1. Defendant No. 2 was given a license to carry on the liquor shop at Kharkala Tahsil Harsud for the year 1920-1921. Under the berms of the license, he had to pay Rs. 108 per month to Government as license-fee and Defendant No. 1 stool as his surety for punctual payment of this sum. As Defendant No. 2 failed to make punctual pay men be, Defendant No. 1 moved the Government to remove Defendant No. 2 and to permit him to carry on the liquor shop for the remaining term of the license, and the Government did accordingly. However, as plaintiff was related to Defendant No. 2, it was agreed between the parties that Defendant No. 1 should permit Defendant No. 2 to carry on the liquor shop and that plaintiff should be responsible for payment of Government demand if Defendant No. 2 failed to pay it in time. It was farther agreed between the parties that if plaintiff paid the Government demand, Defendant No. 1 should recover it from Defendant No. 2 and pay it to the plaintiff. Plaintiff alleged that he paid the kist for January 1921, viz., Rs. 108, on 24th January 1921 and he brought a suit for recovery of this sum together with interest thereon at Rs. 2 per cent, per mensem from both the defendants on the allegation that although Defendant No. 1 recovered that kist from Defendant No. 2 he failed to pay the same to him (plaintiff).
2. Defendant No. 1 admitted that plaintiff paid the kist of January 1921 but pleaded that the money so paid by plaintiff was not plaintiff's money but his own money.
3. He also alleged having paid the kists of February and March 1921 and he claimed from the plaintiff the money paid by hind for the kists of January, February and March 1921 after giving him deduction for Rs. 55-9-6 on account of certain articles received from him.
4. Plaintiff alleged in reply that he had Paid the Mat for January 1921 out of his own pocket. He denied that the money so paid by him was Defendant No. 1's money. He admitted that Defendant No. 1 had paid the kists for February and March 1921, but denied his liability to pay the same on the ground that Defendant No. 1 forcibly took possession of the liquor shop from Defendant No. 2, and did not allow the latter to carry on the shop. He also brought a separate suit against Defendant No. 1 for Rs. 65-4-0 on account of the price of certain articles taken from him by Defendant No. 1 plus interest thereon at Rs. 2 per cent, per mensem (Suit No. 1286 of 1921 in the Court of Small Causes, Khandwa, decided on 9th September 1924).
5. The Small Cause Court held that Defendant No. 1 and not the plaintiff had paid the kist for January 1921. Accordingly it dismissed plaintiff's claim and gave Defendant No. 1 a decree for Rs. 335-14-0 against the plaintiff after allowing the latter deduction for the price of articles taken by the former from the latter and dismissed plaintiff's Suit No. 1286 of 1924 as well. Plaintiff has now come up in revision.
6. It is urged on behalf of the plaintiff that the Small Cause Court was wrong in holding that Defendant No. 1 had proved that the money paid for the January kist of 1921 was his money. In my opinion, this contention is sound and must prevail. The kist for January 1921 was admittedly paid into the Government Treasury by the plaintiff and the Treasury Officer passed a receipt for the same in his favour and he has filed it in Court (Ex. P-1). Under these circumstances, the onus lay heavily on Defendant No. I to prove that it was his (Defendant No. 1's) money which plaintiff paid into, the Treasury. In order to discharge this onus, Defendant No. 1 examined him self and filed a copy of an entry in his account-books. His evidence does not prove that he or somebody else on his behalf handed over Rs. 108 to plaintiff for payment of the kist of January 1921 into the Treasury. He deposes as follows:
“The sum of Rs. 109-1-0 (i.e Rs. 108 for kist, Re. 1 for warrant and anna 1 on account of writing fee for the treasury challan) was paid by my agent to plaintiff and not by me. I had instructed him to do so. I cannot say whether I was present when he paid the money.”
7. In other words, he is not prepared to swear that the sum of Rs. 109-1-0 was paid by his agent to the plaintiff in his presence. He has not examined his agent to prove payment of money to the plaintiff. He has no doubt filed copy of the entry in his books of accounts in regard to payment of this sum to the plaintiff. But the entry is not in his handwriting and he has no personal knowledge of the transaction to which the entry relates. In omer words, the entry has not been proved. Mere entries in books of account are not by themselves sufficient to charge any person with liability (vide Section 34 of the Evidence Act). The reason is that man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of third parties. There must be independent evidence of the transaction to which the entries relate and as no such evidence has been adduced in this case the Court below was wrong in holding that Defendant No. 1 had paid money to plaintiff for payment of the kist for January 1921. Plaintiff's claim for that kist should have been decreed against Defendant No. 1 as it is admitted that he had realized the amount due for that kist from Defendant No. 2 and was liable under an agreement between the parties to pay that amount to the plaintiff.
8. It is contended that the fact that Defendant No. 2 paid the January kist to Defendant No. 1 shows that Defendant No. 1 must have paid money for payment of that kist into the treasury to the plaintiff. This inference is wholly fallacious. Defendant No. 1 may have falsely represent to Defendant No. 2 that he had paid the kist for January 1921 and may have thus recovered the amount of that kist, from Defendant No. 2. The Court below was clearly wrong in acting on such an inference only when it had no independent proof of payment before it.
9. It is next urged on behalf of the plaintiff that the lower Court should have dismissed Defendant No. 1's claim for the kist of February 1921 as it was barred by time on the date on which he filed his written statement claiming that sum think this contention is sound and must prevail. The case of Prage Lal v. Maxwell(1) On which reliance has been placed on behalf of Defendant No. 1 was a case of an equitable set-off and is clearly distinguishable from the present case. In this case it must be remembered that Defendant No. 1 claimed set-off not morely as a ground of defence. His defence that he and not the plaintiff had really paid the January kist was, if proved, a sufficient defence to defeat plaintiff's claim. But instead of resting satisfied with ttis defence, he counter-claimed for the kists of January, February and March 1921. Even if the claim for January kist be treated as a defence in the alternative, that for the February and March kists can in no sense be treated as a defence, and limitation in regard to the recovery of the latter two kists must be determined by reference to the date on wbibh Defendant No. 1 preferred his counter claim and not the date on which plaintiff instituted his suit. According to this view his claim for recovery of the February kist, which he paid on 21st February 1921, and for which he preferred his claim on 18th March 1921, must stand dismissed. His claim for recovery of the January kist fails because I have held that plaintiff and not he (Defendant No. 1) paid that kist. The claim for recovery of the March kist, which was paid by Defendant No. 1 on 31st March 1921, is within time and must be allowed.
10. The amount due to plaintiff for the January kist of 1921 plus interest thereon at Rs. 2 per cent, per mensem comes to Rs. 185-12-0 and that due to Defendant No. 1 for the March kist of 1921 plus interest thereon at Rs. 2 per cent, per mensem comes to Rs. 185-13-8. Defendant No. 1 is, therefore, entitled to a decree for Re. 0-1-8 only against the plaintiff. The decree of the lower Court is therefore modified by substituting Re. 0-1-8 for the sum decreed by that Court in favour of Defendant No. 1. Parties will share costs of both Courts in proportion to their success, plaintiff's claim in Suit No. 1286 of 1923 has not been disputed before me by Defendant No. 1. The decree of the Court below in that suit is reversed, and it is hereby decreed that Defendant No. 1 do pay Rs. 88-12-0 to the plaintiff and bear costs of both Courts.
11. Decree modified.