RAJA MANDAR Vs. REWAT MAHTO

JUDGEMENT

(1.) This is an appeal by the plaintiffs against an order of the District Judge of Monghyr, dated July 26, 1935, by which he dismissed the appeal of the appellants summarily under the provisions of Order XLI, Rule 11 of the Code of Civil Procedure. The plaintiffs had instituted their suit for recovery of the balance of unpaid purchase money due to them on account of a sale deed which they had executed in favour of the defendants on August 4, 1927, for a sum of Rs. 1,398. The case of the plaintiffs was that they received in cash a sum of Rs. 598 and the balance of Rs. 800 was left with the defendants to be paid to various creditors in stated amounts, out of which they alleged that the defendants had paid only a sum of Rs. 391 and the balance of Rs. 406 was never paid by them; hence the suit was instituted on April 16, 1934. The cause of action alleged in the suit was a decree which was passed against the plaintiffs, on April 4, 1933, when a certain creditor, who was riot paid in pursuance of the agreement by the defendants, instituted a suit and obtained a decree against the plaintiffs. The defence in the section was that nothing was due to the plaintiffs and that they had carried out the terms of their agreement by paying off a part of the sum of Rs. 800 in the manner agreed upon and that after paying off the admitted sums to some of the creditors a sum of Rs. 415-8-6 had been paid by them to the plaintiffs had to hand at an unnamed rate.--(See Paragraphs. 5, 6 of the written statement). The defence principally relied upon a document which is sometimes called a chitha and sometimes a hand-note bearing date the 23 Assin 1339, that is to say, about five years after the sale. Relying upon this document the defendants asserted: That although the sums due to Narsingh Prasad arid to Raja Sahib (two of the creditors) have been paid by defendants in cash to the plaintiffs for payment to the aforesaid creditors, but as the money paid by defendants to plaintiffs before for payment to Narsingh Prasad has been spent by plaintiffs in other ways and that as Narsingh Prasad plaintiff's creditor had sued him for the dues of the mortgage, the sum of Rs. 233 was being borrowed by plaintiffs to pay their mortgagee Narsingh Prasad.

(2.) The plaintiffs case regarding this document was that they never signed this with these recitals but that they signed a certain blank paper in 1341. The learned Munsif did not believe the oral evidence, of either side; and had the case rested there, he states that he would not have believed the plea of payment which was being put forward by the defendants: but he proceeded to examine the evidence given by the plaintiffs as if the onus of payment was on them and in view of certain contradictions in the evidence of plaintiff No. 1 he came to the conclusion that: It was impossible to hold on the evidence adduced on the plaintiffs side that the chitha Ex-A was meant to be a Bai Rayananama and that the plaintiff No. 1 pat his signature and wrote the execution portion on a blank paper.

(3.) The learned Munsif then drew an inference from the fact that although the defendants had admittedly paid some of the creditors out of the money left with the vendees and had obtained receipts, the plaintiffs were still issuing notices to the defendants in 1934 for the recovery of even those sums of money, concluding that the plaintiffs were evidently trying to fabricate a case of money of the kibala being due to them from the defendants for a long time; but the learned Munsif did not find that the plaintiffs at the dates of the notices knew of these now admitted payments. Upon this view of the matter the learned Munsif gave a a finding in these words: Believing the evidence on the defendants side and disbelieving the evidence on the plaintiffs side. I hold that the sum of Rs. 406 has been paid by the defendants to plaintiffs soon after the kebala.