JAIN, J. - (1.) THIS second appeal under Section 100 of the Civil Procedure Code, on behalf of the plaintiff-appellants, is directed against the judgment and decree dated 1. 03. 1977 passed by the Civil Judge, Sikar, in Civil Regular Appeal No. 73/1973, whereby he set aside the judgment and decree dated 19. 3. 1971 passed by the Munsiff, Sikar, in Civil Suit No. 177/1969, whereby the suit of the plaintiff-appellants for eviction was decreed.
(2.) THIS court, vide order dated 6. 10. 1978, framed the following substantial questions of law involved in this second appeal:- ``1. Whether in a case where the defendant denies the title of the plaintiff, the prima facie evidence about the ownership of the property in question is relevant or not and can be looked and considered by the Court or not? If so, what is the effect of the same when the learned Civil Judge ignored the said evidence holding it to be an irrelevant and unnecessary? 2. Whether any adverse inference can be drawn against the plaintiff for the non-production of certain evidence regarding the difference in the boundaries of certain documents when the identity of the properties is not disputed in the trial court and no question is put either to the plaintiff or his witness in the cross examination in getting an explanation for the difference in the boundaries specially when they had stated that the said documents related to the property in question? 3. Whether the evidence of a handwriting expert which is a opinion evidence, can rebut the evidence of the plaintiff to prove the execution of the document? What is the effect on the opinion of a handwriting expert when the standard signatures are not taken after getting it certified by the Court and no evidence is led that they were the standard signatures of that person. In other words, the identity of the standard signatures is not proved then whether the opinion of a handwriting expert has got any value and relevancy? I have heard the learned counsel for both the parties on the aforesaid substantial questions of law and minutely scanned the judgments, impugned in this appeal, as well as the record of both the courts below. The shop in dispute was taken on rent by the defendant about 60 years ago i. e. 1. 4. 1946. The tenant failed to make the payment of monthly rent, therefore, a suit for ejectment and for arrears of rent was filed by the original plaintiff Gajanand was back on 19th of May, 1965 against defendants Ram Kumar and Norang Rai. The original plaintiff as well as both the defendants have died during the pendency of the suit/appeal. The suit for ejectment was filed on the ground of default in making the payment of rent. The description of the shop was given in the plaint. The defendants filed their written statement wherein they denied the default in making the payment of monthly rent. The defendants further denied the title of the property in favour of the plaintiff. On the basis of the pleadings of the parties the learned lower Court framed eight issues, which are reproduced in the judgments of the courts below. The learned lower court while deciding issue No. 1 recorded a specific finding, after considering oral and documentary evidence on the record, that the plaintiff was the owner of the property in dispute and the defendants are the tenants on it. So far as default in making the payment of rent is concerned, the learned lower court held that there was no default in payment of rent as the rent remained deposited with the defendants itself as per the instructions of the plaintiff. However the learned lower court granted a decree of eviction of the disputed shop on the ground of denial of title. Being aggrieved with the same the defendants preferred regular first appeal before the first appellate court. The first appellate court instead of deciding the appeal issue wise, considered the question of identity of the disputed shop. The learned presiding officer of the first appellate court went at the spot to know the exact description of the shop in dispute. However, it is not in dispute that no `site note' was prepared by the presiding officer. The said fact has been mentioned by the first appellate court itself in para 6 of the impugned judgment. The learned first appellate court after considering Exhibit-1, Exhibit-14, Exhibit-12 and Exhibit-13, recorded a finding that description of the shop in dispute as mentioned in the plaint is not correct and consequently while allowing appeal of defendants, set aside the judgment of the lower court decreeing the suit of the plaintiff for ejectment.
(3.) THE learned counsel for the appellant contended that the identify/description of the shop in dispute was not disputed by the defendants in the written statement nor there was any issue in this regard. THEre was no evidence on behalf of the defendants but the first appellate Court itself developed the said point without any pleading and evidence on the record and, as such, the finding of the learned first appellate Court is liable to be set aside. He also referred the statements of the defendants' witnesses wherein the identity of the shop in dispute was not challenged. He further contended that so far as denial of title of the plaintiff in respect of shop in dispute by the defendants is concerned, therefore is a documentary evidence in this regard. He referred the written statement as well as Exhibit-3, the reply given by the defendants to notice for ejectment given by plaintiff before filing suit, wherein the defendants denied the title of the plaintiff. He also referred the finding of the learned lower Court in respect of issue No. 1 wherein he considered oral and documentary evidence including Exhibit-1, the mortgage deed, executed by original owner of the shop Abdul Aziz in favour of the plaintiff, who let out the shop in dispute to the defendants. Exhibit-11 was the rent note executed by the defendants, which was wrongly disbelieved by first appellate court. He, therefore, contended that the judgment of the learned first appellate Court is not based even on the pleadings of the defendants in their written statement and defendants did not adduce any evidence in this regard, therefore, the finding of the learned first appellate Court is liable to be set aside and the judgment of the lower court is liable to be restored. He also contended that the learned first appellate court committed an illegality in recording a finding that Exhibit-11, the rent-note is not proved. He referred the statement of DW-5, Shri Krishna Charan, the hand-writing expert, and contended that in fact the rent-note was not disputed by the defendants and the statement of DW-5, Shri Krishna Charan, was not material, relevant and trustworthy also and the same was liable to be discarded in view of the statements of the plaintiff's witnesses, who had specifically proved the Exhibit-11, the rent-note, in respect of the rented premises in dispute. The learned counsel for the respondents supported the judgment of the first appellate court and contended that there is a variance in the description of the disputed shop in Exhibit-1, Exhibit-14, Exhibit-12 and Exhibit-13, therefore, the first appellate court was right in setting aside the decree of eviction passed by the lower court. I have considered the submissions of the learned counsel for both the parties. ;