the top (bulb) of a fingerprint crease should be tested and the bottom should not be tested and the same was denied. He admits that direction should be examined while examining the fingerprint, but in this case it is not necessary, so he did not do it. He admits that there is a distance of 8 lines between ridge and delta and not 10 lines and he has not entered this in the report. It is suggested that there is a bifurcation in the 5th line in the north east direction of the center point of S1 and Q1 photograph of Ex.C.1 and the witness says there is a bifurcation in S1 and not Q1. He admits that when he tested, he did not do the super imposition of one fingerprint on top of the other. It is not correct to say that the fingerprint of a person does not change over time. He admits that he has not given the details about serial No.4 of S1 of Ex.C.1 on page No.5. It is not correct to - 37 - RSA No. 2341 of 2006 say that his report is incomplete. It is suggested that he has given the report on behalf of the appellants and the same is denied. He admits that in the laboratory, to find a fingerprint, scaling, value and zooming details help in analysis and report. He admits that when examining the fingerprint of S1 and Q1 of Ex.C.1, ridges were clear. He admits that there is no rule that a loop should start and end in the same direction. It depends on the direction in which the fingerprint is placed. He admits that there is no need to do super imposition. 31. Having considered the respective submissions and also the substantive question of law framed by this Court at the earliest point of time i.e., at the time of admission that whether the finding of the Courts below that Poojari Lingappa S/o. Poojari Muddanna referred in Exhibit P1 as sale deed dated 21.08.1958 was the father of the plaintiffs and not the husband of the first defendant is based on proper appreciation of oral and documentary evidence on record and also subsequent framing of substantive question of law by this Court. Further, having perused the document at Exs.P1 and P2 and heard the respective counsel after receiving the commissioner's report that whether the commissioner's report is acceptable to consider the issue involved between the parties and also the - 38 - RSA No. 2341 of 2006 other additional substantive question of law is that whether the executant of document Exs.P1 and P2 are one and the same and whether the same is reliable for consideration of the issue involved between the parties since the appellants claims that the said Poojari Lingappa, who is the author of document at Ex.P1 is different from author of document at Ex.P2 i.e., Lingappa as claimed by respondents also be considered since the crux of the issue involved between the parties claiming that that Poojari Lingappa is the husband of the appellant and the plaintiffs who are the respondents herein, claims that they are the children of Poojari Lingappa. This Court having considered these substantive questions of law, when the matter was heard before this Court, it felt that the documents Exs.P1 and P2 are to be referred to the expert and suo moto referred the same to the expert and having received the first report from the expert, disputed the same by the respondents and hence, again the matter was sent to the handwriting expert. Now, this Court also considered the evidence of handwriting expert who has been examined as C.W.1 before the Court and first report expert was not available since he is no more and hence, he was not cross-examined. - 39 - RSA No. 2341 of 2006 32. Now the core issue before the Court is with regard to both of them claims that they are the legal heirs of Poojari Lingappa. There is no dispute that the property was originally belongs to Poojari Lingappa, who had purchased the same land in the year 1958. It is also not in dispute that the appellant herein claims that she is the wife of Pujari Lingappa, who is the son of Muddanna. It is the contention of the respondents/ plaintiffs that the husband of the appellant who is the son of Veeranna and not the son of Muddanna and this Court has to take note of the factual aspects of the case with regard to purchase of property by Poojari Lingappa in the year 1958 as per document at Ex.P1 and in turn the said Poojari Lingappa also sold portion of the property to two persons by two sale deeds i.e., sale deed of the year 1967 and also the sale deed of the year 1972 and those sale deeds are also marked as exhibits. 33. Further, this Court also keeping in view the expert opinion and also the evidence of expert, re-analyze the evidence available on record since the issue involved between the parties is with regard to the finding of both the Courts. - 40 - RSA No. 2341 of 2006 34. The plaintiff who has examined before the trial Court as P.W.1 reiterates the plaint averments in his evidence and also claims that Poojari Lingappa had purchased the property from Karegowda under Ex.P1. He identifies the signature of Poojari Lingappa as his father and his signature as Ex. P1(a) and also claims that his father i.e. Poojari Lingappa had executed a gift deed and also by his uncle which got marked as Ex.P2. Further, he also identifies the signature of Poojari Lingappa as Exs.P2(a) to (d) and claims that mutation was changed in the name of Poojari Lingappa and also in record of rights and index. Those documents are also marked. But he claims that his father was called as Poojari Lingappa as well as Lingappa. He also claims that his grandfather's name is Poojari Muddappa. But he claims that in the RTC, his name is mentioned as Lingappa and it belongs to his father. However, he claims that the village accountant mentioned the names of Lakkamma and also Muddamma in the RTC. It is also his evidence that revenue dispute was arose between the parties and matter went before the Assistant Commissioner and the Assistant Commissioner, reversed the order passed by the Tahasildar in favour of appellant. Thereafter, the matter was taken to the High Court and it is also not in dispute that the - 41 - RSA No. 2341 of 2006 parties are directed to approach the Civil Court and get it resolve the issue. 35. P.W.1 was subjected to cross-examination. When the suggestion was made that the name of the husband of first defendant is Poojari Lingappa who is also called as Bejjihalli Poojari Lingappa, the same was denied. But he claims that her husband was called as Ningappa. In the cross-examination, when the suggestion was made that husband of first defendant was passed away 25 years ago and the same was denied by them and further claims that he passed away more than 60 years ago. It is suggested that first defendant sold the property to the extent of 6 acres and 7 guntas in the year 1989 in favour of defendant No.2 and the same was denied, but admits that revenue documents stands in the name of defendant No.1 in respect of remaining land. Hence, it is clear that having sold the property by the first defendant in favour of second defendant, remaining portions of the property stands in the name of first defendant in the revenue records. 36. Further, P.W.1 also categorically admits that first defendant is not having any issues. When the suggestion was made that his father was performing pooja to Beeradevaru at - 42 - RSA No. 2341 of 2006 Komarenahalli, he claims that he was performing pooja both at Komarenahalli and also at Bejjihalli. He admits that after the death of his father, he was performing pooja at Komarenahalli and also admits that his father is having a brother by name Beeranna and the said Beeranna is having children. He further admits that his grandfather Muddappa was not having any brothers. He categorically admits that his uncle Beeranna is having 3 children and all of them are residing at Komarenahalli and not at Bejjihalli. He also admitted that his grandfather is having the property to the extent of 10 to 12 acres but fails to tell the survey number. This admission takes away the case of the plaintiff. He claims that his father had brother by name Beeranna and all of them were residing there. He categorically admits that his father is having a daughter by name Muthamma and she is his sister. She was married to Doddieranna who is resident of Huligere village and fails to tell the parents name of said Doddieranna. He further admits that the said Doddieranna is having two brothers namely, Thimmanna and Shankarappa and a sister by name Lakkamma i.e., first defendant and other sister passed away and he did not know the name of another sister. - 43 - RSA No. 2341 of 2006 37. He also admits that first defendant is getting widow pension from the year 1985 and the said aspect was known to him about 4 to 5 years ago. But suggestion was made that he only taken the first defendant to the office to get the widow pension and the said suggestion was denied. P.W.1 also admits that first defendant had filed an appeal before the Assistant Commissioner. Though he admits that in the year 1958, either themselves or their father having any property at Hulikunte Hobli, Bijjehalli, he has produced the same. But no such document is placed before the court. It is particularly suggested that Poojari Lingappa had sold the property to one B Lingappa and Doddalingappa, the same was denied i.e., in the year 1966 and 1972. But he admits that the said B Linappa and Doddalingappa are residing in the said house in respect of the property which was purchased by them. He also admits that when the records were changed to his name and the same was challenged by Lakkamma before Assistant Commissioner and order has been passed in favour of Lakkamma and the said order was against him. The same is categorically admitted and having challenged the same, P.W.1 approached the High Court. But he claims that as per the RTC, the defendants are not cultivating the property and admits that the property stands in - 44 - RSA No. 2341 of 2006 their name. But he claims that that is not correct. He also admits that even prior to filing of the matter before the Assistant Commissioner, RTC stands in the name of first defendant. He also admits that his brother-in-law married the sister of said Doddalingappa, who had purchased the property. He also admits that when the case was filed by the first defendant, second defendant was not made as party. He categorically admits that even from his ancestors’ period, his father was in Bejjehalli. But when his father passed away, at that time, they were at Komarenahalli. The other document and his evidence is not material for the reason that he only identifies the signature of Poojari Lingappa. But he categorically admits that father of the plaintiff was not having any brothers and this admission takes away the case of the plaintiff. Since P.W.2 admits that their father is having a brother by name Beerappa. This witness also admits that plaintiff’s father was performing pooja at Komarenahalli Beeradevaru. He also admits that plaintiff’s father passed away 20 years ago. When the suggestion was made that all the plaintiffs are still residing at Komarenahalli, the same has been denied. However, he admits that the first plaintiff is performing pooja at - 45 - RSA No. 2341 of 2006 Komarenahalli Beeradevaru. He categorically admits that Komarenahalli Beeradevaru is his home deity. 38. Further, the other witness is examined as P.W.3- K Bopparai, who is the grandson of attesting witness, i.e. his grandfather who is no more. He also categorically admits in the cross-examination and the documents at Exs.P40 and 41 are also marked through this witness and this witness was subjected to cross-examination, wherein he admits that first plaintiff is performing pooja at Komarenahalli and he cannot say that whether Poojari Lingappa was having brothers. The evidence of P.W.3 is contrary to the evidence of PWs.1 and 2. He also admits that primarily Beeradevaru is his home deity. A suggestion was made that Karegowda, S/o. Chikkegowda of Chikkanakote village had executed a sale deed in favour of husband of first defendant i.e. Poojari Lingappa. The said witness did not deny the same but only says that he had seen the father of plaintiff. Having considered the evidence, it is very clear that the Karegowda had executed the sale deed in favour of Poojari Lingappa. But an attempt is made by P.W.3, who is the father of the plaintiffs. - 46 - RSA No. 2341 of 2006 39. P.W.4- Bopparayappa deposes before the Court with regard to performing of pooja. After the death of Poojari Lingappa, plaintiff Nos.1 and 2 are peforming pooja and also admits that Poojari Lingappa died in the year 1985. But P.W.1 claims that the husband of first defendant passed away 60 years ago and this witness in his cross-examination admits that first plaintiff is performing pooja at Komarenahalli and also at Bijjehalli. He also admits that Komarenahalli Beeradevaru is also his home deity. 40. P.W.5 – Doddalingaiah is the purchaser who had purchased the said property in the year 1972. In his chief- examination itself, he says that he has seen the disputed property and the total extent of property is 12 acres. Further, he states that he is having a house, also the plaintiff is having a house and even defendant No.2 is also having a house. Hence, it is clear that defendant No.2 who had purchased the property is having a house and he is in possession of the property. He categorically says that he had purchased the property from father of the plaintiff i.e., Poojari Lingappa in the year 1972. He also admits that his uncle B.Lingappa also had purchased the property prior to his purchase and categorically admits that plaintiff Nos.3 and 4 are still residing at Komarenahalli and first - 47 - RSA No. 2341 of 2006 plaintiff also frequently visited Komarenahalli. When the suggestion was made that first defendant's husband was the resident of Bijjehalli and the witness denied the same. Further, he categorically admits that plaintiff's father B Lingappa is the resident of Komarenahalli and he came to know about the same. He categorically admits that the earlier purchaser B Lingappa, who had purchased half gunta of land and he is residing there by constructing a house and now his wife Puttarangamma is residing in the said house. When the suggestion was made that the first defendant is not having children and he admits that he came to know about the same. Further, when suggestion was made that husband of Lakkamma is resident of Bijjehalli, he admits that people says about the same. 41. He also categorically admits that the said Lakkamma is not having children and her parental home is at Huligere and he came to know about the same. When suggestion was made that her husband was performing pooja at Bijjehalli, the witness says that he has not seen him. When the suggestion was made that husband of Lakkamma is having a sister by name Muddamma and witness says he is not aware of the same. However, he admits that the said Muddamma was - 48 - RSA No. 2341 of 2006 married to one Huligere Badierappa and when the suggestion was made, Muddamma was married to one Huligere Badierappa, he says that he may be known. Further, P.W.5 admits that even now, first plaintiff is performing pooja at Komerenahalli Beeradevaru. 42. Now, this Court has to consider the evidence of DW1 who is defendant No.1. DW1 reiterates the contents of written statement stating that her husband's name is Poojari Lingappa and the said Poojari Lingappa had purchased a property in the year 1956 itself in terms of Ex.D13, wherein her name is mentioned as she is the wife of Poojari Lingappa and also she speaks about portion of the property was sold in favour of defendant No.2 and she is the resident of Huligere which is her parental home and also residing at Bijjehalli. After her marriage, she came to Bijjehalli and soon after the death of her husband, she is residing at Huligere as well as at Bijjehalli. - 49 - RSA No. 2341 of 2006 43. DW1 further states that after the death of her husband, B.P.L. Muddappa was brought to do pooja at Bopparayaswamy temple by herself and villagers and other plaintiffs are residing at Komeranahalli. When B.P.L. Muddappa came to do pooja, he was staying in the house of DW1. It is also her evidence that her father-in-law’s name is Poojari Muddappa and he was doing pooja at Bijjehalli Bopparayaswamy temple and he passed away about 40 to 50 years ago. After the death of her father-in-law, her husband continues the same. It is also her evidence that her husband was having elder sister by name Muddamma and she was given in marriage to one Huligere Badeerappa and the said Muddamma and Badeerappa are the parents of DW1. The B.P.L. Muddappa came to do pooja from Komeranahalli. It is also her evidence that first plaintiff’s sister was given in marriage with her brother Doddeerappa. 44. It is also evidence of DW1 that in order to get the widow pension, the information was given by the plaintiffs and the contents of statement and also the affidavit are not correct. It is her evidence that the suit schedule property belongs to her husband and the same was purchased from Chikkanakote Karegowda. In the said land, half gunta each was sold to B. - 50 - RSA No. 2341 of 2006 Lingappa and Dodda Lingappa to construct a house and she is in cultivation of the said property after the death of her husband. When property was transferred to her name, plaintiffs’ parents have no objection. She sold 6 acres 7 guntas of land to defendant No.2 and he is cultivating the same. Thereafter, revenue proceedings were taken place. It is also her case that her husband Poojari Lingappa had purchased the property in her name as per Ex.D13. Huligere is her parents' village and her husband belongs to Bijjehalli and she used to residing in both Huligere and Bijjehalli. 45. This witness was subjected to cross-examination. In the cross-examination, she deposed that she is having acquaintance with the father of the plaintiffs as his daughter was given in marriage with her brother. Her husband - Poojari Lingappa’s father name is Poojari Muddappa. DW1 admits that said Muddappa had children by name Poojari Lingappa, Beerappa and Muddamma. It is suggested that the said Muddamma was given to Mallappa and the said suggestion was denied. It is admitted that her husband was not having any properties at Komeranahalli but he was doing pooja at Beeralingeshwara temple at Komeranahalli as well as at Bopparayaswamy Temple at Bijjehalli. It is suggested that - 51 - RSA No. 2341 of 2006 plaintiff Nos.1, 3 and 4 were residing at Bijjehalli and Komeranahalli and the same was denied. She admits that plaintiff No.2 was brought to Bijjehalli to do pooja. She also admits that at the time of her marriage, she was aged about 15 years and her husband was aged about 25 to 30 years and they lived together for a period of 20 years. It is suggested that her husband passed away within 2 to 3 months of her marriage and the same was denied and she deposed that he was aged about 50 years at the time of his death. She also admits that she is not having any document to show that she is the daughter of her husband’s sister. It is suggested that she never lived at Bijjehalli and the same was denied. However, she admits that she is getting the pension from last 15 years. It is her evidence that she gave affidavit at the time of getting the widow pension. Further suggestion was made that she is falsely deposing that plaintiffs with an intention to cheat her, collected the sale deeds from her and the same was denied. But she has not given any complaint in this regard. It is her evidence that she was paying tax to the property through the plaintiffs. But suggestion was made that she never gave money to the plaintiffs to pay the tax and the said suggestion was denied. - 52 - RSA No. 2341 of 2006 46. The other witness is DW2-Muddanna son of Veeranna who is defendant No.2. He deposed before the court that he had purchased 6 acres 7 guntas of land from defendant No.1 and he is enjoying the said property. Through him, the documents of Ex.D32 to D43 were marked. In his evidence, he admitted that there is no document to show that husband of defendant No.1 lived in his village till his death. He says that suit schedule property measures 12 acres 13 guntas. He deposed that defendant No.1 is residing in the said house since the beginning, but plaintiff No.2 is residing in the said house since about 17 to 18 years. The husband of defendant No.1 had mortgaged the suit schedule property in favour of Chikkanakote Karigowda and during his lifetime, he got it redeemed. It is admitted that his wife, the wife of PW5 and the wife of said B. Lingappa are sisters. There is no ill-will between him, said B. Lingappa's wife and PW5. He admits that witness who has cited in the sale deed is his brother-in-law - Thimmanna and also admits that his daughter is given in marriage with the son of the said Thimmanna, who is the attesting witness. 47. The other witness is DW3. In his evidence, he says that he knows only plaintiff No.2, defendant Nos.1 and 2 and he do not know other plaintiffs. He has seen the husband of - 53 - RSA No. 2341 of 2006 defendant No.1 and his name is Poojari Lingappa and he died about 20 years back and his native is Bejjihalli and he was the priest of Bopparayaswamy Temple and his father's name is Muddappa and he died about 50 to 60 years back and he was also the priest of the said temple. DW3 says that he know the suit scheduled property and defendant Nos.1 and 2 are in possession of the said property. 48. This witness was subjected to cross-examination. In the cross-examination, he says he cannot say the survey number and the extent of adjoining lands of the suit schedule property, so also, he cannot tell the boundaries of those lands. However, he admits that the husband of defendant No.1 died within 3 months of their marriage. After the death of her husband, defendant No.1 used to live six months in a year at Huligere and remaining six months at Bejjihalli. It is suggested that the first defendant is not at all residing at Bejjihalli at any point of time and she is the permanent resident of Huligere and the same was denied. 49. The other witness is DW4 and he is the son of the executant of the sale deed in favour of Poojari Lingappa. He says that his father had executed the sale deed. He had seen - 54 - RSA No. 2341 of 2006 the first defendant at the time of the sale of the suit schedule property by his father in favour of Poojari Lingappa and Poojari Lingappa was the husband of defendant No.1. Suit schedule property was sold to defendant No.1’s husband about 40 years back. He also had been to the Sub-Registrar Office at the time of registration of the sale deed in favour of first defendant’s husband. 50. This witness was subjected to cross-examination. In the cross-examination, he admits that at the time of registration, he was standing outside the Sub-Registrar office. It is admitted that first plaintiff often visits the village of Huligere. It is suggested that B. Muddanna passed away 20 years ago and the same was denied. He admits that he was staying in the house of Boppanna at the time of his education. It is suggested that he was minor in the year 1958 and the same was denied. He admits that plaintiffs’ sister was given to Doddeerappa i.e., the brother of Shankarappa. It is suggested that he never seen the Poojari Lingappa and the same was denied. It is suggested that Poojari Lingappa died prior to 1959 and he has never seen him and the said suggestion was denied. - 55 - RSA No. 2341 of 2006 51. The other witness is DW5, who is the brother of defendant No.1. He says that he knows plaintiffs and defendants. His mother's name is Muddamma and his mother was having a brother by name Linganna. First defendant was given in marriage to him and he passed away about 20 years back. He also says that he had seen the suit schedule property and the same is in possession of the first defendant. 52. This witness was subjected to cross-examination. In the cross-examination he says that the husband of the first defendant might have died in the year 1981-1982 and he cannot tell in which year, the marriage of first defendant was performed with said Linganna. It is suggested that husband of defendant No.1 passed away within 3 months of the marriage and the same was denied. 53. The other witness is DW6. He says that second plaintiff was brought from Komeranahalli to Bejjihalli and husband of first defendant is Poojari Linganna and he had seen him and he passed away about 15 to 20 years back. At that time, he was aged about 75 to 80 years. He further says that the first defendant is cultivating the land. - 56 - RSA No. 2341 of 2006 54. This witness was also subjected to cross- examination. In the cross-examination he admits that he is not having any adjacent property to the suit schedule property. However, he claims that his property is situated at the distance of ¼ kilo meters from suit schedule property. It is suggested that he is having acquaintance with defendant Nos.1 and 2 and the same was denied. 55. The another witness is DW7. DW7 says that defendant No.1 is his aunt. He says that defendant No.1 was married with Poojari Lingappa and he had also seen him. This witness was also subjected to cross-examination. In the cross- examination he admits that first defendant and her husband both are illiterates. He says that husband of defendant No.1 was alive for 18 years. It is suggested that the husband of first defendant passed away within 3 months of their marriage and the same was denied. 56. Having considered the evidence of PW1 to PW5 and DW1 to DW7, now, this Court has to consider both oral and documentary evidence available on record. It is not in dispute that Poojari Lingappa had purchased the property in terms of Ex.P1 in the year 1958 from Karegowda son of Chikkegowda - 57 - RSA No. 2341 of 2006 who is the resident of Chikkanakote. Both the plaintiffs and defendants admit this document. Hence, it is clear that the original owner of the suit schedule property is Poojari Lingappa. 57. Now, the claim made by the first defendant is that her husband is Poojari Lingappa. So also the claim made by the plaintiffs is that their father is also Poojari Lingappa. In order to prove the fact that the plaintiffs are the sons of Poojari Lingappa, they mainly relied upon the documents of Ex.P49 to P51. The Trial Court also considered the said documents. Having perused Ex.P49, it discloses that this is the voter list of the year 1998. That means, this is subsequent to the dispute between the parties since, the suit was filed in the year 1992 itself at the first instance by the Lakkamma for the relief of permanent injunction. This voter list pertains to House No.20 wherein the name of plaintiffs are reflected and father name is mentioned as Poojari Lingappa. The trial Court has taken note of this document. 58. The Court has to take note that in Ex.P49, the age of B.P.L Muddanna is mentioned as 43 years, but his wife's age is mentioned as 28 years. That means difference of 15 years. This document came into existence in the year 1998 and this - 58 - RSA No. 2341 of 2006 document is in the handwriting format and not in printed format. Thus, it is clear that the said document is a created document in the year 1998 after the dispute. Hence, the Trial Court committed an error in referring this document to comes to the conclusion that plaintiffs are the sons of Poojari Lingappa. 59. The other document is Ex.P50. This document is of the year 1983. No doubt, Ex.P50(a) is the relevant entries in the voter list of the year 1983 in respect of the plaintiffs wherein the house number is mentioned as 104. In Document at Ex.P49, house number is mentioned as 20. Thus, there is a discrepancy with regard to the house number is concerned and the same is in respect of Bejjihalli voter list. On perusal of Ex.P50(a), though it is mentioned as Lingappa son of Muddanna, Muddanna son of Lingappa, Rangamma daughter of Linganna and Rangamma wife of Muddanna, the same was not tallies with each other and nowhere it is mentioned as Poojari Lingappa. However, this document also relied upon by the trial Court. 60. The other document is Ex.P51 which is the voter list of the year 1988 and relevant entries are marked as Ex.P51(a) - 59 - RSA No. 2341 of 2006 wherein the house number is mentioned as 129. Thus, house number in all the three voter lists are different wherein also, the voters name is mentioned as Muddanna – Ningappa; Rangamma – Muddanna; Rangamma – Ningappa; Eranna – Ningappa; Rajanna – Ningappa; Ninganna – Ningappa and Rangamma – Ninganna. Here the name is mentioned as Ningappa not Lingappa. Hence, there is a discrepancy in all the three voter lists. However, these are the documents taken note of by the Trial Court while considering the relationship between the parties. If really they are the sons of Poojari Lingappa, their names would have been mentioned in the voter list of 1983 and 1988 as sons of Poojari Lingappa. But the same is not reflected in the said documents. But in the subsequent document of 1998 as per Ex.P49, the name of Poojari Lingappa is inserted as the father of B.P.L Muddanna, Lingappa and Eranna and in respect of Rangamma, her husband's name is mentioned as Lingappa and her age is 38 years. Hence, it is clear that Ex.P49 is a created document and Ex.P50 and P51 does not disclose the name of Poojari Lingappa. 61. On the other hand, the defendants rely upon the document of Ex.D13. On perusal of Ex.D13, it discloses that the said document came into existence prior to the dispute which - 60 - RSA No. 2341 of 2006 arose between the parties i.e., in the year 1956. The recital of this document is very clear that the Lakkamma i.e., first defendant is the resident of Huligere and no dispute to that effect. But it is specifically mentioned that she is the wife of Bejjigere Poojari Lingappa. It is the case of defendant No.1 that she married Poojari Lingappa. This document is even prior to the purchase of the property by the Poojari Lingappa in the year 1958. Hence, it is clear that defendant No.1 married with Poojari Lingappa prior to 1956. The defence of the plaintiffs throughout that husband of defendant No.1 passed away within 3 months of their marriage and the same has been categorically denied by defendant No.1. No doubt, DW3 admits that husband of defendant No.1 passed away within 3 months of their marriage and the same cannot be accepted for the reason that he was alive in the year 1958 when he had purchased the property and document at Ex.D13 which is of the year 1956 also shows the name of defendant No.1 as wife of Poojari Lingappa. 62. It is also important to note that in the year 1958, Poojari Lingappa had purchased the property from Karegowda son of Chikkegowda as per Ex.P1 and subsequently, he had sold half gunta of land in favour of Lingappa and also the - 61 - RSA No. 2341 of 2006 Doddalingappa in the year 1967 and 1972 respectively. Though, initially, the plaintiffs denies those sale deeds, but subsequently admitted the same. It is emerged that both of them are in possession of the property in which they have purchased through the sale deed of the year 1966 and 1972. Hence, the contention that her husband passed away within 3 months of her marriage is falsified. 63. It is also important to note that the case of DW1 that her husband passed away prior to 1985. Since then, she had availed the benefit of widow pension and the same was in the year 1985 and an application was filed for pension. But it is specific case of defendant No.1 that these documents came into existence at the instance of the plaintiffs and with an intention to cheat defendant No.1, they got prepared these documents and the same is also pleaded in the written statement as well as in the evidence. 64. Having perused the documents of Ex.P28 to P31 which the plaintiffs rely upon, no doubt, her husband's name is mentioned as Lakkamma wife of late Ninganna. In Ex.P28, it is mentioned that her husband passed away 20 years ago. This document is dated 26.06.1985. The court has to take note that - 62 - RSA No. 2341 of 2006 before Ex.P28, another document of affidavit came into existence which is marked as Ex.P29, wherein declaration of defendant No.1 is that her husband's name is Linganna not Ninganna and also it is declared that her husband passed away 30 years back. This document is dated 25.05.1985, but Ex.P28 is dated 26.06.1985 wherein there is a difference in mentioning the death of her husband as 20 years and 30 years back in Ex.P29. So also other document is genealogical tree at Ex.P30 wherein it is mentioned that the name of husband of defendant No.1 as Ninganna and her husband’s father’s name is Veeranna and that is the case of the plaintiffs. This document is also dated 26.06.1985 I.e., as similar to Ex.P28. But DW1’s specific case is that her husband's name is Poojari Lingappa and the document of the year 1956 i.e., Ex.D13 is very clear that her husband's name is Poojari Lingappa. It is the specific plea of defendant No.1 that plaintiffs only taken her to the competent authority to get the pension and they played fraud and both the pleadings and the evidence corroborates with each other in view of discrepancy in each of the document. 65. Having perused these documents it is very clear that even though document of Ex.P28 came into existence in the month of June 85, death of husband of defendant No.1 is - 63 - RSA No. 2341 of 2006 mentioned as 20 years and Ex.P29 came into existence on 25.05.1985 wherein the death of her husband is mentioned as about 30 years back. If really he died about 20 or 30 years back, how he executed the sale deeds in favour of Lingappa and also the Doddalingappa in the year 1966 and 1972 and the same is not explained. Apart from that both the courts have lost sight in considering the document of Ex.D13, which was the old document even prior to the purchasing of the property by Poojari Lingappa i.e., of the year 1956 and Poojari Lingappa purchased the property in the year 1958 and subsequently, he was alive and sold the property in favour of Lingappa and also the Doddalingappa in the year 1966-67 and 1972. Hence, it is very clear that he was alive for some time. Thus, the very case of the plaintiffs that husband of defendant No.1 passed away within 3 months of her marriage cannot be sustained. All these documents are not considered in a proper perspective by the trial Court as well as the appellate court. The document of Ex.D13 came into existence at the time when there was no dispute between the parties and no explanation on the part of the plaintiffs with regard to document of Ex.D13. 66. It is also important to note that the very son of the vendor of the Poojari Lingappa appeared before the court as - 64 - RSA No. 2341 of 2006 DW4 and he gave specific evidence before the trial court that he was also very much present at the time of executing of document of Ex.P1 by his father, had executed the sale deed in favour of Poojari Lingappa who is none other than the husband of the first defendant. In the cross-examination of DW4 nothing is elicited to disbelieve the fact that he is not the son of the original owner who sold the property in favour of Poojari Lingappa. He categorically says that he had seen the first defendant at the time of sale of the suit schedule property by his father in favour of Poojari Lingappa and Poojari Lingappa was the husband of the first defendant. The suit schedule property was sold to the first defendant's husband about 40 years back. In the cross-examination, except eliciting that at the time of registering the document, he was standing outside the Sub-Registrar office, nothing is elicited against the case of DW1. It is suggested that he was minor in the year 1958 and the same was categorically denied and he admits that plaintiffs’ sister was given to Doddeerappa and categorically denied that he had not seen the husband of the first defendant. When the very vendor's son comes before the court and deposes that his father sold the property in favour of Poojari Lingappa and Poojari Lingappa is the husband of the first defendant, both the - 65 - RSA No. 2341 of 2006 courts fails to take note of his evidence who is the son of the owner of the property. 67. No doubt, the plaintiffs have examined the attesting witnesses of Ex.P1. But they are only the attesting witnesses of the document. But DW4 evidence is very clear that sale was made in favour of Poojari Lingappa, who is the husband of the defendant No.1. The documentary evidence prevails over the oral evidence and the document of the year 1956, which is marked as Ex.D13 is very clear that first defendant is the wife of Poojari Lingappa. It is also important to note that though the plaintiffs claim that they are the sons of Poojari Lingappa, not produced the school certificates before the court except relying upon the document of Ex.P49 to P51 and this court already found discrepancies in mentioning the name in the said documents and house list number each different Sl.No.20, 104 and 129. Document of Ex.P49 came into existence in the year 1998 i.e., subsequent to the dispute which arose between the parties. 68. No doubt, the counsel appearing for the respondents would contend that earlier suit was filed by the Lakkamma and the same was withdrawn and no injunction was - 66 - RSA No. 2341 of 2006 granted. But with regard to the identity of a person is concerned, the evidence is very clear, not only documentary evidence but also oral evidence supports the claim of first defendant and witnesses PW1 to PW5 categorically admits that home deity is Beeradevaru of Komarenahalli and except plaintiff No.2, all the brothers are residing at Komarenahalli. 69. Apart from that when dispute was arise with regard to the identity of a person is concerned since the plaintiffs claim that the very Poojari Lingappa had executed a gift deed in terms of Ex.P2 and both the admitted documents at Ex.P1 and P2 were sent to the handwriting expert. Both the handwriting expert given the report against the plaintiffs. Though filed the objection statement, could not examine one of the expert. But other expert is examined as CW1 before the trial Court and his evidence is also very clear that the thumb impressions found in Ex.P1 and P2 are not identical and not belongs to the same person. 70. No doubt, the counsel appearing for the respondents would vehemently contend that the evidence of handwriting expert cannot be believed and there is a differences in identifying the ridge marks and the said - 67 - RSA No. 2341 of 2006 difference is not elicited from CW1. But court also can compare the same exercising the power under Section 73 of the Evidence Act. The opinion of the expert is only a directory and the same not binding on the court. Having taken note of the document Ex.P1(a) and P2b(2) thumb impressions, the ridge marks available are not one and the same. There are differences and the same can be compared considering Ex.P1(a) and P2b(2). No doubt, extensively, handwriting expert was cross examined. But nothing is elicited from the mouth of CW1. Instead of it is elicited that the thumb impression will not be changed by passing of time. When that answer is elicited from the mouth of CW1 from the respondents counsel during the course of cross examination, it is clear that it will not be changed by passing of the time. 71. It is important to note that the expert taken note that the photographs and scaling is a primary evaluation. He categorically admits that Ex.C1 photographs were taken using the scale, but not mentioned the values. He admits that in Ex.C1, he did not mention that from which camera, lens and magnification was used and those questions are immaterial. When he conducted the examination, except eliciting the answer that he did not find smudge and the same was shown - 68 - RSA No. 2341 of 2006 to the witness. He says that none of them are smudged and it is not the case of the expert also that it was smudged and he categorically says that it depends upon the ink and impression. Smudge means over ink and he categorically denies that descending ridges are re-curved back at the center core and the same is mentioned in Ex.C1. Re-curve is the line turning in the center. If the line turns in the center, it is not correct to call it is a whorl pattern. He admits that he knows ridge counting method. But he did not use the said method as the same was not necessary. But the fact is that plaintiffs claim is that Ex.P2 was executed by the very same Poojari Lingappa. But it is very clear that signatures found in Ex.P1(a) and P2b(2) are not one and the same. Hence, it is clear that the person who is the signatory to Ex.P1 is different from the person who executed the document at Ex.P2. The crux of the issue involved between the parties is also same. Both the thumb impressions are not one and the same. Hence, the very handwriting expert report available before the court shows that the same is not by one person, it is by two persons. One of the expert is no more, but the plaintiffs have not taken any steps to examine other officials who involved in giving the report. The opinion of the District Judge is very clear that no steps were taken to examine - 69 - RSA No. 2341 of 2006 the person who was having authentication to the other report. But other witness who has been examined, his evidence is consistent. 72. Apart from that, this Court can compare the signature by looking into Ex.P1(a) and P2b(2). In this regard, this Court also would like to rely upon the judgment of the Apex Court in the case of INDIAN OVERSEAS BANK VS OM PRAKASH LAL SRIVASATAVA decided on 19.01.2022 with regard to the scope of Section 73. This Court would like to extract paragraph 13 which reads as under: “13. It was further submitted that Charges 4 and 5 were also not proved and sought to refer to the judgment of this Court in Lalit Popli v. Canara Bank more specifically para 13, which reads as under : “13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of - 70 - RSA No. 2341 of 2006 familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert's evidence is not there, Court has power to compare the writings and decide the matter.” Emphasis supplied 73. This Court also would like to rely upon the judgment in respect of Section 73 of Evidence Act in the case of STATE (DELHI ADMINISTRATION) VS PALI RAM delivered on 26.09.1978. This Court would like to extract the discussion made in the judgment which reads as follows: “30. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing - 71 - RSA No. 2341 of 2006 with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet- anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. 31. It is not the province of the expert to act as Judge or Jury. As rightly pointed out in Jitli v. Jones [AIR 1934 All 273 : ILR 56 All 428] the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the court or jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. - 72 - RSA No. 2341 of 2006 The court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence. 32. In this connection, the observations made by Hidayatullah, J. (as he then was) in Fakharuddin v. State of Madhya Pradesh are apposite and may be extracted: “Both under Sections 45 and 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in one case and to appraise the value of the opinion in the other case. The comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in a large measure in the disputed writing. In this way, the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the court must see for itself and with the assistance of the expert come to its own conclusion - 73 - RSA No. 2341 of 2006 whether it can safely be held that the two writings are by the same person. This is not to say that the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.” 33. Since even where proof of handwriting which is in nature comparison exists, a duty is cast on the court to use its own eyes and mind to compare the admitted writing with the disputed one to verify and reach its own conclusion, it will not be wrong to say that when a court seised of a case, directs an accused person present before it to write down a sample writing, such direction in the ultimate analysis, “is for the purpose of enabling the court to compare” the writing so written with the writing alleged to have been written by such person, within the contemplation of Section 73. That is to say, the words “for the purpose of enabling the court to compare” do not exclude the use of such “admitted” or sample writing for comparison with the alleged writing of the accused, by a handwriting expert cited as a witness by any of the parties. Even where no such expert witness is cited or examined by either party, the court may, if it thinks necessary for the ends of justice, on its own motion, call an expert witness, allow him to compare the sample writing with the alleged writing and thus give his expert - 74 - RSA No. 2341 of 2006 assistance to enable the court to compare the two writings and arrive at a proper conclusion.” 74. This Court also would like to rely upon Judgment in respect of Section 73 of Evidence Act in the case of LALIT POPLI VS CANARA BANK AND OTHERS decided on 18.02.2003 and would like to extract the discussion made in the judgment which reads as follows: “12. Sections 45 and 73 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) deal with opinion of experts and comparison of signature, writing or seal with others admitted or proved. Section 45 itself provides that the opinions are relevant facts. It is a general rule that the opinion of witnesses possessing peculiar skill is admissible. ……. 13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by - 75 - RSA No. 2341 of 2006 such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert's evidence is not there, the court has power to compare the writings and decide the matter.” 75. Having considered and reassessed the evidence available on record in keeping the substantial question of law framed by this Court at the time of admission with regard to the scope of the appeal and the definite finding of fact under Order XLI Rule 1 of CPC as well as the additional substantial question of law framed by this Court with regard to the handwriting expert, whether the same can be believed. When this Court examined the expert evidence as well as compared the signatures by exercising the power under Section 73 of the Act, it is very clear that the person who had purchased the - 76 - RSA No. 2341 of 2006 property in year 1958 under Ex.P1 is not the person who executed the gift deed at Ex.P2. Considering Ex.D13, it is very clear that the person who purchased the property in the year 1958 is the husband of defendant No.1. The plaintiffs who rely upon the document of Ex.P2 is out of Court in view of the opinion of the handwriting expert as well as comparison made by this Court. The plaintiffs claim that the author of the document at Ex.P2 is their father along with his brother. But that is not proved. In order to prove that they are the children of Poojari Lingappa also, not produced any documents. The Trial Court and Appellate Court relied upon only the documents of Ex.P49 to P51 as well as Ex.P28 to P32. Under what circumstances, Ex.P28 to P32 came into existence, there is specific plea of defendant No.1 that her illiteracy was misused. 76. Having considered the discrepancies in the documents which have been discussed above, it is very clear that defendant No.1 is illiterate and taking advantage of the same by the plaintiffs, got created the document of Ex.P28 to P32 and P49 i.e., subsequent to the dispute and Ex.P50 and P51 also will not come to the aid of the plaintiffs in proving that they are the children of Poojari Lingappa since nowhere in the said document it is mentioned as their father Poojari Lingappa - 77 - RSA No. 2341 of 2006 and only got prepared the document of Ex.P49 against their names as Poojari Lingappa. These are the facts on which the Trial Court as well as the First Appellate Court lost their sight and erroneously come to the conclusion that they are sons of Poojari Lingappa. 77. Apart from that, additional evidence available before this Court in referring the documents of Ex.P1 and P2 is clear that defendant No.1 is the wife of Poojari Lingappa, who had purchased the property in the year 1958 as per Ex.P1 and she was in possession of the said property after death of her husband and the same is admitted regarding revenue entries. The revenue record stands in the name of defendant No.1. It is also clear that defendant No.1 sold the property in favour of defendant No.2 in the year 1989 and the said sale deed was not challenged immediately, instead of that changed the revenue entries and the same was challenged by defendant No.1 before the Assistant Commissioner and Assistant Commissioner also reversed the entries made in favour of the plaintiffs and the order of Assistant Commissioner was taken to the High Court in a writ proceedings and the High Court also made it clear that matter has to be dealt with by the Civil Court since there is a dispute with regard to the relationship between - 78 - RSA No. 2341 of 2006 the parties and title. Under the circumstances, there was no any relief sought in respect of the sale deed of the year 1989 executed by the first defendant in favour of the second defendant and no challenge is made to declare that said sale deed is null and void and not binding on the plaintiffs. When this Court comes to the conclusion that first defendant is the wife of the Poojari Lingappa and the sale deed was made by his wife, the plaintiffs cannot claim any relief as there is no prayer. Apart from that there is admission with regard to the fact that plaintiff No.2 only was at Bejjihalli and other plaintiffs are residing at Komeranahalli. It is the specific case of defendant No.1 that plaintiff No.2 was brought only to do pooja. Admissions are also very clear that they are all residents of Komeranahalli and not the residents of Bejjihalli. It is also the specific case of defendant No.1 that plaintiff No.2 was staying along with her when he was brought to Bejjihalli. 78. Having reassessed the evidence available on record, it discloses that there is a perversity in the finding of the Trial Court as well as First Appellate Court with regard to identifying of a person holding that the plaintiffs are the sons of the Poojari Lingappa and fails to take note of undisputed document of Ex.D13 and so also other relevant documents which have - 79 - RSA No. 2341 of 2006 been discussed about and hence this Court considered the question of fact as well as substantive question law. Hence, answered the substantial questions of law and also the additional substantial question of law accordingly. 79. In view of the discussions made above, I pass the following: ORDER The second appeal is allowed. The impugned judgments of the Trial Court dated 19.04.2002 passed in O.S.No.64/1997 and the First Appellate Court dated 20.04.2006 passed in R.A.No.17/2002 are set aside. Consequently, the suit filed by the plaintiffs is dismissed. Sd/- (H.P.SANDESH) JUDGE SN/ST/MD/SSD