Ram Ekbal Singh Yadav vs Ghamandi Singh Yadav and Others

Raj Kishore Prasad, J.—This is plaintiff''s appeal from the judgment of the court of appeal below reversing that of the trial court and dismissing his suit.

The plaintiff, brought the suit, out of which this appeal arises, for recovery of Rs. 2,800/-, besides interest, based on a handnote alleged to have been executed on 28-2-1962 by defendant 1 in favour of the plaintiff.

The claim of the plaintiff was resisted by the defendants on the ground that defendant 1 never borrowed any money from the plaintiff, much less Rs. 2,800/-, as alleged, nor did he execute any handnote, much less the handnote in suit, relied, Upon by the plaintiff and that he had no necessity to borrow any loan and the handnote in suit is forged and fabricated.

The trial court decreed the suit holding that the handnote in question, was genuine and had been executed by defendant 1 as alleged by the plaintiff and consideration had been paid therefor.

The defendants (defendant 1 is the father and defendant 2 is his son) took the matter in appeal to the district court which was heard and decided, by the learned Additional Subordinate Judge, Second Court, Sasaram, who, as stated before, dismissed the plaintiff''s suit.

On second appeal by the plaintiff, it was contended by Mr. Kailash Roy that the finding of the Court of appeal below that the hand-note in question was genuine and validly executed by defendant No. 1 for Rs. 2,800/- is vitiated for non-consideration of the following facts:-

(a) That it was immaterial whether the complaint, Ext. G, preceded the loan or followed it, if it was a part of the design to detraud the plaintiff, because the distance of time between the complaint on 13-11-1961 and the execution of the handnote on 28-2-1962 was hardly beyond three months;

(b) That the plaintiff was not asked to produce his money lending licenses of previous years, and, therefore, they were not produced in support of the plaintiff''s case that he advanced money to several others before also;

(c) That the means of the plaintiff and of the defendants have wrongly been considered, because although the plaintiff has got less lands but they may be canal irrigated and, therefore, may be more fertile and may yield more produce;

(d) That the court of appeal below has wrongly considered that as the construction of the house after the loan has not been proved, therefore, the necessity alleged by the plaintiff was not correct;

(e) That Sheopujan Singh Yadav, defendant 2, who was D. W. 12, was not relied upon by the trial court, because he misrepresented facts;

(f) That defendant 1 was Karta, and, therefore, he was asked to execute the handnote as Karta on behalf of the family and if his son, defendant 2, would have also been asked to execute the handnote, the loan would have been the personal liability of both the father and the son;

(g) That because Sital was not examined the trial court held the story of the defendant to be false but the allegation that Jagarnath, brother of defendant 1, got the suit instituted through the plaintiff by bringing Sital in collusion, has not been considered by the court of appeal below;

(h) That the court of appeal below, as will appear from the last line of para. 7, made up its mind by mentioning certain circumstances which it considered to be against the plaintiff and on the background of those facts and circumstances, it proceeded to scan the evidence adduced on behalf of the plaintiff on point of execution of the handnote as also on passing of the consideration, and, therefore, this approach by the court of appeal below was wrong in law;

(i) That the court of appeal below disbelieved the evidence of P. W. 3, because his statements were contrary to the statements made by P. W. 2; but that was no ground for disbelieving P. W. 2 also; and,

(j) That admittedly, as the court of appeal below has also found, there was no enmity between the plaintiff and the defendant 1, and. therefore, it was improbable that the plaintiff would have brought a false suit against the defendants.

The above arguments of Mr. Roy were met by Mr. J. C. Sinha, who appeared for the respondents, by countering that the questions which have been raised, are all questions of fact, and; therefore, the present appeal could not be argued as a first appeal, and, as the court of appeal below, on a consideration of the evidence of both sides and the facts and circumstances of the case, has come to the conclusion that the handnote is not genuine and was not executed by defendant 1 and no consideration passed, there was an end of the matter, and, therefore, the plaintiff''s suit has rightly been dismissed and this Court should not interfere with the said findings of fact.

It is well settled by several decisions of this Court, such as, Chulhai Lal Dass Vs. Kuldip Singh and Others, which was followed and relied upon by a learned Judge of this Court; sitting singly, in Ramadhin Singh Vs. Siaram Singh and Another, that where the defendant admits only that he had put a thumb mark or signature on a document which was not handnote sued upon, the admission does not amount to admission of the execution of the handnote and consequently the burden of proving that the particular handnote sued upon was duly executed by the defendants is upon the person suing upon the same.

It is equally well established by several decisions, one of which is In the goods of Gopessut Duttj deceased Sm. Jarat Kumari Dassi v. Bissessur Dutt 16 CWN 265 which was decided by two distinguished Judges of the Calcutta High Court, Jenkins, C.J. and Woodroffe, J., that the Evidence Act is at the same time expressed in terms which allow fill effect to be given to circumstances or conditions of probability or improbability, so that where forgery comes in question in a civil suit, the presumption against misconduct is not without its due weight as a circumstance of improbability, though the standard of proof to the exclusion of all reasonable doubt required in a criminal case may not be applicable.

The above principles, in my opinion, have been kept in view by the learned Additional Subordinate Judge in deciding the appeal before him, although he has not specifically mentioned or referred to the above decisions. The learned Judge committed no mistake in considering the facts and circumstances which went to show that the plaintiff''s case was not true and under the background of those circumstances, to consider the evidence adduced by the plaintiff 10 prove his case and on whom the onus admittedly lay. It is very important to note that in this case on 13-11-1961 the defendants filed a complaint, Ext. G, before the S. D. O., Sasaram, against Sital Singh Yadav, wherein, as rightly remarked by the learned Judge, strangely enough the selfsame pleas, as urged now in this case, were found that there was a panchayati for the purpose of settling the dispute with Jagarnath, brother of defendant 1, regarding ghost matter and in that Sital obtained the left thumb impression of both the parties on blank sheet of paper assuring that the same will be returned after decision but that remained with Sital Singh Yadav. The hand note is alleged to have been executed on 28-2-1962 and the suit was instituted on 11-12-1962. It cannot be said, therefore, as rightly remark, ed by the learned Judge, that the defence which is taken now was anticipated about ten months be fore the institution of the suit. The learned Judge has mentioned many circumstances which go to show that the plaintiff''s case could not be true. It is not necessary to restate them here, because I entirely agree with his observations and with his findings of fact. The questions of fact which have been raised here have ail been considered by the court of appeal below in some shape or the other and it is not correct to say that they have been over-looked and after considering them the court of appeal below did not find it possible to accept the plaintiff''s case and to uphold the judgment and decree of the trial court. The learned Judge after a consideration of the evidence of both sides, facts and circumstances of the case and the reasonings of the trial court, held, in disagreement with the trial court, that the plaintiff had tailed to prove that the handnote in suit was executed by defendant 1 and that the consideration alleged was paid and, therefore, the handnote in suit was not genuine. The judgment under appeal is a proper judgment of reversal and there is no infirmity in it.

It is also well settled that where evidence on the issue of fact has been given by both the sides and the evidence is relevant to the issue, it is open to the Court, which is the final arbiter of fact, to come to a condusion either way and the High Court will not disturb the finding in second appeal.

For the reasons given above, the appeal, being concluded by findings of fact, fails, and is dismissed and the judgment and decree of the court of appeal below are affirmed; but, in the circumstances of the case, there will be no order for costs.