R.S.A.No.2225 of 1989 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2225 of 1989 Date of decision: 8.12.2011. Bhajan Singh .....Appellant Versus Gurdial Singh ...Respondent CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA. Present: None ***** G.S.SANDHAWALIA, J. 1. The present appeal has been filed by the plaintiff, who is aggrieved against the judgment and decree of the learned Lower Appellate Court wherein the appeal of the respondent was accepted by setting aside the judgment and decree of the trial Court and the suit of the plaintiff was dismissed with costs. 2. The case of the appellant-plaintiff was that the defendant had entered into agreement to mortgage his land on 31.7.1982 for a sum of Rs.9500/- and the said mortage deed was to be registered by 31.7.1983. After the said registration in the month of April, 1984, the plaintiff learnt that the defendant was not the owner of the land any more and had sold it to one Mohinder Singh son of Paire Singh, who further gave it in exchange to Lakhbir Singh, Balbir Singh and Binder Singh and therefore, the defendant was not in a position to mortgage the said land as agreed and therefore, he R.S.A.No.2225 of 1989 -2- **** prayed for recovery of the suit amount of Rs.10,000/- out of which Rs.9500/- was amount of principal and Rs.500/- as damages. 3. The defence set up by the defendant was that the thumb impression had been obtained fraudulently and through misrepresentation since the plaintiff had obtained thumb impression of the defendant on an agreement as a witness for consideration of Rs.5000/- and since the entire mortgage money was alleged to have been paid on that date whey the mortgage deed was not registered. It was further alleged that there was no sense in getting two different agreements on the same day and the plaintiff had already obtained a decree on the basis of the agreement of the same date for Rs.5000/-. It was further alleged that the plaintiff was a money lender and had not complied with the provisions of the Punjab Money Lenders Registration Act and Regulation of Accounts Act and that the defendant was a small farmer and a debtor and the agreement was without consideration. 4. The trial Court after taking into consideration the pleadings and the evidence on record noticed that the agreement was attested by Dalip Singh and Ajmer Singh and that the plaintiff had admitted that the defendant had also executed another agreement to mortgage his land with the plaintiff. It was also noticed by the trial Court that the Dalip Singh PW2 was close relative of the plaitniff and admitted in cross-examination that the no amount of Rs.9500/- had been paid to the defendant at the time of execution of Ex. P1 and rather there was renewal of the previous agreement. It was also admitted by the said witness that the plaintiff advances loans to other persons against such agreements. The statement of other attesting witness, namely, Ajmer Singh of Ex.P1, who was examined as DW-1 was also taken into consideration who also deposed R.S.A.No.2225 of 1989 -3- **** that no cash consideration had passed in his presence. However, the trial Court came to the conclusion that the execution of the agreement stood proved but it was a loan and the plaintiff was entitled to recover the same and there was no evidence to hold that impugned agreement was result of misrepresentation or fraud. However, in view of the fact that land did not belong to the defendant, it was held that the agreement cannot be specifically enforced and as such plaintiff is entitled to recovery of Rs.9500/-. 5. This finding of fact was assailed by the defendant before the learned Lower Appellate Court, which while referring to the cross examination of witnesses came to the conclusion that there were two other agreements executed by the defendant probably on the same day and the defendant had taken the loan for his own marriage. The decree had already been passed in his favour on the basis of prior agremeent for Rs.5000/-. It was also noticed that Dalip Singh PW-2 who was the relative of the plaintiff had also taken a loan from the plaintiff five years ago but he had returned the same two years thereafter and he did not remember the amount regarding the agreement dated 31.7.1982. The other witness Ajmer Singh DW-1 had denied passing of the consideration and had said that nothing was paid on that day. Thus, the learned Lower Appellate Court came to the conclusion that no consideration came to be passed between the parties. Ajmer Singh who was a disinterested witness had not supported the plaintiff and other attested witness was closely related to the plaintiff and, therefore, the agreement was got executed by the plaitniff from the defendant without consideration especially since the land was also not owned by the defendant. Accordingly, the appeal was allowed and the suit of the plaintiff was dismissed. R.S.A.No.2225 of 1989 -4- **** 6. The Lower Appellate Court, which is the final Court of fact after discussing the evidence has come to the conclusion that the land was never owned by the defendant and witnesses regarding passing of consideration have not supported the case of the plaintiff. The said finding cannnot be said to be perverse or unreasonable. A perusal of the statement of the witnesses goes on to show that the plaintiff has admitted in his cross examination that he has advanced Rs.16,500/- to Dalip Singh on 31.7.1982 which is the date of execution of Ex.P1. The categorical defence of the defendant is that he had appeared as a witness to the said agreement and his thumb impression had been taken by fraud and misrepresentation. Since the plaintiff himself had admitted that on the same date he had also advanced Rs.16,500/- to Dalip Singh, therefore, the defendant has been able to rebut and explain the circumstances of fraud which had been played upon. 7. The plaintiff has also admitted that he regularly advances money and charges interest from the persons who execute agrements in his favour and he charges interest @ 2% per month. The deed writer PW- 3 Dharam Singh Puri has also in cross-examination deposed that he had executed five agreements in favour of the plaintiff on 31.7.1982 in favour of various persons starting from serial no.206 onwards which goes on to substantiate the plea of the defendant that the plaintiff is a money lender. The attesting witnesses to the agreement Ex. P1 have themselves admitted that no amount of Rs.9500/- was paid by the plaintiff to the defendant at the time of the execution of Ex.P1 and even DW-2 the uncle of the plaintiff had admitted that the plaintiff advances money to people against land on interest. 8. Keeping all these facts in mind, the finding recorded by the R.S.A.No.2225 of 1989 -5- **** Lower Appellate Court that no money was advanced to the defendant as the attesting themselves have not supported the case of the plaintiff cannot be said to be based on no evidence. Infact, the trial Court while noticing all these facts has wrongly decreed the suit in favour of the plaintiff which has been corrected by the Lower Appellate Court by allowing the appeal of the defendant-respondent. Thus, no substantial question of law arises for consideration in the facts and circumstances of the present case which have been enumerated above and in the absence of any question of law arising out of the present appeal the same is liable to dismissed and it is ordered accordingly. December 08, 2011 (G.S.SANDHAWALIA) Pka JUDGE R.S.A.No.2225 of 1989 -6- ****