Regular Second Appeal No. 3463 of 1985 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3463 of 1985 Date of decision: 27.09.2011 Ratti Ram ..... Appellant. Versus Brahm Kumar ..... Respondent. CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present:- Mr.Jaibir Singh Chandel, Advocate for Mr. Amit Jain, Advocate for the appellant. Mr. K.B. Sarin, Advocate for the respondent. VIJENDER SINGH MALIK, J. Brahm Kumar, respondent had filed a suit for recovery of Rs.10,000/- against Ratti Ram, appellant. The said suit was decreed by the court of Sub Judge Ist Class, Mohindergarh, vide judgment and decree dated 09.01.1981. The appeal preferred by Ratti Ram, appellant against the said judgment and decree, was dismissed by learned Additional District Judge, Narnaul, vide judgment and decree dated 21.09.1985. It is these judgments and decrees of learned trial court and learned First Appellate Court, which have been challenged by the defendant-appellant by way of this Regular Second Appeal. The case set up by Brahm Kumar against Ratti Ram, defendant- appellant for recovery of Rs.10,000/- is as under:- Regular Second Appeal No. 3463 of 1985 2 The defendant borrowed a sum of Rs.6000/- in the year 1973-74 for the marriage of his son and construction of his house, for which an entry was made in the bahi of the plaintiff, which was signed by the defendant. A sum of Rs.5000/- was advanced by the plaintiff to the defendant's wife named Smt. Anchi Devi for construction of the house. On 25.02.1975 the plaintiff went to the house of the defendant at village Kothal Khurd for settling the accounts. The defendant tore away the leaf of the bahi of the plaintiff on which there was entry of the loan. He also manhandled the plaintiff, about which a criminal complaint for an offence punishable under sections 323, 506, 383 of the Indian Penal Code was filed before Judicial Magistrate, Mohindergarh. A panchayat of respectable persons was convened in village Bhandor Oonchi regarding the incident of tearing of leaf and non-payment of the money on 11.3.1975, in which it was settled that the defendant would pay a sum of Rs.10,000/- in complete satisfaction of the dues of the plaintiff in three installments; the first one of Rs.3300/- in the year 1976 and the second of the same amount in the year 1977 and the 3rd of Rs.3400/- in the year 1978. Despite repeated demands, the defendant did not pay the aforesaid amount and, therefore, a suit for recovery of Rs.10,000/- had been brought. The defendant had resisted the claim of the plaintiff. He has denied taking of loan and tearing the leaf of bahi having any entry of such loan transaction. He has claimed that the complaint filed by the plaintiff against him is false. He has rather submitted that it was Regular Second Appeal No. 3463 of 1985 3 he to whom a sum of Rs.6000/- was due from the plaintiff, which he did not pay. He has even denied convention of any panchayat, any settlement or any writing created by the panchayat. He has claimed that the plaintiff is maintaining illicit relations with Smt. Anchi Devi, his wife and once he had found the plaintiff in compromising position with his wife and that he had beaten his wife and the plaintiff regarding which a false complaint had been filed. He has further claimed that the plaintiff hatched a conspiracy with Smt. Anchi Devi and, therefore, this false claim has been filed. Suit has been prayed to be dismissed. Some additional objections based on the amount alleged to be payable by the plaintiff to the defendant are taken. The suit is also claimed to be barred by limitation. It is claimed that the plaintiff is in the habit of forging documents. He has cited some examples wherein it is claimed that forged documents have been produced. Taking replication to the written statement, the following issues were framed by the trial court:- “1- Whether the defendant executed agreement dated 11.3.1975 in favour of the plaintiff admitting his liability to pay a sum of Rs.10,000/- and the said document was for consideration ?OPP 2- If issue no.1 is proved, whether the defendant agreed to pay the sum of Rs.10,000/- in three installments as alleged in para no.3 of the plaint ?OPP Regular Second Appeal No. 3463 of 1985 4 3- Whether the suit has been filed by the plaintiff in collusion with the wife of the defendant who is on inimical terms with him?OPD 4-- Whether the defendant is entitled to special costs ?OPD 5- Relief.” The parties led their respective evidence. Hearing learned counsel for the parties, learned trial court found the plaintiff to have succeeded in establishing his claim for recovery of Rs.10,000/- from the defendant. Issues no.1 to 3 had been the material issues of the case and had been taken up together by learned trial court. After detailed discussion of the evidence on those issues, learned trial court has reached the conclusion that the defendant was proved to have executed the compromise writing Ex.P-1 in favour of the plaintiff admitting his liability to pay a sum of Rs.10,000/- to the plaintiff without interest. He was also found to have agreed to pay the said amount in three installments. The evidence of the plaintiff regarding collusion between the plaintiff and Smt. Anchi Devi, wife of the defendant was not found to be worth reliance. Hence deciding these issues accordingly and issue no.4 going un-pressed, the suit was decreed. The appeal of the defendant-appellant failed which was dismissed vide judgment and decree dated 21.09.1985 by learned Additional District Judge, Narnaul. Regular Second Appeal No. 3463 of 1985 5 Still feeling dis-satisfied, the defendant has brought this Regular Second Appeal. I have heard Shri Jaibir Singh Chandel, Advocate for Mr. Amit Jain, Advocate for the appellant and Mr. K.B. Sarin, Advocate for the respondent and have gone through the record. Learned counsel for the appellant has submitted that the claim of the respondent Brahm Kumar for recovery of Rs.10,000/- is based on bahi entry. According to him , neither the bahi entry nor a copy thereof has been proved on the record. According to him, the suit has been decreed on the strength of the panch document Ex.P-1, which is non-stamped and inadmissible in evidence. He has submitted that the relations between the appellant and Smt. Achi Devi, as husband and wife were strained. He has submitted that out of Rs.11,000/- alleged to be advanced by the plaintiff to the defendant, a sum of Rs.5000/- is said to have been advanced to his wife. He has submitted that the wife of the appellant had been maintaining adulterous relationship with the respondent and had been living with him. He has submitted that on account of the same, the appellant had filed a petition for decree of divorce against her. He has further submitted that the wife of the appellant had gone to the extent of deposing in favour of the plaintiff-respondent in the suit brought against her husband and this goes to show the extent to which the relationship between the two had been strained. Regular Second Appeal No. 3463 of 1985 6 He has further submitted that the compromise writing Ex.P-1 is fictitious. According to him, the same does not carry the signatures of Ratti Ram, appellant. He has submitted that the appellant had examined R.P. Singh, Handwriting Expert as DW-1, who has stated that the signatures on Ex.P-1 have not been made by Ratti Ram, defendant. He has submitted that ignoring the statement of handwriting expert, learned courts below have recorded findings in favour of the plaintiff, which are perverse and require to be reversed. Learned counsel for the respondent,on the other hand, has submitted that the bahi entry in original had been torn by the defendant-appellant and as the plaintiff-respondent had no copy thereof, there was no question of proving the same on record. He has submitted that the dispute between the parties led to convention of brotherhood panchayat, which decided that the defendant-appellant would pay a sum of Rs.10,000/- to satisfy the claim of the plaintiff against him in three installments. According to him, this document is proved to have the signatures of Ratti Ram by A.M. Jha, Handwriting Expert examined by the plaintiff as PW-5. According to him, not only the plaintiff himself has made a statement as PW-1 and has testified about his entire case including writing Ex.P-1 but has also examined Nand Kishore, scribe of this writing as PW-2. He has also submitted that the plaintiff has examined Sheodan Singh, Ex-Sarpanch, who has attended the said panchayat and is an attesting witness of the writing Ex.P-1. Besides all these witnesses, plaintiff has examined the wife of Regular Second Appeal No. 3463 of 1985 7 the defendant, who has also supported the claim of the plaintiff. According to him, there was clinching evidence to prove the claim of the plaintiff and learned courts below have not committed any error in relying upon the same. He has, therefore, prayed for dismissal of Regular Second Appeal. From the submissions made by learned counsel for the parties, the only substantial question that arises for determination is as to “whether the findings of the courts below regarding the liability of Ratti Ram, appellant, to Brahm Kumar, plaintiff in a sum of Rs.10,000/- are perverse.” The plaintiff had claimed in para no.2 of the plaint that his bahi entry was torn by the defendant when he went with the same to the defendant for settling the account. When the document was destroyed by the defendant, there were no means with the plaintiff to have produced the same or a photocopy thereof, which was also not in existence. I am doubtful if there was any photocopier available in the year 1975 especially in the village for the plaintiff to have a photocopy of his bahi entry. Regarding the factum of tearing of bahi entry, the plaintiff claimed to have filed a complaint before Judicial Magistrate, Mohindergarh. The defendant has admitted the factum of filing of this complaint by the plaintiff against him. A copy of the said complaint is on the record as Ex.P-5, which contains the version of the incident of tearing of bahi leaf. Regular Second Appeal No. 3463 of 1985 8 Compromise writing Ex.P-1 is the document, executed between the plaintiff and the defendant, which is thumb marked by Smt. Anchi Devi, wife of the defendant-appellant. It carries the signatures of several persons including Nand Kishore Sharma as its scribe. The defendant-appellant filed a petition for decree of divorce against Smt. Anchi Devi under the provisions of section 13 of the Hindu Marriage Act. Copy of that petition is Ex.D-1. The said petition was dismissed as withdrawn as is admitted by Ratti Ram, defendant, appearing as DW-2. The signatures of Ratti Ram, defendant on writing Ex.P-1 were compared by handwriting experts, one examined on each side. Both of them have given the reports favouring the parties engaging him. The signatures on writing Ex.P-1 have been written in a free flow hand writing and they have complete resemblance with the signatures of Ratti Ram appearing on his written statement as well as on various other documents including his statement recorded by Sub Judge Ist Class, Mohindergarh on 17.11.1978. The statements of the scribe of the document Nand Kishore and one of the witnesses Sheodan Singh are sufficient to prove that the document was written after the parties reached a settlement and the document is signed by Ratti Ram, defendant. Nothing appears in the statements of these witnesses on account of which their statements could be held doubtful. Ex.P-1, the document had been admitted in evidence without any objection as to its Regular Second Appeal No. 3463 of 1985 9 admissibility on account of being unstamped. This objection cannot be taken at this stage. For these reasons, I am of the opinion that the findings of both the courts below on the question of liability of the defendant- appellant to the plaintiff in a sum of Rs.10,000/- are not perverse in any manner. The substantial question is, therefore, answered against the appellant. The Regular Second Appeal is found to be devoid of merit and is dismissed with costs. ( Vijender Singh Malik ) September 27, 2011 Judge dinesh