The burden of proof lies with the plaintiff to establish the existence of a loan and the authenticity of the hand note, which was not proven in this case.

The final argument in this appeal was heard on 8.4.2024 and the case was reserved for order.

2. This first appeal under Section 96 of the CPC has been filed against the judgment and decree dated 7th July 2003 passed by learned Additional District Judge, Khurai, district Sagar in Civil Suit No. 4-B of 2000 (Deshraj Bilgaiya Vs. Shivraj Singh).

3. In very brief the plaintiff – appellant filed a civil suit against the defendant – Shivraj for recovery of an amount of Rs. 1,00,000/-.

4. It was not disputed between the parties that both the parties new each other.

5. The suit of the plaintiff was filed on the ground that on the request of the defendant on 16.9.1997 an amount of Rs.1,00,000/- was given as loan @ 2% interest per 100/- per month and a hand note was written. It was further submitted that inspite of many oral request to return the money, it was not returned. Then on 31.7.2000 a written communication was issued, which was not replied, hence this suit for recovery of Rs.1,00,000/- alongwith 12% interest per annum was filed.

6. The defendant denied all the averments and submitted that he did not take any amount as loan neither he signed the hand note for the said purpose. The said hand note does not bear the signature of the defendant and due to enmity, this case has been filed. The head note does have any revenue stamp affixed on it.

7. The trial court framed the following issues :- Sr. N. I S S U E SFindings

1. Whether plaintiff had taken rupees one lac as loan from the defendant? No.

2. Whether the plaintiff did not return the said amount with interest to the defendant inspite of oral and written intimation? Loan is not proved therefore no question to return the money.

3. Whether defendant will return the amount of Rs.1,00,000/- with interest of 12% per annum till the date of return to the defendant? No.

4. Relief of expenses? Expenses of suit rejected.

8. Perused the record.

9. In the trial court Deshraj (PW-1) has examined himself and stated his case as per plaint but it has been observed by the learned trial Court in Para -

7 that although stamp paper of hand note is in the name of Shivraj Singh but it does not bear signature of the defendant-Shivraj. Now this aspect is a big setback to the case of the plaintiff. Another problem in the case of the appellant is that he did not produce the original hand note Ex.P-1 but took permission of the Court and produced photocopy as a secondary evidence. No hand written expert has been examined by the plaintiff and belatedly filed the application to get the said document examined by Hand Writing Expert and give report which was rejected by the trial court due to delay but the Court being expert of experts examined the documents and the court opined that admitted signatures of Shivraj Singh do not match with the signature on Ex. P-1 document regarding taking of loan.

10. Another setback to the case of the appellant is that this document has been written by one Raghuweer (PW-2) who is said to be as a Painter, who was painting the house of the plaintiff. The trial court has not believed his evidence for the reasons given in the judgment which need not be repeated again. This Court is also of the view that a Painter who is painting the house of the plaintiff will suddenly write a document in favour of plaintiff is something which in the facts and circumstances of the case is hard to believe.

11. Another important fact as observed by the trial court in Para-9 is that no period is prescribed for returning the money. Now again this is not a normal practice. Some period is given in such type of document so as to calculate the period of limitation to file suit if required. Otherwise if no limitation is given, the defendant would always be at liberty to say that this is a pre mature suit and cause of action has not arisen. Although as per para-12 on the basis of pleadings and evidence it has been observed by the trial court that earlier there were some loan transactions between the parties but the q