P.K. Lohra, J. - (1.) Appellant-Bank has laid this first appeal to challenge the impugned judgment and decree dated 19th of July, 1991, passed by District Judge, Banswara (for short, 'learned trial Court'), whereby learned trial Court has dismissed suit of the Bank for recovery of a sum of Rs.41,668.25.
(2.) In the plaint, it is, inter alia, averred by the appellant-Bank that father of respondents No.1 to 8, Shri Kalyan Singh, was sanctioned and disbursed a loan worth Rs.37,100/- for purchasing a tractor and, at the time of disbursement of loan, Kalyan Singh mortgaged agricultural land measuring 181 bighas and 17 biswas situated at village Bhukhiya and a document of simple mortgage was executed by Kalyan Singh on 29th of May, 1972 in favour of Bank. The requisite documentation, as per the appellant-Bank, was also done by Kalyan Singh for hypothecation of agriculture machinery, tractor. A specific case is set out in the plaint that after obtaining loan, Kalyan Singh passed away, and therefore, his legal representatives, i.e., respondents No.1 to 8 have been arrayed as defendants for recovery of loan amount with interest. On 3rd of May, 1983, when the suit was filed, the total outstanding amount was worked out as Rs.41,668.25. In the plaint, respondent No.9, Moti Singh was also arrayed as defendant being guarantor in this transaction.
(3.) Respondents No.1 to 8 contested the suit and denied all the averments of the plaint. The factum of obtaining loan by their father and execution of simple mortgage and other documents was disputed by the respondents. A specific plea is raised in the written statement that suit has not been filed in accordance with Section 34 of CPC, and therefore, merits dismissal. Jurisdiction of Civil Court is also questioned by taking shelter of Rajasthan Agricultural Credit Operation (Removal of Difficulties) Act, 1974. As none appeared for ninth respondent-guarantor, therefore, Court proceeded ex-parte against him. The learned trial Court, on the basis of pleadings of rival parties, framed nine issues for determination. Appellant-Bank, in order to prove the averments contained in plaint, examined two witnesses, namely, P.W.1 Madhusudan Bhatt, and P.W.2 Surendra Lal Malot. That apart, in all, fourteen documents were produced, which were exhibited. No evidence is tendered by the respondents.;