GANGADHAR RAMNATH AGARWALA Vs. RAMPRASAD SAKHARAM SATNAMI

JUDGEMENT

(1.) MR . G.R. Deo, Advocate, who appears for the applicant-plaintiff argued this revision at great length, impeaching all the findings which to my mind are pure findings of fact. His excuse for' doing so was that the approach of the lower Court to the evidence on record and particularly to the evidence of Dwarkaprasad (P.W. 1) was vitiated owing to the adverse inference illegally drawn against the plaintiff for the alleged refusal of the witness (P.W. 1) to take special oath offered to him. It was contended that the offer of special oath was not actually put to Dwarkaprasad and his explanation in that respect was not asked. The lower Court baa no doubt acted very carelessly in this matter and the statement of the plaintiff's counsel recorded by it is almost meaningless. On reading the entire judgment of the lower Court, I do not however see that this has materially influenced the lower Court in its appreciation and estimate of the evidence on record.

(2.) THE defendant was an illiterate agriculturist of at best 18 years of age. He was a junior member of a joint Hindu family; his eldest brother was the manager. The plaintiff was the lambardar of the village and a money-lender too. His affairs were being managed by a competent person like Dwarkaprasad. The alleged transaction of advance of 10 khandis of dhan is alleged to have been entered into only with a junior member, ignoring the senior member and manager. This huge quantity of dhan is said to have been advanced in the month of December soon after the-usual time for reaping dhan crop. The document on which the thumb impression of the defendant is secured is unusually brief and is of a most informal kind. The alleged agreement to pay sawai and to repay the borrowed dhan with sawai within one year does not find place in the document. The plaintiff has not produced his account books though Dwarkaprasad (P.W. 1), no doubt with some hesitation admits that regular accounts were maintained--a fact which appears to me very natural. These are all circumstances which in my view require the plaintiff to give a very satisfactory proof of the alleged advance of dhan to the defendant.

(3.) THE second point argued was of limitation. The lower Court has not believed the evidence of the plaintiff's witnesses in so far as they deposed to an oral agreement to repay dhan in one year, inconsistently with the plaint allegation that it was agreed to be repaid on a particular date corresponding to 2-1-1942. The suit is instituted on 17-4-1944 i.e., more than 3 years after the alleged advance of dhan and a heavy burden lay on the plaintiff to prove the alleged agreement of repayment. It may be, that in view of the informal character of the document Ex. P-1, oral evidence to prove the alleged agreement may be admissible but the fact that it is not mentioned in Ex. P-1 is certainly a matter which would weigh with any Judge. The lower Court has given good reasons for not relying on the evidence of the plaintiff on this point. The lower Court found that the alleged agreement was not proved. This is a finding with which, sitting as a revisional Court I see no ground to interfere.