1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil First Appeal No.32/1989 (Tirth Ram Versus Prakash Chandra) Date of Judgment :: 4th February, 2009 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. R.P. Singh for the appellant Mr. Amit Gupta for the respondent BY THE COURT: This regular first appeal under Section 96 of the Code of Civil Procedure on behalf of the plaintiff-appellant is directed against the impugned judgment and decree dated 13th January, 1989 passed by the Additional District & Sessions Judge, Kishangarh Bas, District Alwar, whereby the trial court has dismissed the suit of the plaintiff for recovery of a sum of Rs. 29,920/-. 2. The material facts of the case, in brief, are that plaintiff filed a suit for recovery in the trial court against defendant- respondent for a sum of Rs. 29,920/- pleading therein that plaintiff and defendant, both, are real brothers. The defendant had taken a loan of Rs. 22,000/- from plaintiff on 1st October, 1982 and executed a promissory-note and receipt, but he failed to pay the amount, 2 therefore, it became necessary to file the present suit for recovery of a sum of Rs. 22,000/- as original amount and Rs. 7920/- towards the interest; thus total amount of Rs. 29,920/-. The defendant denied the contents of the plaint and pleaded in the written statement that the defendant did not execute the disputed promissory note and receipt. It was further pleaded that plaintiff was neither in a position to give the loan of a sum of Rs. 22,000/- nor the same was given to the defendant. 3. On the basis of the pleadings of the parties, the trial court framed four issues on 2nd April, 1986 which are reproduced in the impugned judgment passed by the trial court. The plaintiff examined PW-1 Tirth Ram, PW-2 Darshan Kumar, PW-3 Deewan Chandra and produced the documentary evidence. The defendant examined DW-1 Prakash Chandra, DW-2 Chaman Lal. The trial court, after considering the submissions of learned counsel for both the parties and examining the record, decided issue no.1 against the plaintiff and consequently dismissed the suit. 4. The learned counsel for the appellant contended that plaintiff and defendant, both, 3 are brothers. There was a family settlement on 1st October, 1982 and a sum of Rs. 22,000/- was to be paid by the defendant to the plaintiff, therefore, the defendant had executed a promissory note and receipt in favour of the plaintiff. The said promissory note and receipt were scribed by PW-3 Deewan Chandra, the third brother of parties. However, he did not support the plaintiff's case only on the ground that the relations were not good subsequently in between them. He further contended that from the statement of PW-1 Teerth Ram itself the execution of promissory note and receipt was proved and there was no reason for not believing the statement of PW-1 Teerth Ram and trial court committed an illegality in deciding issue no.1 against the plaintiff, therefore, the judgment of trial court be set-aside and suit of plaintiff be decreed. 5. Per-contra, the learned counsel for the respondent supported the impugned judgment passed by the trial court and contended that Ex. P-1 and P-2, promissory note and receipt, both, were scribed by PW-3 Deewan Chandra, but in his statement before the court he specifically stated that he was not scribe of the documents. So far as PW-2 Darshan Kumar is 4 concerned, the trial court has rightly recorded a finding after considering his submission that he is only a chance witness. PW-1 has supported the execution of Ex. P-1 and P-2, whereas DW-1 defendant has denied the same. The independent witness as well as scribe of Ex. P-1 and P-2, both, have not corroborated the statement of PW-1 Teerth Ram, therefore, there is no illegality in the finding of the trial court in respect of issue no.1 and as such it is not a fit case for interference by this Court in the said finding. 6. I have considered the submissions of learned counsel for both the parties in the light of finding as well as available record of the trial court. The relevant issue in the present case is issue no.1 as to whether the plaintiff had given a loan of Rs. 22,000/- to defendant on 1st October, 1982 after executing the pro-note and receipt by defendant. The pro- note and receipt have been placed on record and they have been marked as Ex. P-1 and Ex.P-2. As per plaintiff's case the scribe to the Ex. P-1 and P-2 is PW-3 Deewan Chandra, who refused having scribe the same in the Court. There is another witness i.e. PW-2 Darshan Kumar, but after scrutiny of his statement, it appears 5 that he was only a chance witness and there was no reason for getting his signature on promissory note and receipt Ex. P-1 and Ex. P- 2. So far as statement of PW-1 Teerth Ram and statement of DW-1 Prakash Chandra are concerned, Pw-1 says that he gave the loan to the defendant-Prakash Chandra, whereas DW-1 Prakash Chandra has stated that he has not taken any loan from the plaintiff. The trial court, after considering and examining the statement of parties as well as relevant record, has recorded a finding that neither any loan was paid by the plaintiff to defendant nor the promissory note and receipt were executed. 7. In addition to above evidence of the parties, the trial court has also tallied the signature of defendant on promissory note Ex. P-1 receipt Ex. P-2 from his admitted signatures on the written statement, his vakaltnama etc. and thereafter has recorded a finding that the same does not tally with the admitted signatures. The reasons for it, have also been assigned while recording finding in respect of issue no.1. The reasons assigned in this regard appear to be perfectly justified. In these circumstances, I do not find any illegality or perversity in the finding of the 6 learned trial court in respect of issue no.1, therefore, I do not find any ground to interfere in the said finding. The learned trial court has rightly dismissed the suit of the plaintiff. 7. In view of above discussion, I do not find any merit in this appeal and the same is, accordingly, dismissed with no order as to costs. (NARENDRA KUMAR JAIN),J. DK