1. It is argued that the lower Courts acted without jurisdiction in deciding this suit upon evidence after the plaintiff had agreed to abide by the 1st defendant's oath, and Anaikutti Ayyakznnu Nadar v. Muthiati Nadar 17 M.L.J. 9 is cited in support of his argument.
2. The circumstances of the present case are different. There was evidence on the record upon which the Courts in this case could and did adjudicate on the genuineness of the suit promissory note an! this, having been recorded before the abortive attempt to decide the suit by oath commenced, remained available after the District Munsif had for proper reasons permitted the plaintiff to withdraw his offer.
3. Next, it is contended on the strength of Kutti Mannadiyar v. Payanu Muthan 3 M 288 : 1 Ind. Dec. 756 and Govindan Nair v. Nanu Menon 26 Ind. Cas. 750 : 27 M.L.J. 595 : (1914) M.W.N. 782 that the burden lay on the plaintiff to prove that the promissory note was binding on the defendants Nos. 2 to 5. The District Munsif, after discussing the question whether the promissory note went towards discharge of the debt on a mortgage, observed that the debt was binding on the family. The District Judge also observed that prima facie it was binding and that these defendants had not rebutted that presumption. I think that this is a finding of fact with which I cannot interfere in revision.
4. The petition is dismissed with costs.