JAFAR BEG Vs. UJAGAR LAL

JUDGEMENT

(1.) This is a second appeal from the decree passed by the learned Subordinate Judge, Etawah, in a mortgage suit far sale. A preliminary decree was passed in favour of the plaintiff-respondent. Subsequently he applied for a final decree when the appellants objected alleging that the mortgage money had been satisfied partly by payment in cash, for which a receipt was passed and partly by execution of an unregistered bond or promissory note in favour of the mortgagee decree- holder. The decision of the case rested on proof of the appellant's allegations, which were denied by the mortgagee. The appellants examined a few witnesses and a handwriting expert in support of their case. The mortgagee also produced a handwriting expert, besides some other evidence. After discussing the evidence at some length, the lower appellate Court recorded the following finding on that part of the case: All things considered I am of opinion that the receipt produced by the appellant does not appear to have been given them by the respondent.

(2.) This is clearly a finding of fact and cannot be questioned in second appeal. The learned advocate for the appellants however contends that in so far as the relative weight of the opinions of the hand-writing experts was one of the questions in the lower Court, the finding is a mixed one of law and fact. Reliance is placed on Altafan V/s. Ibrahim 1924 All. 116, at pp. 814 and 815 (of 1923 A.L.J) in which a learned Judge of this Court had to consider the weight of expert medical witnesses in a case of judicial divorce under the Mahomedan law. It was observed: It is a finding based on examination and balancing of the opinions and views of experts or of the impressions produced on their minds by what they may have seen, heard, or observed, and as in the case of some specific evidence about custom, the sufficiency of the facts observed or of the inferences or opinions formed can always be examined to ascertain and determine their intrnsic value. The opinions of experts are relevant, but not conclusive as to the matters to which they relate, and where they materially differ, as in this instance, their value and sufficiency, may legitimately form the subject of consideration and scrutiny despite the acceptance of anyone of them by one Court or another.

(3.) This observation is valuable as indicating the considerations which should weigh, in judging the evidence of experts; but with all respect I am unable to agree that: value and sufficiency may legitimately form the subject of consideration and scrutiny. in a second appeal. The learned Judge refers, probably by way of analogy to the case of custom and assumes that it involves mixed question of law and fact. It has since been held by this Court that a finding on the question of custom is a finding of fact in so far as it records what happened and in so far as it gives weight to the opinion evidence. Moreover, the case before me is not one in which the finding is based solely on the conflicting evidence of experts. There is oral evidence, and an attempt was made by parties to corroborate or to contradict it. I am clearly of opinion that the finding in question is one of fact and cannot be considered in second appeal, which is dismissed under Order 41, Rule 11, Civil P.C.