LAWS(P&H)-2005-7-5

RATTAN SINGH Vs. SAGARMAL

Decided On July 08, 2005
RATTAN SINGH Appellant
V/S
SAGARMAL Respondents

JUDGEMENT

(1.) This is plaintiffs appeal filed under Section 100 of the Code of the Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff-appellant has not been able to prove his bahi entries dated 5-6-1993 which had mentioned that the defendant-respondent had borrowed a sum of Rs. 1,25,000/- and Rs. 1,00,000/- from the plaintiff-appellant on 5-6-1993. The plea taken by the defendant- respondent was that he had not taken any amount from the plaintiff-appellant and therefore, the entries in his Bahi were fictitious. He also denied signing bahi entries by stating that at the time of agreement to sell his signatures on some blank papers were obtained. That agreement was executed by the father of the plaintiff-appellant with one Munshi Ram. The father of the appellant had assured the defendant-respondent that the blank papers were to be destroyed. His father died. However the plaintiff-appellant appears to have misused those papers. Both the Courts have found that the plaintiff-appellant has failed to prove the execution of writing Ex. P1 and Ex. P2 dated 5 -6-1993. The passing of consideration in favour of the defendant-respondent has also not been proved. The original bahi entries were not confronted to the witnesses at the time of their statement before the Court nor those Bahi entries were exhibited. The stand of the defendant-respondent has been duly supported by Ex. P5 which is a copy of sale deed dated 24-5-1993 showing that earlier there was an agreement between the father of the plaintiff-appellant and one Munshi Ram to sell the land as mentioned in the sale deeds. Writings are found to be manipulated and unenforceable in the eyes of law. In this regard it would be opposite to refer to the categorical findings as recorded by the learned District Judge Bhiwani. After detailed examination of the entire documentary and oral evidence, the District Judge has held as under :

(2.) Having heard the learned counsel and perusing the orders of both the Courts below, I am of the considered view that no interference of this Court would be warranted in the findings of fact recorded by the Courts below. It was the primary duty of the plaintiff-appellant to prove the advancement of loan, passing of consideration and other necessary factors. I am further of the view that the books of accounts may constitute relevant evidence under Section 34 of Evidence Act, 1872 (for brevity the 'Act'). Section 34 of the Act reads as under :

(3.) A perusal of Section 34 of the Act shows that entries in books of accounts are relevant if such books of accounts have been kept in 'regular course of business'. In the present case original books of accounts have never been produced. Only two pages of bahi entries Mark 'A' and Mark 'B' have been produced and that too show a cramped writr ing. In such a situation the first appellate Court has rightly placed reliance on the judgment of the Supreme Court in the case of Ishwar Dass Jain v. Sohan Lal, 2000 (1) SCC 434 : (AIR 2000 SC 426) and relevant observations of their Lordships read as under :