RSA No.2977 of 2010 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2977 of 2010 Date of decision: August 16 , 2011. Kulwant Singh ... Appellant(s) v. Davinder Singh ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Amarjit Markan, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. (Oral): Present regular second appeal has been filed by the defendant to the suit. Plaintiff Davinder Singh had instituted a suit for recovery of Rs.1.40 lacs against the defendant, out of which an amount of Rs.1.25 lacs was claimed as principal amount and Rs.15,000/- as interest @ 12% per annum with effect from 1.1.2005 till filing of the suit. A declaration was also sought that the plaintiff was entitled to recover the above stated amount from half share of the agricultural land measuring 22 bighas 17 biswas, detail and description of which was given in the plaint in consonance with the jamabandi for the year 2003-04. A further prayer was made that during the pendency of the suit, a decree of permanent injunction be granted and defendant be restrained from alienating/mortgaging or disposing of the property or creating any sort of charge in any manner over any part of the aforesaid land. It was pleaded in the suit that defendant had taken an RSA No.2977 of 2010 -: 2 :- amount of Rs.1.25 lacs on 22.5.2003. The interest was payable @ 12% per annum and having obtained the loan, the defendant had executed a pronote and a receipt which were duly attested by the witnesses. Suit was filed for the reason that the defendant had failed to repay the loan. It was further averred that the defendant has half share in the land measuring 22 bighas 17 marlas, detail and description of which was given in the plaint and since he has already mortgaged 3 bighas and 19 biswas, a declaration was sought that the plaintiff was entitled to recover this amount from the above stated land. Upon notice, defendant caused appearance and stated that the plaintiff had taken possession of land measuring 8 bighas 17 biswas owned by defendant on 22.5.2003. The land was given in lieu of pronote and receipt dated 22.5.2003 in July 2005. Defendant had voluntarily vacated the possession ahead of the scheduled time as amount was repaid to the plaintiff. It was pleaded that the theka/batai charges were set off against the interest. Plaintiff, to deny the averments made in the written statement, filed replication in which he reiterated the contents of the plaint. After conclusion of the pleadings, the trial court had drawn the following issues:- 1. Whether defendant borrowed a sum of Rs.1,25,000/- from the plaintiff and executed pronote and receipt in favour of the plaintiff? OPP 2. Whether plaintiff is entitled for the interest @ 12% per annum? OPP 3. Whether plaintiff is entitled for recovery of suit amount?OPP 4. Whether plaintiff is entitled for the decree of RSA No.2977 of 2010 -: 3 :- declaration?OPP 5. Whether the plaintiff is entitled for the relief of injunction?OPD 6. Whether suit of the plaintiff is legally maintainable?OPD 7. Relief. The plaintiff himself appeared as PW3 and examined Gurmail Singh son of Gurnam Singh and Jeet Singh son of Kaka Singh, attesting witnesses of pronote and receipt as PW1 and PW2 respectively. The defendant examined Jeet Singh son of Gurdial Singh and Jeet Singh son of Sadhu Singh as DW1 and DW2 and himself appeared as DW3. The plaintiff in his testimony stated that on 22.5.2003 when he advanced loan, the defendant had delivered him possession of the land measuring 8 bighas 17 biswas and the interest was to be set off against theka/batai charges. The plaintiff admitted that he harvested the paddy crop in the year 2004 and thereafter the defendant entered into suit property. Therefore, he raised his claim to interest on the loan amount from 1.1.2005 till realization. Execution of the pronote and receipt and advancement of the loan has also been admitted by the defendant. However, the defendant has taken a stand that the amount was repaid and therefore the possession was delivered back to him. The argument was raised before the trial court that the very fact that the delivery of possession and its return has been admitted by plaintiff, therefore, this Court should draw an inference that when the possession was delivered back to the defendant, loan was repaid. In support of this, Illustration (1) to Section 114 of the Evidence Act was pressed into service. The trial court decided issues No.1 to 3 together and held as under:- “10. ... I am of the considered view that even if the contention RSA No.2977 of 2010 -: 4 :- of the defendant is accepted that the plaintiff delivered possession of the land to him in July, 2004, the same cannot be treated as the presumption of discharge of the loan liability. The repayment of the loan can be proved by defendant only on the basis of the receipt issued by the plaintiff or by the defendant by obtaining possession of the pronote and receipt. In the present case, the defendant neither took the pronote and receipt from the plaintiff nor he insisted on taking the same back. There is no explanation whatsoever regarding the plaintiff's possession on the pronote and receipt even though the defendant alleges repayment of the loan. In these circumstances, I am of the considered view that preponderance of probability is in favour of version of the plaintiff that the loan still remains to be repaid.” It is an admitted fact that no receipt or document has been produced by the defendant to show repayment of the loan. Thus, the findings given by the trial court and duly affirmed by the lower appellate court do not suffer from any infirmity. The trial court also held that interest at the rate of 12% per annum claimed by plaintiff is excessive and awarded interest @ 6% per annum. The trial court while deciding issues No.4 to 6 held that the suit for declaration and permanent injunction is not maintainable, however, plaintiff is only entitled to recovery of the amount. While deciding the above stated issues, the trial court decreed the suit for recovery of Rs.1.25 lacs along with interest @ 6% per annum from the date of 1.1.2005 till the date of actual realization. Shri Amarjit Markan, Counsel appearing for the appellant, has RSA No.2977 of 2010 -: 5 :- laid emphasis on the deposition of Gurmail Singh PW1 wherein he has admitted that the possession was delivered by the defendant but no writing was done and he had further admitted that the plaintiff had left the possession after two years. Furthermore, this witness has also admitted that so long as the possession was with the plaintiff, he sold the produce out of the land. Counsel states that the above stated part of the testimony should be taken into consideration along with the statement made by PW3 Davinder Singh, plaintiff, that in July 2005, he had left the possession to Kulwant Singh defendant and the plaintiff had not taken forcible possession. Counsel states that the very fact that the possession was delivered back, is sufficient to hold that defendant had repaid the loan. As stated earlier, this plea has been rejected by the trial court. The lower appellate court also had not accepted this contention and held as under:- “21. ... The defendant could not, on the basis of the plaintiff having delivered possession of the land to him, claim the automatic repayment of the loan amount by him. The transaction regarding the repayment of the interest on the loan amount borrowed by the defendant on the basis of the pronote Ex.P1 and receipt Ex.P2 is no doubt inter connected but the same was independent in the sense that it related to the possession of the land to remain with the plaintiff. There is no denial to the fact made by the defendant that the plaintiff had re-delivered the possession of the land to the defendant in July 2005 and therefore, it would mean that the plaintiff could claim the interest from the date of his having delivered back the possession of the land to the defendant. It was for the defendant to have obtained a receipt from the plaintiff regarding the repayment of the loan amount in the absence of which the Court has to accept the plea of the plaintiff that he is RSA No.2977 of 2010 -: 6 :- entitled to claim the interest thereon from the month of July, 2005 which has been claimed by him w.e.f. 1.1.2005.” Thus a crucial issue for the determination of this Court is as to whether non-execution of the receipt of repayment of the loan shall lend credence to the plaintiff's version or delivery of possession of land to defendant on 1.1.2005 will make the version of defendant probable. The two courts below, on appreciation of evidence have rejected the bald oral assertion made in the defendant's evidence that the loan was paid back on the date the possession was restored to the defendant. This Court will not tread on the path of re-appreciation and re-appraisal of the evidence, especially when the two courts below have held that non-execution of the receipt or any document regarding repayment of the loan is a significant factor. The view formulated by the two courts below is the one which is possible in the facts and circumstances of the case. Therefore, in the regular second appeal, this Court will not formulate any other opinion, which according to the Counsel, is also possible on the facts. Thus, the proposed substantial questions of law formulated in the Grounds of Appeal are nothing but based on appraisal of facts and they are not sufficient to warrant interference of this Court. Hence, they are to be discarded. As a result of aforesaid discussion, there is no merit in the appeal and the same is dismissed in limine. [Kanwaljit Singh Ahluwalia] August 16 , 2011. Judge kadyan