1986 PLP 51 (MLD)

Hamid Husain for Applicants. Rehmat Elahi for Respondent. Date of hearing: 18th January, 1984. The appellant No.1 was the original allottee of quarter No.505/B Unit No.2, Latifabad, Hyderabad, Subsequently the said allotment was changed in the name of the respondent on 30th December, 1966 by the ‑Deputy Commissioner, Hyderabad. The appellant No. l continued to remain in possession, where appellant No.2 the son of the appellant No.1 and respondent also resided. The respondent apprehending dispossession at the hands of the appellant filed a suit against the appellants alleging that they want to dispossess her and by making false application want to get the quarter transferred in their name. The respondent prayed for their eviction, and vacant possession of the portion of the disputed quarter. The appellant contested the suit and in his written statement pleaded that the respondent has by fraudulent means and in collusion with her husband got the quarter transferred in her name. It was admitted that after she got the quarter allotted in her name she has been paying the instalments. The appellant also alleged that the respondent and her husband had induced him to sign an application on the pretext that the same was for obtaining electricity connection which in fact later on transpired to be an application for surrender of the quarter in favour of the respondents. On the basis of this application on 3‑10‑1966 the respondent got fraudulently changed the allotment order in her own favour. The suit was decreed and in appeal the judgment and decree of the learned trial Court was confirmed. The applicants have filed this revision application against the judgment and decree passed against them. The learned counsel for the applicants has contended that the respondent has obtained the transfer in her favour by fraudulent means. The burden therefore, is on the applicants to establish that fraud has been committed. The first and starting point is the application which was submitted for obtaining the transfer. This is Exh.51 in which it has been stated that the applicant is an old man having no successor except the respondent who is his only daughter. It was further stated that total dues were paid by him and that this quarter may be transferred in the name of the respondent. This application was made on 3‑10‑1966. On 14‑10‑1966 his statement was recorded in which he reiterated the same facts. Another affidavit has also been filed as Exh. 53, confirming the contents of the application. It is, dated 3rd October, 1966. So far the application Exh.51 is concerned the applicant's plea is that it is a product of fraud and misrepresentation, but except the words 'of the applicant No.1 there is nothing to show that a fraud has been committed. In fact in his statement he did admit that he had moved an application the name of the respondent, but immediately thereafter, he resiled from this statement. This adversely reflects on the authenticity of the statement of the applicant No.1. The applicant No.1 denied that he had filed any affidavit or made statement before the Deputy Commissioner. All' those documents were repudiated by him. In fact it is the applicants who had summoned the witness from the relevant department who had produced these documents. At the request of the applicant Exhs.51, 52, 53 were sent to the handwriting expert, who submitted his report confirming that disputed signatures seem to be that of the applicant. The hand writing expert was however, not called by any party and he was not examined. Mr. Hamid Hussain, the learned counsel has contended that the circumstances that the attesting witness on Exh.53 and the Notary Public were not examined, nor it is clear that any one identified the applicant No.1 to the officer before whom the alleged statement Exh.52 was made and that on Exh.54 instead of signature, thumb‑impression of applicant No.1 has been affixed and no one has identified him, establish that the applicant No.1 did put his signature on any disputed documents. It was further contended that the Courts below have wrongly considered the report of the handwriting expert as he was not examined. The learned counsel, further contended that the contents of the application Exh.51 are not correct as the respondent No.1 cannot be said to be the sole heir and the daughter of the applicant No.

1. It has transpired that the respondent is the step daughter of the applicant No.1, and therefore, if this statement has been made it cannot be said that the entire application for transfer on which he admits his signature is completely false. The statement that he had filed an application for transfer and the fact that thereafter, the applicant No.1 has not paid the instalment which are paid by the respondent lend support to respondent's case. The learned counsel for the appellant relied on 1974 S C M R 411 and contended that as the handwriting expert has not been examined the report submitted by him is of no legal effect. The applicant No.1 had applied for the examination of this document by the handwriting expert and the fact that he did not produce him as a witness can lead to the presumption that if produced he would have deposed against him. Beyond this, no further reliance can be placed upon the report of the expert. In the facts and circumstances of the case as they are placed this presumption is sufficient to strengthen the case of the respondent. Mr. Hamid Hussain contended that according to the respondent, the applicant No.1 was being maintained by the respondent, and therefore, there was a fiduciary relationship between the parties and in these circumstances, the burden is upon the respondent to establish that the application and affidavit were signed by the applicant No.1 or that no fraud was committed by the respondent. The applicant in fact has not admitted that he was being maintained by the respondent or her husband. He has stated that he was maintaining the respondent. In view of this contradictory statement by the parties, it is not established that the applicant No. 1 and the respondent has some fiduciary relationship. However, so far burden of proof is concerned, it was on the applicant No. l to establish that the respondent obtained the transfers of the house by fraud and misrepresentation. From the evidence both the Courts below have given a concurrent finding of fact that the application No.1 has transferred the house to the respondent and no fraud was established. Such a conclusion can reasonably be drawn from the evidence of the parties, and therefore, the Courts below have neither mis-conducted, nor they have acted without jurisdiction. In these circumstances, the Revision Application is dismissed, with no order as to costs. H . B . T . Revision dismissed.