Lord Sinha:-

This is an appeal from a judgment and decree of the Court of the Judicial Commissioner of the Central Provinces, which reversed a judgment and decree of the Subordinate Judge of Damoh in a suit which was filed on the 11th December 1916, in order to enforce a mortgage executed by the defendant on the 5th March 1913.

The case has been tried under peculiarly unsatisfactory circumstances. The plaint was registered on the 2nd January 1917. No written statement was filed, but only oral statements of the pleaders on both sides recorded, and issues were framed on these. The evidence was heard from time to time and at long intervals, and appears to have taken altogether a period of nearly three years. Judgment was pronounced by a Subordinate Judge who had not hoard any of the witnesses except two, and even of these one had been partly examined by his pre-decessor-in-office. The result is that in a case which entirely depends upon questions of fact, neither of the Courts dealing with the case had the benefit of seeing the witnesses and had to appreciate the evidence recorded by another Judge. Under these circumstances their Lordships are unable to attach the same importance as they otherwise would, to the findings of fact of the trial Court, and it is necessary that they should feel convinced that the judgment of the Judicial Commissioner under appeal is wrong before they can advise that it should be set aside.

The plaintiffs alleged that the defendant executed the mortgage in question after having received the sum of Rs. 7,000 in cash, and they prayed for the usual mortgage decree.

The defendant admitted the execution of the mortgage but denied that he had received the consideration alleged and also that he owed any money to or had received any money from the plaintiffs.

It is obvious that the onus of proving this defence lay on him, and lay heavily, seeing that it is inconsistent with his own admissions in writing hereafter referred to. It is necessary to scrutinize the defence story in detail and to see whether it is corroborated in every material part in such a way as to neutralize the effect of these admissions. For that purpose, such of the main facts as are not in dispute may be stated as follows:

The plaintiffs have their principal shop at Damoh, which is called "badi dukan." Rai Seth Sukhdeo was its munim. The plaintiffs had also a branch shop in the Mawganj quarter of that town, doing only grain business. It was usually called the "adat shop." In that shop the defendant's brother Gajadhar was the managing partner without any share in the capital. In the paki rokad (fair cash book) of the adat shop there are three debit entries in the handwriting of Gajadhar showing that the following sums had been advanced to the defendant on the dates mentioned against them:

(1) Rs. 2,600, dated 13th February, 1913.

(2) Rs. 3,400, dated 12th February, 1913.

(3) Rs. 1,000, dated 17th February, 1913.

Total Rs. 7,000

The sarkat or acknowledgment book of that shop contains acknowledgments of the defendant in his own handwriting purporting to have been written on these dates and admitting these loans.

The plaintiffs alleged that the defendant had borrowed from their badi dukan Rs. 7,000, and given the mortgage in suit in order to satisfy the debts due by him to the adat shop as evidenced by the above documents. What the defendant had to say with reference to these facts will be apparent from the following statement made for him by his pleader on the 5th December 1917: A few days before the execution of the bond in suit, Gajadhar had gone to Jubbulpore in connexion with the defendant's marriage. During his absence Rai Sahib Seth Sukhdeo found some money short in the adat shop and wired to Gajadhar to come back. When Gajadhar came he was threatened by Rai Sahib Sukhdeo with prosecution and arrest for the alleged defalcation. As Rai Sahib Suhkdeo holds the position of an Honorary Magistrate and is an influential man, and as Gajadhar was the only per