- (1.) THE plaintiffs, who are the appellants in this second appeal, raised their suit for the recovery of Rs. 2000/- on the basis of 'khata' Ex. 1 alleging that it was executed in their favour by the defendant on Mangsir Sudi 4, Svt. 2008, corresponding to December 2, 1951, after setting the account. According to the plaintiffs, if was provided in the 'khata' that 201 maunds of grain would be delivered by the defendant by Jeth Sudi 15, Svt. 2009 i. e. by June 8, 1952. It was claimed that the defendant delivered one maund of grain on Jeth Sudi 12, Svt. 2012 (June 2, 1955) and so the suit was filed on June 30, 1958, for the recovery of Rs. 2000/- after giving up the remaining claim. As the courts were closed during the summer vacation, the plaintiffs pleaded that the suit was within limitation on account of the part payment dated June 2, 1955. THE defendant denied the execution of the 'khata' and the alleged part payment. He also took the plea that the 'khata was without consideration. Issues were framed on October 16, 1958 on questions relating to the execution of the 'khata', the consideration, the alleged part payment, the rate of the grain and some other minor points of controversy. THE evidence of the parties was recorded on these issues. THE defendant then moved an application for leave to amend the written statement to raise the plea that the 'khata' had been altered in material particulars. THE application was allowed and an issue was framed on August 24, 1950, whether material alterations had been made in the 'khata'. THEreafter the case proceeded further and the Munsiff of Jaitaran, who tried the suit, reached the conclusion that the 'khata' had Deen executed by the defendant with consideration and that the defendant made part payment of the loan by delivering one maund of grain on Jeth Sudi 12, S. 2012, as claimed by the plaintiffs. THE other material finding of the Munsiff was that the Khata had been materially altered after its execution, to bring the suit within limitation, and he therefore dismissed it. On appeal, the learned Civil Judge of Sojat also held that the 'khata' had been materially altered and he therefore main-tained the trial court's decree by his judgment dated May 7, 1960. It is in these circumstances that the plaintiffs have preferred this second appeal.
(2.) THERE is: no controversy before me about the correctness of the findings regarding the execution of the 'khata' by the defendant, the consideration and the part payment of June 2, 1955. THERE is also no controversy about the price of the grain, or the quantum of the plaintiffs' claim. The only dispute is whether the 'khata' was materially altered without the knowledge or consent of the defendant, and it is admitted that the fate of the appeal will depend on a decision of this point alone. In order to appreciate the controversy, it would be desirable to reproduce the disputed 'khata' entry. It reads as follows - ½ ghlkc tksmu ckdh ys. kk /kku nks; lks ,sd e. k v[kjs ½ e. k idk rksy jks 2009 jk mukyh jh Hkknks lqnh rksdks yksvkesa rksy nslh g% [kqn 2009 jk tsb lqn 15 rkbz nslh%** Thereafter there is a revenue stamp over which the thumb mark of defendant has been affixed and then there is the verification by the scribe Tejraj to that effect. It is contended on behalf of the defendant respondent that while the words K muKyh jh HKKnKs lqnh rhdKs yKvKe rKsy nslh** Were written out originally in the 'Khata' as it stood on the date of its execution, the subsequent words K tsb lqn 15 rKbz nslh** marKed A to B, were added later on, surreptitiously, without the defendant's Knowledge or consent by collusion between the plaintiffs and the scribe and that this addition was material as it affected the period of limitation for the tiling of the suit and so the whole decumbent was rendered void and could not sustain the plaintiffs' claim. The first question therefore is whether the alleged interlineation or addition of the words K tsb lqn 15 rKbz nslh** was made in the presence of the defendant and with his consent, at the time of the execution of the document, or whether it was made surreptitiously sometime later. It has been argued by Mr. Lodha, learned counsel for the plaintiffs-appellants, that the finding that the alteration was made later on, without the defendant's knowledge or consent, has been vitiated because the learned Judge of the lower appellate court has misread the statement of plaintiff Pannalal on an important point. The main reason why the learned Civil Judge disbelieved the plaintiffs' version was that whereas Tejraj P. W. 3, the scribe of the 'khata' had stated that the addition of the words K tsb lqn 15 rKbz nslh** was made before the defendant affixed his thumb-marK on the. document plaintiff Pannalal has stated this was done later on. The learned counsel has pointed out that plaintiff Pannalal did not say anything of the Kind because what he deposed was that he did not remember whether the addition was made before or after the defendant's thumb marK was affixed on the 'Khata'. This argument is quite correct and it is no doubt true that the learned Civil Judge has misread Pannalal's statement. His finding of fact cannot therefore bind this Court as the evidence has been misread on an important point. Moreover, a perusal of the impugned judgment shows that the learned Civil judge committed a serious error when he misread sec. 78 of the Marwar Tenancy Act, 1949, in holding that the period for the delivery of the grain was upto May 30, and that the period of 'lata' commenced from Chait Bad 30 or March 30th. The reasoning adopted by the learned Judge is quite meaningless. He lost sight of the fact that the parties were in agreement that they had contracted for the redelivery of the grain in the 'rabi' Tata' for which, according to the aforesaid sec. 78, the last date was May 30, or Jeth Sudi 15, whichever was later. So as the finding of fact has been vitiated by a misreading of Pannalal's statement and the provisions of sec. 78 of the Marwar Tenancy Act, 1949, it cannot be said to bind this Court and I am therefore driven to the necessity of reassessing the evidence myself. As has been stated, the point for decision is whether the words K tsb lqn 15 rKbz nslh** were added in the 'Khata' with the Knowledge and consent of the defendant at the time of its execution, or whether they were inserted later on. It is important to remember in this connection that the plaintiffs disclosed in para 1 of the plaint that the defendant had executed the 'Khata' on Mangsir Sud 4, Svt. 2008, and had undertaKen to deliver the grain by Jeth Sud 15, Svt. 2009, corresponding to June 8, 1952. The plaintiffs also produced the original 'Khata' along with the plaint. Its copy was compared with the original by a clerK of the court and was placed on the record. It was clearly brought out in that copy that the words
(3.) 2009 jk tsb lqn 15 rkbz nslh** occurred after the words G% [kqn**. The defendant therefore knew from the very beGinninG that the plaintiffs relied on his aGreement to deliver the Grain by Jeth Sudi 15, Svt 2009. Even then be did not take the plea in his written statement, which was filed by him with the help of his counsel, that the words had been added surreptitiously and vitiated the document. The written statement was filed on AuGust 27, 1958 and the issues were framed on October 16, 1958. The evidence of the plaintiffs was closed on December 19, 1958 and the defendant's evidence was practically over when he made an application on May 23, 1959 for leave to amend the written statement for the purpose of raisinG the plea that the words K tsb lqn 15 rKbz nslh** had been added without his Knowledge and consent and amounted to a material alteration of the document. This conduct of the defendant shows that plea of material alteration was taKen as a last resort and I have no doubt that it was an after thought. If this had not been so the defendant would have taKen the plea straight away when he filed the written statement. So far as the direct evidence is concerned, plaintiff Pannalal has clearly stated that the words K tsb lqn 15 rKbz nslh** were written with the defendant's consent, at the time of the execution of the document, although they were added after the 'Khata' had been written out by the scribe, as it was then that the defendant agreed to that clarification. Tejraj P. W. 3 was the scribe of the document and he has stated that the additional words in question were added by him before the defendant affixed his thumb marK on the document. Nothing has been elicited in the cross-examination of these two witnesses to shaKe their testimony. As a matter of fact the defendant has not stated in his own deposition that the words in question were added later on, without his Knowledge or consent, and he has not examined any other witness to rebut the evidence of the plaintiffs. It cannot therefore be held that the plaintiffs have not been able to prove that the words K tsb lqn 15 rKbz nslh** were added at the time of the execution of the 'Khata' and with the Knowledge and consent of the defendant. ;