JUDGMENT : Deepak Maheshwari, J. This appeal has been preferred against the judgment and decree dated 29.01.1993 passed by learned District Judge, Balotra in Civil Original Case No. 15/1987 whereby, he dismissed the suit for recovery of Rs. 25,570/- filed by the plaintiff-appellant. 2. A suit was filed by plaintiff-appellant on 24.03.1987 stating therein that he and defendant-Devaram were partners in three firms which were carrying on business holding license for poppy husk and liquor. On 28.06.1983, defendant came to the house of plaintiff at Balotra and cleared the accounts of these firms upto the period 1983-84. Plaintiff had invested Rs.50,000/- in the business and a loss worth Rs.46,000/- came to his share. Defendant paid him Rs.4,000/- and a deed (Ex.1) was executed by him whereby, the plaintiff was ousted from the partnership business. It was also decided that the liability to pay any Government due, penalty, recovery, etc., would be of the defendant alone. Despite that, Excise Department issued notice to the plaintiff for realisation of the amount due. Plaintiff asked the defendant to deposit the said amount but he showed his inability then, the plaintiff deposited the amount of Rs. 21,990/- on four dates as mentioned in para-3 of the plaint. Defendant assured to pay the said amount back. He paid Rs.4,000/- on 10.11.1985 and Rs.1,000/- on 05.12.1985 but thereafter, no amount was paid back to the plaintiff. A registered notice was given by plaintiff to defendant on 23.02.1987 to pay him Rs.25,570/- including the interest and the expenses for notice etc. Since, the amount was not paid by the defendant, suit was filed for recovery of the said amount. 3. Defendant has denied the allegations made in the plaint by way of filing his written statement. It has been stated that no deed was executed between them to clear off the accounts of the firms and to undertake the liability by defendant alone. Any such deed, if any, might have been forged by the plaintiff. It has also been stated that besides plaintiff and defendant, Mohanlal Soni and Dharmaram Choudhary were also partners in the business. In absence of arraying them defendants in the suit, the same is not maintainable. It was also stated that the defendant never went to plaintiff's house at Balotra on 28.06.1983. No money was paid by him to the plaintiff on 10.11.1985 and 05.12.1985. In absence of arraying them defendants in the suit, the same is not maintainable. It was also stated that the defendant never went to plaintiff's house at Balotra on 28.06.1983. No money was paid by him to the plaintiff on 10.11.1985 and 05.12.1985. It was also stated that the plaintiff was maintaining the accounts of the partnership business and he used to deposit the entire amount of dues in Excise Department after realising the share from all the partners. The amount stated in para-3 of the plaint has been deposited by plaintiff only after collecting the same from different partners. It was also stated that a sum of Rs.24,000/- was given by defendant in presence of Mohanlal to the plaintiff on 20.03.1984 which he has not paid back and to grab the money, this false suit has been filed. 4. Plaintiff filed replica to the written statement stating therein that there were only two partners in the partnership firms. Defendant included Mohanlal and Dharmaram with him to the extent of the share limited to him. So far as the plaintiff is concerned, only the defendant was in partnership with him in the ratio of 50-50%. It has been stated that all the record relating to partnership firms was kept by defendant. He came along with Accountant of the firm Pannalal to plaintiff on 28.06.1983 and executed the deed (Ex.1). No amount was given by defendant or any other person to the plaintiff before he deposited the Government dues in the Excise Department as stated in para-3 of the plaint. He denied that Defendant ever gave him a sum of Rs.24,000/-. 5. On the pleadings of both the parties, as many as 9 issues were framed by learned trial Court which are as follows:- "(1) Whether, defendant executed a deed on 28.06.1983 whereby, the accounts of the partnership firm were cleared and liability to deposit Government dues, recovery and penalty etc. was owned by defendant alone ? (2) Whether, the plaintiff is entitled to realise the money as stated in plaint ? (3) Whether, the plaintiff deposited the amount in the Excise Department after collecting the money from the defendant and he is not entitled to any recovery of money from defendant now ? (4) Whether, Mohanlal Soni and Dharmaram Choudhary are necessary party ? (5) Whether, the defendant is entitled to realise a sum of Rs.1,000/- as special cost ? (3) Whether, the plaintiff deposited the amount in the Excise Department after collecting the money from the defendant and he is not entitled to any recovery of money from defendant now ? (4) Whether, Mohanlal Soni and Dharmaram Choudhary are necessary party ? (5) Whether, the defendant is entitled to realise a sum of Rs.1,000/- as special cost ? (6) Whether, the document dated 28.06.1983 is forged and is inadmissible in evidence ? (7) Whether, the suit is not within the jurisdiction of the Court ? (8) Whether, the suit is barred by time ? (9) Relief ?" 6. During trial, plaintiff examined himself as PW-1 and two other witnesses, namely PW-2 Madanlal and PW-3 Modaram were also examined. Besides defendant, DW-2 Mohanlal was also examined on his behalf. 7. After conclusion of the trial, learned trial Court decided issues No. 1, 2, 3, 6 and 7 against the plaintiff. In facts of the case, he did not decide issue No. 4. Issue No. 5 and 8 were decided in favour of the plaintiff. 8. During arguments, learned counsel for the appellant stated that the burden of proof in respect of issues No. 3 and 6 was on defendant and regarding Issue No. 1 was on plaintiff but, learned trial Court has erred in clubbing all these three issues and decided them jointly. It has also been argued that PW-2 Madanlal and PW-3 Modaram were important witnesses examined on behalf of the plaintiff but, no discussion has been made by learned trial Court in the impugned judgment in regard to the evidence adduced by them. They were important witnesses on the execution of Exhibit-1. Learned trial Court has committed a grave illegality in not considering their statements. Thus, the finding arrived at by learned trial Court on Issue No.1 suffers from material illegality, which was the vital issue. He has thus prayed that the impugned judgment and decree is liable to be quashed and set aside. 9. Nobody has appeared on behalf of the defendant-respondent to contest the appeal. 10. In light of the arguments advanced by the learned counsel for the appellant, I have scanned the judgment impugned dated 29.01.1993. He has thus prayed that the impugned judgment and decree is liable to be quashed and set aside. 9. Nobody has appeared on behalf of the defendant-respondent to contest the appeal. 10. In light of the arguments advanced by the learned counsel for the appellant, I have scanned the judgment impugned dated 29.01.1993. Following points of determination are framed as per Order 41, Rule 31 CPC to decide the appeal:- (1) Whether, in absence of consideration of evidence adduced by PW-2 Madanlal and PW-3 Modaram, the conclusion arrived at by learned trial Court on issue No.1 and 6 suffers from illegality and the same is liable to be quashed and set aside ? (Issue No. 2 & 3) (2) Whether, the learned trial Court has committed an error in not deciding Issue No. 4 regarding effect of non-joinder of necessary party, Mohanlal and Dharmaram ? (3) Whether, the Court below has wrongly dismissed the suit filed by the appellant-plaintiff for recovery of Rs.25,570/- ? 11. Insofar as first and foremost argument advanced by the learned counsel for the appellant, regarding non-consideration of important witnesses, PW-2 Madanlal and PW-3 Modaram, is concerned, it is found on perusal of the impugned judgment that no discussion has been made by the learned trial Court in regard to the evidence adduced by these two witnesses. 12. It is undisputed that these witnesses have been examined and the statements are available on record of the trial Court. As per the provisions contained in Rule 24 Order 41 of the Code of Civil Procedure, this Court deems it proper to consider the evidence of these two witnesses which is available on record. 13. PW-2 Madanlal has stated in his examination-in-chief that he signed on Ex.1 as a witnesses and defendant - Devaram singed on it in his presence. He has admitted in his cross-examination that Devaram was not known to him earlier but the persons present there were calling the person, who signed on Ex.1, as Devaram. He did not deny but simply showed his ignorance to the suggestion put to him that at the instance of plaintiff Bhojamal, one of the persons of his confidence was impersonated as Devaram and the deed (Ex.1) was forgedly got signed by him. It thus appears that the statement of PW-2 Madanlal does not prove the fact that the defendant - Devaram himself signed the deed (Ex.1). It thus appears that the statement of PW-2 Madanlal does not prove the fact that the defendant - Devaram himself signed the deed (Ex.1). Further, PW-2 has also admitted that he did not read Ex. 1 and did not know as to what was written therein. In light of these statements, the contents of deed (Ex. 1) do not stand proved. Thus, PW-2 Madanlal neither proves the execution of Ex.1 by Bhojamal nor its contents. 14. PW-3 Modaram has stated that he appended his signature on Ex.1 on being asked to do so by Bhojamal and Devaram. Though he has stated in his cross-examination that Devaram was known to him earlier also, yet he has also admitted that neither he himself read the document (Ex.1) nor anybody else read over the same to him. He has also stated that he did not remember whether, Devaram read Ex.1 before signing it or not ? Thus, on the basis of the statement of PW-3 Modaram, only it can be inferred that the document (Ex.1) was signed by Devaram but this fact does not stand proved that he read over the document prior to signing it or what were the contents of Ex.1. 15. In above background, statements of DW-1 Devaram are also important to be considered in this regard, who has denied to have gone to Balotra on 28.06.1983 where document (Ex.1) is said to have been executed by him. He has specifically denied to have executed any such document. 16. Learned trial Court has not relied upon the genuineness of document (Ex.1) on the ground that the circumstance in which, it is said to have been executed does not inspire confidence regarding execution of the same. It is to be noted in this regard that PW-1 Bhojamal and his witnesses PW-2 Madanlal and PW-3 Modaram have stated that death of Bhojamal's son took place on 25.06.1983. PW-2 and PW-3 went to offer their condolences on demise of his son to his house on 28.06.1983. It is the case pleaded by the plaintiff that defendant - Devaram also came to Balotra to offer his condolence. During the said visit, he got the deed (Ex.1) executed for clearing the account of partnership firms. PW-1 Bhojamal, during his cross-examination, has admitted that on third day of his son's death, Devaram came to Balotra. Plaintiff also called Inspector of Excise Department Mr. During the said visit, he got the deed (Ex.1) executed for clearing the account of partnership firms. PW-1 Bhojamal, during his cross-examination, has admitted that on third day of his son's death, Devaram came to Balotra. Plaintiff also called Inspector of Excise Department Mr. Puri there only and the accounts of the firms of partnership business were settled between plaintiff and defendant. On the same day, Ex.1 and Ex.10 were also executed by defendant to clear the accounts of the partnership firms and to owe the liabilities of the business by defendant alone thereafter. The inference drawn by the learned trial Court is that it seems quite improbable and unbelievable that just within three days of death of son of plaintiff, he would sit to settle the accounts of the partnership firms and would get the document Ex.1 and Ex.10 executed from defendant. Furthermore, this fact has also been considered by learned trial Court in reaching its conclusion that DW-1 Devaram has denied his signature on Ex.1 even on being shown in the pigeonhole during his cross-examination whereas, he has admitted his signatures on all other documents, namely, written statement, vakalatanama, affidavit etc. Taking all these facts into consideration, learned trial Court has arrived at the conclusion that the fact of execution of Ex.1 and signatures of Devaram at mark 'A' to 'B' on it do not appear reliable. I do not feel any hesitation in concurring with the conclusion arrived at by learned trial Court, after having considered the above-said circumstances. 17. In my considered opinion, it cannot be believed that on third day of death of his son, plaintiff would call the Inspector of Excise Department and will sit with defendant to clear off the accounts of the partnership business, who happened to visit his house for offering condolence. Evidence of PW-2 and PW-3 also, as discussed above, does not inspire confidence regarding execution of Ex. 1 and Ex. 10. DW-1, Devaram has categorically denied execution of deed Ex. 1 and Ex. 10. Plaintiff Bhojamal admits to maintain the cash book in his cross-examination, but has failed to produce it in evidence, by which it could have been proved that Rs.4,000/- was paid in cash to him by Devaram while clearing off the account of the partnership prior to execution of Ex. 1 and Ex. 10. 18. 1 and Ex. 10. Plaintiff Bhojamal admits to maintain the cash book in his cross-examination, but has failed to produce it in evidence, by which it could have been proved that Rs.4,000/- was paid in cash to him by Devaram while clearing off the account of the partnership prior to execution of Ex. 1 and Ex. 10. 18. It is also pertinent to note here that defendant has completely denied the execution of Ex.1 right from the beginning by filing the written statement. In this circumstance, burden of proof was upon plaintiff to prove that defendant has signed Ex.1 and executed the same. He should have proved this fact by getting the document (Ex.1) examined by hand-writing expert, but he has failed to do so. Pannalal has also not been examined by plaintiff in whose hand-writing Ex.10 is said to have been written. Thus, he has not made adequate attempt to discharge his burden of proof. 19. It is also pertinent to note here that in civil litigation, the conclusion is arrived at on the basis of preponderance of probabilities. The above-said circumstances in which, Ex.1 has been allegedly executed do not inspire confidence. 20. Thus despite having considered the statements of PW-2 and PW-3 in regard to execution of Ex. 1 and Ex. 10, I do not find any reason to set aside the conclusion arrived at by learned trial Court in this respect. So, the conclusion arrived at by learned trial Court with regard to Issues No. 1 and 6 is upheld. 21. The second point of determination framed for deciding the appeal is whether for non joinder of Dharmaram and Mohanlal, the suit is liable to be dismissed? 22. Learned trial Court has left issue number 4 undecided as other vital issues have been found proved against the plaintiff. But in my opinion, it was also an important issue requiring determination by the trial Court. Plaintiff Devaram has denied that Mohanlal and Dharmaram were also partners in their partnership firm. His Case is that only Devaram was partner with him who made Dharmaram and Mohanlal partners within the limits of his own share. He has thus admitted, though indirectly, that Dharmaram and Mohanlal were also involved in the said partnership business. DW-1 Devaram has specifically stated that Dharmaram and Mohanlal were also partners in their partnership firm. DW-2 Mohanlal has also stated the same fact. He has thus admitted, though indirectly, that Dharmaram and Mohanlal were also involved in the said partnership business. DW-1 Devaram has specifically stated that Dharmaram and Mohanlal were also partners in their partnership firm. DW-2 Mohanlal has also stated the same fact. It is an admitted case that there was no written partnership deed. In my opinion, defence evidence gets corroborated by the evidence of Bhojamal who has indirectly admitted that Dharmaram and Mohanlal were also made partners by Deva Ram in the partnership business. Bhojamal has filed the suit for recovery of the amount due on account of partnership business. In this situation, it was imperative for him to implead Dharmaram and Mohanlal also. Essentially they are necessary parties to the suit in absence of whom it suffers from the defect of non joinder of necessary parties. So instead of leaving this important issue undecided, learned Court below should have ordered to dismiss the suit on this count also. 23. Third point for determination in this appeal is whether plaintiff-appellant is entitled to recover a sum of Rs.25, 570/- from defendant. The case put-forth by plaintiff in this regard is that after execution of deed (Ex. 1), he was ousted from business of the partnership and liability to pay the Government dues in future was owned by defendant only. But Excise Department issued notice to him for realisation of the amount due towards the partnership business and he had to deposit the same as mentioned in para-3 of the plaint through challans (Ex. 2 to Ex. 5). DW-1 Deva Ram has denied this fact and stated that Bhojamal was a literate person and he used to maintain the accounts of the partnership business and to deposit the Government dues after collecting the share from each of the partners. The amount deposited by him was not his own but was collected from the remaining partners and so he is not entitled to recover the amount as stated. 24. As discussed above, execution of deed (Ex. 1) has not been found proved by which plaintiff had claimed to have been exonerated from the liability of partnership business. Therefore, whatever amount due towards this partnership business was deposited by the plaintiff in the Government account was the joint liability of all the partners, including the plaintiff. 24. As discussed above, execution of deed (Ex. 1) has not been found proved by which plaintiff had claimed to have been exonerated from the liability of partnership business. Therefore, whatever amount due towards this partnership business was deposited by the plaintiff in the Government account was the joint liability of all the partners, including the plaintiff. During currency of the partnership, plaintiff is not entitled to recover the said amount from other partners by filing this suit. Thus he cannot be held entitled to recover the amount from defendant and other partners, if any. Further, DW-1 and DW-2 have stated that the amount deposited by plaintiff in the Government account was collected by him from other partners in the ratio of their share. This evidence remains unrebutted by the plaintiff as he has failed to produce the cash book, admittedly, maintained by him. Failure to do so will certainly result in drawing an adverse inference against him. Consequently, plaintiff - appellant has failed to prove this issue in his favour. 25. Learned trial Court has also arrived at the same conclusion, but on different premise. The ground mentioned by learned trial Court is that after execution of Exhibit-1, it was not the liability of plaintiff to deposit the Government dues. Thus, it cannot be inferred that he deposited the same under compulsion and is entitled to recover the same. But looking to the evidence available on record, execution of Exhibit-1 has not been found proved and so the reason given by the Court below does not appeal to logic. However, on appreciation of evidence, the conclusion arrived at by Court below is found correct and, therefore, is liable to be upheld, though for different reason, as discussed above. 26. Resultantly, the findings arrived at by learned trial Court are found correct having been substantiated by the evidence available on record and are thus upheld. Appeal preferred by the plaintiff - appellant is found devoid of merit and is thus dismissed.