KALIKUMAR PAL Vs. RAJKUMAR PAL

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of money due on a simple mortgage bond, dated 11 Agrahayan 1319 B. S., executed by defendant 1. The claim of the plaintiff in the suit was resisted by defendant 1 and it was pleaded by the defendant that there was a payment made of Rs. 150 to the plaintiff on 20 Chaitra 1326 B.S. On the pleadings before the Court, the first issue and the material question arising for consideration in the case was whether the plea of payment of Rs. 150, as alleged by the defendant, was true or not. The plea of payment as raised in the suit, based on an alleged admission of the plaintiff himself, was sought to be substantiated by the defendant by evidence adduced by him; and the material witnesses examined in this behalf were two in number, D. W s. 3 and 4. With reference to the first of these witnesses, witness 3, his deposition was to the effect that the plaintiff had on a previous occasion admitted the receipt of Rs. 150 from the defendant, in part payment of the mortgage debt. The most important evidence in the case in respect of this payment by defendant 1 was that afforded by the deposition of D. W. 4, Babu Harikrishna Bhatta, a pleader; and the statement that this pleader witness made before the Court in his deposition was this: The plaintiff and the defendant admitted to have received and paid respectively the same amount of money, Rs. 125 or Rs. 150, in connexion with payment due to the mortgage bond.

(2.) The witness added that the plaintiff and the defendant were present, but did not remember who else was present when the plaintiff admitted to have received the amount of Rs. 150. The witness further stated in his deposition before the Court, that the defendant approached him, and had informed him that the settlement of the debt due on the mortgage bond had not been effected. Upon this state of the evidence before the Court, the trial Court passed a decree in favour of the plaintiff, holding that the plea of payment of Rs. 150 had not been made out.

(3.) On appeal by defendant 1, the decision of the trial Court and the decree passed by that Court in favour of the plaintiff were reversed. The learned Subordinate Judge in the Court of appeal below allowed the appeal by defendant 1 in part. The decree of the Court of first instance was modified. The plaintiff's claim was reduced on the footing of the payment of Rs. 150, on 25 Chaitra 1326, as alleged by defendant 1; and the decree made by the Court below was for the sum found due with interest upon calculation as indicated in the judgment of the lower Court. The lower appellate Court has entirely relied upon the testimony of the two witnesses referred to above. According to the learned Subordinate Judge, the testimony of the witnesses could not be lightly discarded. It was held that the deposition of the two witnesses mentioned above supported the other evidence given by defendant 1, relating to the actual payment of Rs. 150 to the plaintiff; and the Court below has expressed the definite opinion that it could not but believe that the plaintiff did actually get Rs. 150 from defendant 1 in Chaitra 1326.