JUDGMENT :

A.K. RATH, J.

Defendant is the appellant against a confirming judgment.

2. Respondent as the plaintiff instituted a Money Suit No.20 of 1998 in the court of learned Civil Judge (Senior Division), Sonepur for realization of Rs.40,000/- from the defendant. Case of the plaintiff is that she was the registered owner of a trekker bearing Registration No.0R-15-0533. She wanted to sell the said trekker. The defendant agreed to purchase the same for a sum of Rs.85,000/-. On 10.3.1997 the defendant made a part payment of Rs.40,000/-to her. Thereafter, she delivered the possession of the vehicle to the defendant with a condition to pay the balance amount of Rs.45,000/-. The specific case of the plaintiff is that in spite of repeated request, the defendant paid only a sum of Rs.5,000/-. On 16.9.1997 the defendant executed a stamp paper agreement with a stipulation to pay the balance amount of Rs.40,000/- to her by 30.10.1997. But then the defendant did not pay the balance amount. She reported the matter at Boudh Police Station on 26.1.1998.

3. Pursuant to issuance of summons, the defendant entered appearance and filed a written statement contending inter alia that plaintiff was the benami purchaser of the trekker in question. Her son, Bidhan Chandra Panigrahi, was the real owner of the trekker. As the trekker was more than 20 years old and in bad condition, sale price was fixed at Rs.50,000/-. In pursuance of the contract between him and son of the plaintiff, he purchased the trekker at Rs.50,000/-. He made a part payment of Rs.45,000/-with an undertaking to pay the balance amount of Rs.5,000/-in the succeeding month. Bidhan Chandra Panigrahi after retaining the contract with him delivered the trekker to the defendant without connected documents i.e., the R.C. Book, route permit etc. He paid the balance amount of Rs.5,000/- on 25.4.1997 to Sri Bidhan Chandra Panigrahi. The defendant had specifically denied the assertion that there was a contract between the parties for purchase of the trekker at Rs.85,000/- and that the defendant had executed one stamp paper agreement.

4. On the basis of the inter se pleadings of the parties, the learned trial court framed six issues. To prove the case, the plaintiff had examined four witnesses and on her behalf, six documents were exhibited. The defendant himself was examined as D.W.1 and on his behalf, one document was exhibited. The suit was decreed. Assailing the judgment and decree passed by the learned trial court, the defendant filed R.F.A.No.41 of 2005 before the learned Additional District Judge, Sonepur. The same was eventually dismissed.

5. Heard Mr. Nayak, learned Advocate for the appellant.

6. Learned Advocate for the appellant submits that findings of the courts below are perverse. The courts below have not returned any finding as to whether Ext.1 is an agreement or contract. In absence of the same, the judgment is vitiated. He further submits that basing on the report of the handwriting expert, the courts below came to hold that the defendant has put his signature on Ext.1. Ext.1 does not contain the signature of any witnesses. There is no endorsement of the stamp vendor at the back side of the same. The same was not addressed to the plaintiff. The contents of Ext.1 have not been proved. The defendant adduced evidence to the effect that on 10.3.1997, he entered into an agreement with the son of the plaintiff to purchase the trakker for a consideration for Rs.50,000/- and paid a sum of Rs.45,000/-on the same day. The rest amount of Rs.5,000/-was paid on the next month as would be evident from Ext.A. Ext.A has not been disputed by the plaintiff. When the contents have not been proved by the plaintiff, it cannot be said that the same has been executed by the defendant. Ext.1 is not admissible in evidence.

7. Ext.1 was sent to the handwriting expert by the learned trial court for comparison of signature of the defendant, Ext.1/a with his admitted signature. The handwriting expert had submit