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Judgment
Dl and D2 are the appellants. The plaintiff is the transferee from D3 under a pronote dated 2-11-1968. D3 transferred the pronote in favour of the plaintiff for a sum of Rs. 4,352/-. The pronote amount under Ex.Al is Rs.3,900/-. The plaintiff claimed relief under Ex.A-1 by virtue of the transfer under Ex.A2 against Dl and D2 executants of the pronote and for an alternate relief against D3. The district Munsif dismissed the suit of the plaintiff against Dl and D2 and decreed the suit against D3. Aggrieved by the same the plaintiff filed an appeal seeking the decree against Dl and D2. The learned district Judge set aside the decree passed by the district Munsif against D3 though there was no appeal by D3, and decreed the suit against Dl and D2. Aggrieved by the same Dl and D2 filed the present appeal.
The facts in brief are as follows :
Defendants 1 and 2 borrowed an amount of Rs.3,900/- from the third defendant and executed a pronote on 2-11-1968 at Nuzvid and executed the suit pronote agreeing to pay the same with interest at 6% per annum. The third defendant transferred the said pronote in favour of the plaintiff for a sum of Rs.4,352/-on 6-10-70 as per the endorsement made on the reverse of the pronote. The plaintiff subsequently issued a notice to the 1st and 2nd defendants to pay the amount and the defendants.replied stating that the transfer is not supported by consideration and that they did not receive any consideration under the suit pronote and hence the suit pronote is not supported by consideration. On receipt of the reply the plaintiff informed the same to the third defendant and Gled the present suit and impleaded him as he is a necessary party to the suit. In this plaint he averred that in case the pronote becomes unenforceable against the 1st and 2nd defendants, the plaintiff is entitled to recover the suit amount from the third defendant with costs and interest.
The first defendant filed a written statement admitting execution of pronote for Rs.3,900/- but denying consideration. It is averred that the third defendant sold some lands in his estate to defendants 1 and 2 and their relatives and, on the abolition of the estates defendants I and 2 could not get pattas from the Government for the said lands and therefore, they approached the third defendant asking for his help and in that connection after paying Rs.740/- cash as part of sale consideration to him for the balance of the amount of Rs.3,900/- the suit pronote was executed, with an understanding that if the patta is granted by the Government the defendants 1 and 2 will have to pay Rs.3,900/ - in the absence of which the pronole get cancelled and that after the third defendant gave a letter in writing on 2-11-1968 undertaking to fulfil his obligation to secure pattas to the defendants 1 and 2. The scribe of the said letter is the clerk of the third defendant and it was duly signed by the third defendant. Unless paltas are granted by the settlement authorities the third defendant or his alleged transferee, and the plaintiff are not entitled to recover any amount under the pronote. No paltas are granted so far. Therefore, the claim under the said pronote is premature. Since the plaintiflTis not abona fide holder in due course the plaintiff cannot recover any amount from these defendants. The plaintiff who is inimically disposed towards these defendants conspired with the third defendant and brought the suit to harass these defendants. Therefore, the suit has to be dismissed with costs.
The third defendant filed a written statement admitting the plaint allegations but stated that the plaintiff is not entitled to decree as against him. He further staled that Defendants 1 and 2 already took cash of Rs.3,900/- from him and executed the pronote as they did not repay the same due to him in spite of demand (his defendant transferred the pronote for consideration in favour of the plaintiff and he denied executing any letter at any lime to the Defendants 1 and 2 on 2-11-68. The suit pronole is supported by consideration, the suit pronote is nothing to do with the enquiry for granting patta.
On the basis of the above averments the learned District Munsif framed the following issues:
(1) Whether the plaintiff is not a bona fide holder in due course?
(2) Whether the suit pronote is not supported by consideration and was executed in the manner and circumstances as alleged by Dl and D-2?
(3) Whether the plaintiff is not entitled to a decree against the 3rd defendant ?
(4) To what relief ?
On issue No.l the learned district Munsif held that the plaintiff is not a bona fide holder in due course. On issue No.2 he held that the suit pronote was not supported by consideration- On issue No.3 he held thai the plaintiff is entitled for a decree against the third defendant Holding as above he decreed the suit against the 3rd defendant, and dismissed the suit against the Defendants 1 and 2. On appeal the learned Subordinate Judge held that the plaintiff is a bona fide holder of the pronote in due course, and that it is supported by consideration and that Ex.Bl alleged to have been executed by the third defendant in favour of Dl and D2 is false and a brought up document by the Defendants 1 and 2 to avoid Iheir liability under Ex.Al. Hence Ex.Bl is to be discarded. Holding as abpve he decreed the suit against Defendants 1 and 2. While decreing the suit against Dl and D2, he set aside the decree passed against D3. Against which the present second appeal is filed.
The learned Counsel for the appellant raised the following contentions (1) The District Munsif has granted a decree against D3 and D3 has not filed any appeal against the said decree, hi the absence of an appeal by aggrieved party the learned Judge could not have set aside the decree granted by the District Munsif. Therefore, (he judgment of the learned Judge is contrary'' to law and liable to be set aside. (2) Ex.Bl isa document under which D3 has stated the circumstances under which Ex.Al pronote was executed by Dl and D2 in favour of D3. The learned Judge misconstrued the evidence while holding Ex.Bl is not true and genuine. Since under Ex.Bl, D3 agreed to get the pattas granted in the name of Dl and D2, since no pattas were granted to Dl and D2 the consideration under EX.a1 failed, therefore no decree could have been passed against Dl andD2, (3) The plaintilf having obtained decree against D3 he could not have filed an appeal against Dl and D2 on the basis of the same pronote as he cannot have two decrees on the same cause of action and for the same consideration from two sets of defendants.
While the learned Counsel for the respondent contended that this being the second appeal and since no substantial question of law is involved, this Court cannot interfere with the findings arrived at by the Subordinate Judge. He also pointed out that the learned Judge disbelieved Ex.Bl which according to the defendants was the document narrating the circumstances under which Ex.Al was executed. It is a finding of fact and hence this Court cannot interfere u/s 100 CPC- He also contended that Ex.Al is supported by consideration and that the respondent is entitled for a decree both against D3 as well as Dl and D2.
The first question that arises for consideration is whether the Subordinate Judge could have set aside the decree in the absence of an appeal filed by D3.
Evidently the District Munsif granted a decree in favour of the 1 st respondent against the 2nd respondent. He himself claimed in the plaint for a decree against 2nd respondent in the event of not granting a decree against the Appellants 1 and 2. On his own request the Court having found that Ex.Al executed by the appellant is not supported by consideration granted a decree against the 2nd respondent as he found that Ex.A2 under which the pronote was transferred to the respondent is supported by consideration. An appeal can be entertained only at the instance of aggrieved persons. When once an aggrieved person against whom a decree has been passed has not filed an appeal, the learned Subordinate Judge could not have set aside the decree. Therefore, to this extent the teamed Judge committed an illegality and hence the judgment of the learned Subordinate Judge is to be set aside and is accordingly set aside and the judgment of the District Munsif passed against D3 is restored.
The next question that arises for consideration is whether Ex. Al is supported by consideration. The argument of the learned Counsel for the respondent is that it is supported by consideration while the appellant contends that in view of Ex.Bl, Ex. Al is not supported by consideration. In order to establish that Ex.Al is not supported by consideration the appellant relied on Ex.Bl which is a letter executed by 2nd respondent. According to Ex,Bl the 2nd respondent sold the land to the appellants and the sale consideration for the land is Rs.4,640/- out of which 740/- was paid. For the balance the pronote was executed, for the reason that paltas were to be granted by the Government on the abolition of estates in respect of the land purchased. In case settlement officer does not grant pattas the pronote stands cancelled. In case the settlement officer grants pattas the appellants need to pay the amounts, in other words the pronote is to be discharged by payment of the balance of sale consideration. The learned Subordinate Judge disbelieved Ex_Bl on the ground that DW2 who was the scribe of the letter denied having written Ex.Bl. He disbelieved the opinion of hand writing expert on the ground thai it is only an opinion evidence and not binding. On comparison of the disputed signature he found that the signatures in Ex.Bl is not identical to the admitted signatures of the 2nd respondent. He also observed that there was no enquiry pending on the date ofEx.Bl with regard to issue of pattas as 2nd respondent granted pattas as early as in 1944 in favour of the appellants and therefore, there was no necessity for the 2nd respondent to execute Ex.Bl. He also observed that the appellants have not filed any petition for grant of patta before the Government and therefore no petition was pending before the Government.
If the finding that Ex.Bl is not genuine, arrived at by the learned Judge is supported by evidence then it being a finding of fact, this Court cannot interfere with the said finding. However, if the findings given by the learned Judge are not supported by the evidence, it is a finding arrived at without any evidence or on misconstruction of the evidence. In such an event it is open to this Court to interfere with the finding of the learned Judge. Let me now examine whether the reasoning adopted by the learned Judge is supported by the evidence. Taking the first ground that DW2 who is a scribe examined by the appellant has stated that he has not written Ex.Bl nor it was signed by D3. DW2 was declared as a hostile witness and he was cross-examined by Dl andD2, The learned Judge relied on the evidence of a hostile witnesses. As regards the opinion of the handwriting experts the learned Judge stated lhat it is only an opinion of the expert and therefore, not binding on him. It is true lhat the opinion of the handwriting expert is not binding on him and when there is no other evidence the evidence of hand writing expert is useful and when he was not subjected to cross-examined his opinion has greater weight. The hand writing expert categorically stated that the signature of Ex.Bl dated 2-9-1968 is made by Sri S. Apparao the second respondent The learned Judge is not justified in rejecting the expert opinion as to the signature of the 2nd respondent on Ex.Bl. The learned Judge also committed an error in holding that no enquiry is pending on the date of Ex.Bl with regard to issue of pattas as the 2nd respondent granted pattas as early as in 1944 in favour of appellants 1 and 2 and therefore, there was no necessity to the 2nd respondent to figure as witness during the enquiry to be held by Government- The learned Judge has overlooked the fact that the estates were abolished and paltas were to be granted under the Estates Abolition Act after holding an enquiry under the Act- The learned Judge failed to consider the evidence of Dl, the first appellant who stated that by the date of Ex.Bl, petitions were filed by him, and his father, were pending and they were not numbered. In olher words by the dateofEx.Bl the petition filed by the appellant for grant of pattas under the Estate Abolition Act were pending. Similarly the observation of the learned Judge that by the date of Ex,Bl no petition was filed by DW1 for issue of patta was pending with the Government is also a misconstruction of evidence.
From the above, it is clear that the finding of the learned Judge that Ex.Bl is false and brought up by appellants 1 and 2 is based on misconstruction of evidence on record. Therefore, the finding of the learned Judge is set aside.
It follows from the above thai Ex,Bl is genuine and proved. Since the appellants have admitted execution of the pronote and contended that it is not supported by consideration, !hat burden is on them to establish that it is not supported by consideration. The appellants have established that Ex.Bl is true and genuine. In other words they have discharged the burden placed on them; namely that the pronote is not supported by consideration.
The burden now shifts to the 1st respondent and 2nd respondent to establish that pallas were granted and therefore, the suit pronote is supported by consideration. However, no material is placed before me either by way of pleadings or evidence that infact pattas were granted to the appellants. In view of the above, the suit pronole is not supported by consideration. Hence there cannot be any decree against the appellants and the decree granted by the District Munsif is set aside.
The learned Counsel for the appellant also pointed out that the suit pronote was executed on 2-11 -1968 and the suit was filed on 2-11 -1971 and therefore, it is barred by limitation. However, there was no pleading to Uiis effect and there was no issue on the question of limitation but since it is for the Court to consider prima facie whether the suit is barred by limitation, the lower Court ought to have dismissed the suit on the ground that the suit is barred by limitation. Since the suit was filed on2-11-1971 beyond the period of three years the suit is barred by limitation. The next contention is that the appeal is not maintainable at the instance of the respondent as he cannot have two decrees against two separate and distinct persons on a single cause of action in the Court. The 1st respondent obtained a decree against the 2nd respondent. The cause of action for the decree is the endorsement of pronote under Ex. A2 in favour of the 1 st respondent by the 2nd respondent The fact that 2nd respondent received consideration under Ex.A2 is not disputed. Therefore, the 1st respondent is entitled for a decree as against 2nd respondent. But once he obtained a decree as against 2nd respondent he could not have filed an appeal for the same amount against the appellants even if the pronote Ex.Al is supported by consideratioa Therefore the appeal filed by him is not maintainable. The appeal is therefore, allowed and the decree of the Subordinate Judge against appellants is set aside with costs.