RSA No.184 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.184 of 2011 Date of decision: 17.01.2011 Gurmail Singh ........Appellant Versus Baljinder Singh ......Respondent CORAM: HON'BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Ajay Pal Singh, Advocate for the appellant. L. N. MITTAL, J.(ORAL) Defendant-Gurmail Singh, having failed in both the Courts below, is in second appeal. Respondent-plaintiff-Baljinder Singh filed suit against defendant-appellant for recovery of Rs.1,51,200/- alleging that the defendant on 25.02.2005 borrowed Rs.1,20,000/- from the plaintiff and agreed to repay the same with interest at the rate of 1.5% per month and executed pronote and receipt for the same. However, plaintiff has claimed interest at the rate of 1% per month only. The defendant did not pay anything towards principal or interest. Accordingly, the plaintiff sought recovery of Rs.1,51,200/- which includes Principal amount of Rs.1,20,000/- and interest amount of Rs.31,200/- till 25.04.2007 i.e a month before the filing of the suit. Defendant broadly denied the plaint allegations. The defendant alleged that after death of plaintiff’s father Amarjit Singh, plaintiff’s mother Mohinder Kaur performed Kareva marriage with Amarjit Singh’s brother Megh Singh. All of them including another RSA No.184 of 2011 -2- brother Ajaib Singh of Amarjit Singh were residing together. On 22.05.2003, defendant mortgaged his 4 Bighas land with Ajaib Singh and Megh Singh, who obtained defendant’s thumb impressions for the purpose of mortgage deed and possibly thumb impressions of defendant were obtained at that time on some blank papers or pronote etc by fraud and the defendant is not bound by the same. The defendant never borrowed any amount from the plaintiff. The defendant got his property redeemed on 17.07.2006. Various other pleas were also raised.. Learned Civil Judge (Senior Division), Sangrur vide judgment and decree dated 19.05.2009 decreed the plaintiff’s suit for recovery of Rs.1,51,200/- along with pendente lite and future interest. First appeal preferred by the defendant has been dismissed by learned District Judge, Sangrur vide judgement and decree dated 05.10.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff has examined both attesting witnesses of the pronote-cum-receipt, besides himself appearing in the witness box. All of them have stated according to plaintiff’s version. The plaintiff also examined document expert, who has deposed that disputed thumb impressions of defendant on pronote-cum-receipt tally with his specimen thumb impressions. On the other hand, defendant examined Head Constable Prakash Chand, who proved copy of FIR Ex.D-1 lodged against the document expert examined by the plaintiff. However, the said FIR was cancelled by the Police after investigation RSA No.184 of 2011 -3- having been found to be false. The defendant also examined Gram Sewak, Harbhajan Singh, who proved below poverty line (BPL) ration card issued in favour of plaintiff’s uncle Megh Singh. Sher Singh DW stated about Kareva ceremony of plaintiff’s mother Mohinder Kaur with plaintiff’s uncle Megh Singh. The defendant himself also stepped into the witness box and stated according to his own version. Plaintiff has proved his case beyond doubt . The plaintiff has examined both witnesses of pronote-cum-receipt. They have supported the plaintiff’s version. The plaintiff himself has also deposed about his version. The plaintiff has also examined expert witness to prove thumb impressions of the defendant on the pronote- cum-receipt. Moreover, the defendant in his written statement impliedly admitted his thumb impressions on the pronote-cum- receipt. The defendant took the plea of fraud, but the defendant has miserably failed to prove the same. There is practically no evidence to prove the alleged fraud except self-serving, bald and oral testimony of the defendant himself. Moreover, the defendant alleged that at the time of mortgage, if his thumb impressions were obtained on blank paper or pronote etc. by fraud, he is not bound by any such document prepared by using those blank papers or pronote etc. The defendant, however, did not even allege that at the time of mortgage, his thumb impressions had actually been obtained on any blank paper or pronote. Even otherwise, there is no reason why the defendant would affix his thumb impressions on blank pronote for the purpose of mortgage deed. In addition to it, the mortgage was allegedly created on 22.05.2003 whereas the pronote-cum-receipt in RSA No.184 of 2011 -4- question is dated 25.02.2005 i.e more than 21 months after the mortgage. Consequently, it cannot be said that thumb impressions of defendant on the pronote had been obtained at the time of mortgage. Learned counsel for the appellant contended that plaintiff’s uncle Megh Singh with whom plaintiff’s mother had performed Kareva marriage, is BPL ration card holder and, therefore, the plaintiff could not be in a position to advance loan of Rs.1,20,000/- to the defendant. The contention is belied by defendant’s own version. The defendant has himself pleaded that he had mortgaged his land with plaintiff’s uncle Megh Singh and Ajaib Singh. Learned counsel for the appellant submitted that mortgage money was Rs.50,000/-. It would depict sound financial condition of the plaintiff's uncles. In addition to it, learned lower appellate Court has observed in opening part of paragraph 23 of the judgment that it has come in evidence that plaintiff owns 17-18 acres land and also has a tractor to till the same. Moreover BPL ration card has not been issued in the name of the plaintiff himself. Both the Courts below after appreciating the evidence on record have come to concurrent finding in favour of the plaintiff- respondent. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the Courts below. Lower appellate Court has recorded detailed judgment negativing all the contentions raised on behalf of defendant-appellant by assigning cogent reasons. Plaintiff’s evidence is very reliable and has not been properly rebutted by the defendant’s evidence. The finding recorded by the Courts below cannot be said to be perverse RSA No.184 of 2011 -5- or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 17.01.2011. A.Kaundal