A finding of a court based on a mere comparison of signatures by the court itself is not a legal finding and is not binding in second appeal.

Raj Kishore Prasad, J.

1. This appeal, by the plaintiff, Tilakdhari Bhagat, is from the concurrent decisions of the courts below, dismissing his suit for setting aside the compromise decree, exhibit B, on the ground of fraud.

2. The sole question for determination, in the present appeal, is whether the grievance of the appellant that the finding of the court of appeal below that the compromise, exhibit B, was signed by the present plaintiff, then defendant 2 to the previous suit, is really based on a mere comparison of the signature of the plaintiff by the court itself and has been largely and mainly influenced by its own opinion, and, as such, it is not a legal finding which is binding in second appeal, is correct.

3. In order to determine this question, it is necessary to state briefly the material facts of the case having bearing on this question.

4. On the 20th October, 1950, the present plaintiff and his brother, Dhora Bhagat, defendant 2, are alleged to have jointly executed a handnote for Rs. 401, in favour of defendant 1, in lieu of an unpaid price of a bullock, alleged to have been purchased by Dhora, defendant 2, from defendant 1, because, the case of defendant 1, was that they were members of a joint Mitakshara family.

5. It will appear from the order-sheet of the previous suit, exhibit 14, that defendant 1, as plaintiff, brought a Money suit of the 17th December 1951, Money suit 339 of 1.951 in the court of the Munsif of Gopalganj, on the basis of the aforesaid handnote against Dhora Bhagat and his brother, the present plaintiff. In that suit Dhora Bhagat was defendant 1, and the present plaintiff was defendant 2.

6. The plaint of Money suit 339 of 1951 was filed and admitted on the 17th December 1931, and summons was ordered to be issued against the defendants of that suit fixing the 15th February 1952 for settlement of issued. Before the date fixed in that suit, on the 28th January, 1952, a petition of compromise, exhibit B, alleged to have been entered into between the parties to that suit on the 25th January 1952 was filed in court, on which the court ordered it to be put up on the date fixed. On the 16th February, 1952, the compromise petition was put up and the court ordered that the suit be decreed in terms of the compromise and that the compromise be recorded. On the 19th February, 1952, a decree was drawn up in terms of the compromise, and this is the compromise which was challenged in the present suit ay forged and fabricated.

7. The trial Judge, who decided the present suit, dismissed the plaintiffs suit, because he found that the handnote in question was not forged and that the impugned compromise was properly entered into by the plaintiff in the previous money suit.

8. The plaintiff, thereafter, took the matter in appeal to the court of appeal below. The learned Additional Subordinate Judge, who heard and decided the appeal, affirmed the judgment of the first court, but on many points he disagreed with the findings of the first court and recorded his own findings to the contrary.

9. The learned Judge, of the court of appeal below, held :

1. That the case of defendant 1 that the plaintiff and his brother, defendant 2, were joint, is false, because the plaintiff and defendant 2, lived separately and, at the date of the alleged handnote, that is, the 26th Kuar 1358 Fasli corresponding to the 20th October 1950, they were separate from each other, and, therefore, it was improbable that the plaintiff and defendant 3, would jointly purchase a bullock from defendant 1, and, would jointly execute a handnote in his favour.

2. That defendant 2, Dhora Bhagat, had no lands to cultivate, for which he would have the necessity of purchasing a bullock, and, therefore, this also makes the execution of a joint handnote by defendant 2 and the plaintiff in favour of defendant 1 for an unpaid portion of the price of a bullock improbable.

3. That the evidence of the handwriting expert, D.W. 1, on the point of movemen