1 sa 1167.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1167 OF 2005 Vilas Mohanlal Joshi .. Appellant Versus Sheetal Shantilal Shingavi .. Respondent Shri Milind M. Patil (Beedkar), Advocate for the Appellant. Shri R. R. Imale, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 19TH APRIL, 2011. PER COURT : . This is plaintiff's second appeal. The plaintiff had filed a suit for recovery of Rs. 1,00,000/- on the ground that the plaintiff had advanced hand loan of Rs. 1,00,000/- to the defendant on 04.07.1974 and the defendant executed the document styled as Usanwarchithi (Exhibit 75). The Trial Court dismissed the suit. The plaintiff preferred an appeal. The Appellate Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. Aggrieved thereby the plaintiff has filed the present second appeal. 2 sa 1167.05 2. Shri M. M. Patil (Beedkar), the learned counsel for the appellant strenuously contended that the Courts below have perversely appreciated the evidence on record. The document at Exhibit 75 is self eloquent. As per Section 92 of the Indian Evidence Act no other evidence could have been led. The recitals of the document are unambiguous. Even the witness i. e. Dattatrayalal who has stepped into the witness box as attorney holder of the plaintiff and also who had the personal knowledge being present at the time of transaction has proved the advancement of the amount of Rs. 1,00,000/- to the defendant. Even P.W. 2 Datta had proved the presence of all the parties and that the defendant has executed the said document. The Courts below have improperly delt with the said evidence. 3. The learned counsel further contends that as against the documentary evidence which is proved by the oral evidence, the defendant did not led any such evidence to disprove the case of the plaintiff. The Courts relied on a blank document produced by the defendant and whose authenticity is not proved. Merely, on the basis of such document, the case of the plaintiff is negated. The evidence of expert is weak evidence and the Courts also have embarked upon comparing the signatures wherein at one place it 3 sa 1167.05 was found that there is some change. According to the learned counsel the plaintiff has proved the case even by preponderance of probabilities. 4. Shri Imale, the learned counsel for the respondent supported the judgment contending that both the Courts have concurrently on appreciation of evidence have come to the conclusion. Section 92 of the Evidence Act is subject to some exceptions, when the document and its contents were denied, the plaintiff is expected to prove the same. The witnesses of the plaintiff gave contradictory evidence which has been considered by both the Courts. 5. With the assistance of the learned counsel, I have gone through the judgment. No doubt, the civil suit has to be proved by preponderance of probabilities, but when the contents of the documents are denied, the same has to be strictly proved. The Courts have discussed anomalies in the deposition of the witness. The plaintiff himself did not step into the witness box, but examined his brother. The document Exhibit 75 did not show the presence of said Dattatrayalal. It is also not the case of the plaintiff that Dattatrayalal advanced an amount of Rs. 4 sa 1167.05 1,00,000/-, but Dattatrayalal in his deposition stated that he had advanced Rs. 1,00,000/-. The deposition of Dattatrayalal is contrary to the said document. Whereas, the P.W. 2 deposed that the plaintiff and his brother paid an amount to the defendant. The same is also against the recitals of the document. Even P.W. 1 Dattatrayalal could not state properly the name of attesting witness. The defendant had produced on record the note books showing transaction of bhishi. 6. The Courts below on evaluation and appreciation of the evidence have concurrently held that the plaintiff could not prove that he had advanced an amount of Rs. 1,00,000/- to the defendant and have dismissed the suit. The view taken by the Courts below is a possible view. The second appeal being sans substantial question of law, as such is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11