JANARDAN SAHAI, J. - (1.) A suit for rent and ejectment was filed by the respondents No. 1 and 2 against Tejashwi Investment Company Ltd. alleging that the company was its tenant. The suit was decreed ex parte on 8.8.1986. The decree was put into execution. The applicant Ram Adhar Singh resisted delivery of possession. Objections under Order XXI, Rule 97. C.P.C. were filed by the applicant alleging that he was in possession in his own right being the tenant since 1.2.1984 and that the decree could not be executed against him. The trial court by its order Impugned dated 3.11.2003 dismissed the objections holding that the tenancy agreement relied upon by the applicant was not proved and that he was not a tenant but was set up by his brother who was a Director in the company which was the tenant against which the decree was passed.
(2.) I have heard Sri P.N. Saxena counsel for the applicant and Sri R.K. Srivastava counsel for the respondents. It is submitted by Sri Saxena that the findings recorded by the trial court that the applicant entered into possession some time during the pendency of the execution case is not correct and in fact the applicant was in possession since even before the suit was instituted in October, 1984. Sri Saxena submits that there are documents on the record copies of which he has filed as Annexure -4 to the stay application in this revision. These documents relied upon are two certificates, one issued by the S.P. Deoria dated 19.2.1984 and the other by the A.D.M., Deoria dated 16.3.1984. In both these certificates the residential address of the applicant shown is that of the property in dispute. There is also a solvency certificate issued by the A.D.M., Deoria dated 16.4.1993 showing the same address. These documents it is contended have not been considered by the trial court. An agreement by which the petitioner's tenancy is alleged to have been created is also relied upon which the trial court found to be forged and it Is submitted that the Court below erred in relying upon its own visual Impression of the signatures upon the tenancy agreement and comparing them for coming to the conclusion that the signatures made upon the tenancy agreement are not of those of Shiv Autar Dubey the attorney of respondents 2 and 3. It is submitted that an expert's report had been submitted by the applicant and the said expert Hasan Raza was examined to prove that the signatures on the tenancy agreement are the same as the admitted signatures and his report ought to have been relied upon.
(3.) I shall first take up the contention that the Court could not have acted as an expert. The findings recorded by the Court below on this point is that Hasan Raza who was examined by the applicant as expert did not state at all that he was a handwriting expert. The certified copy of the statement of the expert has been produced before me. The witness has no doubt been referred to as handwriting expert in the description shown against his name at the head of his statement but neither in the examination -in -chief nor in the cross -examination has it been stated that he is a handwriting expert. Opinion of experts is relevant under Section 45 of the Evidence Act. Before his opinion is accepted, the Court has to satisfy Itself that the person who is being examined to prove a signature is qualified or not and is indeed an expert. As there was no statement at all made by Hasan Raza that he was a handwriting expert, he cannot be classed as an expert. His statement could, therefore, not have been relied upon and the Court below committed no error on this point. The Court below has, on the other hand, considered the statement of the expert of the respondents M. M. Kakkar. It has also made visual comparison of the signatures and has come to the conclusion that the signatures on the tenancy agreement do not tally with the admitted signatures. The trial court also considered the statements of the applicant and of his witness Ravi Bhushan but did not find them reliable. This is essentially a finding of fact and appears to suffer from no error.;