1. This is an appeal by the defendants against whom a suit for an injunction was dismissed by the learned Munsif but decreed by the learned District Judge of Bareilly. The property originally belonged to a man named Pransukh, who sold it, along with certain other zamindari property, to one Mt. Firdausi Begam. According to the plaintiffs Mt. Firdausi Bagam reconveyed the property to Mt. Ganga Kunwari, an aunt of Pransukh, under a sale deed, dated 12-11-1895. Mt. Ganga Kunwari died in 1906 and was succeeded by Pransukh, who later sold it, along with a house, to a lady named Mt. Janki Kunwari, the grandmother of the plaintiffs. On the death of Mt. Janki Kunwari her son, Shanker Sahai, inherited this land, along with some property, and entered into possession thereof. After his death the plaintiffs entered into its possession.
2. The above, in brief, is the story unfolded in the plaint. The defence, in the main, was that Mt. Firdausi Begam never reconveyed the property to Mt. Ganga Kunwari and that she remained in its possession till her death. In 1934 she executed a gift in favour of the father of the defendants and also a waqf deed in his favour. The defendants have been in possession since then. The learned Munsif found that the sale deed alleged have been executed by Mt. Firdausi Begam on 12-11-1895, in favour of Mt. Ganga Kunwari was a piece of forgery. The signature no doubt looked like hers, but it was, in point of fact, not hers. On the question of possession he found that Mt. Firdausi Bagam and, after her, the defendants have been in possession ever since. The learned District Judge did not address himself to the question of possession. He decreed the suit only on the finding that the deed of re-sale was not a fictitious document. The defendants have come to this Court in second appeal.
3. The learned counsel contends that the finding of the learned District Judge that the deed of reconveyance, executed on 12-11-1895, was not a fictitious document, is not correct. He also argues that the lower appellate Court has, at all events, gone wrong in decreeing the suit, without addressing itself to the question of possession. I think the learned counsel is right in both his contentions.
4. The learned Munsif had before him two documents executed in the year 1934, which admittedly bore the signatures of Mt. Firdausi Begam. On a comparison he came to the conclusion that the alleged signature on the deed of 1895 appeared to be that of a literate lady, whereas the admitted signatures appear to be those of an illiterate woman. The learned District Judge in the very opening portion of his judgment observed:
“The documents have since been produced and I scrutinized the signatures on the wakf-deed and from this it is impossible to tell that the signature on the document of 1895 is in the same or in a different handwriting. The signature of 1934 is that of such an aged person with so feeble a hold of pen that it is impossible to tell whether it was a different person or the same person who signed a matter of nearly 40 years earlier.”
5. The propriety of a Court, constituting itself an expert in such circumstances, has been called in question in a number of cases. The leading case is that in 78 I.C 6681. Said the learned Judges at page 672:
“We may say at the outset that no expert evidence was given in this case on behalf of the defendant for the purpose of comparing this disputed signature with the admitted signatures of Sookias. The observations which the Judge has made have been made on his own view of the signatures. The practice of a Judge declaring whether a disputed signature agrees with the other signatures of a certain person without the assistance of any evidence but merely on his own inspection, has been disapproved by experienced Judges in many cases.”
6. This case was referred with approval in 1945 A.L.J 4262, to which I was a party.
7. It appears to me that this was pre-eminently a case in which the services of an expert should have been requisitioned. The learned Judge himself did not find the matter free from difficulty. The proper course for him was—more particularly because he differed from the learned Munsif on a matter on which he was by reason of his familiarity with the language and the script more competent to speak—to requisition the services of an expert.
8. On the other question, too, I feel that it is impossible for me to uphold this judgment.
9. Even if the plaintiffs' title was proved at some time in the remote past, but if they failed to prove their title within twelve years of the date of the suit they were clearly out of Court.
10. I think it is necessary that the case should be sent back to the Court of the District Judge of Bareilly. He will address himself to both the questions, viz., whether the resale by Mt. Firdausi Begam on 12-11-1895, had been established and also whether the plaintiffs had succeeded in establishing their possession within twelve years of the suit. I, therefore, allow the appeal, set aside the decree of the lower appellate Court and send the case back to that Court with the direction to re-admit it to its original number and proceed and hear it according to law. Costs will abide the result.
11. Case remanded.