Regular Second Appeal No. 4740 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4740 of 2010(O&M) Date of decision : December 08, 2010 Mohinder Singh ....Appellant versus M/s Sukhdev Ram and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms Maninder Kaur, Advocate for Ms Sonia G. Singh, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 14008.C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 86 days in refiling the appeal is condoned. RSA No. 4740 of 2010 Defendant Mohinder Singh having lost in both the courts below has filed the instant second appeal. Respondents/plaintiffs i.e. M/s Sukhdev Ram Sohan Lal, Commission Agents and its sole proprietor Sukhdev Ram filed suit against defendant-appellant for recovery of ` 1,28,350/- alleging that the defendant had been selling his agricultural produce at the shop of the plaintiffs and used to settle his account after every crop season. There were some Regular Second Appeal No. 4740 of 2010(O&M) -2- transactions in the year 2002-03 regarding amounts taken by the defendant and regarding sale of wheat and paddy crop by him. The accounts were settled on 9.5.2002 after wheat crop and on 6.11.2002 after paddy crop and nothing remained due from either side. Thereafter on 7.5.2003, defendant borrowed ` 85,000/- from the plaintiffs and executed Bahi entry by thumb marking the same. However, the defendant did not sell his wheat crop of the year 2003 to the plaintiffs nor repaid the amount with interest. Accordingly, plaintiff claimed principal amount of ` 85,000/- and interest amount of ` 43,350/- thereon. Defendant broadly controverted the plaint allegations. Defendant alleged that he is illiterate and his thumb impressions might have been obtained on some documents by the plaintiffs but the defendant never took loan of ` 85,000/- from the plaintiffs. The defendant had given his land on lease to his co-villager and therefore, there was no occasion for the defendant to take loan from the plaintiffs for agricultural purpose. The defendant, however, admitted that he had been selling his agricultural produce at the shop of the plaintiffs. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Samana vide judgment and decree dated 10.12.2008 decreed plaintiffs' suit for recovery of principal amount of ` 85,000/- along with interest thereon @ 10% per annum with effect from 7.5.2003 till recovery. In first appeal preferred by the defendant, learned Additional District Judge, Patiala vide judgment and decree dated 6.5.2010 slightly modified judgment and decree of the trial court and decreed plaintiffs' suit for recovery of principal amount of ` 85,000/- alongwith interest @ 10% per annum with effect from 7.5.2003 till Regular Second Appeal No. 4740 of 2010(O&M) -3- institution of the suit and thereafter @ 6% per annum from the date of institution of suit till recovery. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the defendant had not taken any loan and his thumb impressions might have been obtained by the plaintiffs because defendant had been selling his agricultural produce on the shop of the plaintiffs. The contention cannot be accepted. The plaintiff himself appeared in the witness box as PW1 and examined Harinder Kumar PW2. Both of them have stated according to the plaintiffs' version. On the contrary, defendant himself stepped into witness box and deposed according to his version. The defendant in his pleadings and testimony has impliedly admitted his thumb impression on the Bahi entry in question relating to loan of ` 85,000/- taken by defendant from the plaintiffs. The said entry and advancement of loan has also been proved by the plaintiffs' evidence. In these circumstances self serving sole, bald statement of defendant himself is not sufficient to hold that he had thumb marked the Bahi entry without receiving any amount. If the defendant had not taken any loan whatsoever from the plaintiffs, there was no occasion for the defendant to have thumb marked the Bahi entry. The defendant has alleged that he had given his land on lease to his co-villager and therefore, defendant did not need any money for agricultural purpose. However, the defendant has miserably failed to substantiate his said version. Except bald oral statement of the defendant, Regular Second Appeal No. 4740 of 2010(O&M) -4- there is no other material on record to substantiate the said version of the defendant. The defendant has not even pleaded to whom he had given his agricultural land on lease nor the said lessee has been examined as witness by the defendant in support of his aforesaid version nor any document in support of the said version has been placed on record. Consequently, said version of the defendant has been rightly discarded by the courts below. There is concurrent finding by both the courts below in favour of the plaintiffs/respondents. The said finding is based on appreciation of evidence and is supported by cogent reasons and is fully justified by the evidence on record. Consequently, said finding cannot be said to be perverse or illegal so as to call for interference in second appeal. Decision of the lis depends on the finding of fact. Lower appellate court is the final court of fact. There is no ground to upset the finding recorded by the courts below which is finding of fact. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. ( L.N. Mittal ) December 08, 2010 Judge 'dalbir'