Regular Second Appeal No. 2562 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2562 of 2007 Date of decision : August 19, 2010 Gurdev Singh ....Appellant versus Ram Pal and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vikas Cuccria, Advocate, for the appellant Mr. PL Singla, Advocate, for respondent no. 1 Mr. MK Garg, Advocate, for respondent nos. 2 to 7 L.N. Mittal, J. (Oral) Gurdev Singh defendant no. 7 has filed the instant second appeal having remained unsuccessful in both the courts below. Suit was filed by Ram Pal respondent no. 1 against appellant (defendant no. 7) and respondents no. 2 to 7 (defendants no. 1 to 6) for recovery of Rs 61,973/-. Defendants no. 1 to 6 are two sons, widow and three daughters i.e. legal heirs of Ajmer Singh since deceased. Plaintiff's case is that Ajmer Singh and his son Jagsir Singh defendant no. 1 and Gurdev Singh defendant no. 7 had been visiting the plaintiff's shop of commission agency. They also used to sell their agricultural crop on the Regular Second Appeal No. 2562 of 2007 -2- shop of the plaintiff. Ajmer Singh defendant no. 1 had borrowed various amounts from the plaintiff on different dates. Defendant no. 7 also received Rs 70,000/- from the plaintiff on 20.6.2001 alleging to be on behalf of Ajmer Singh. Some entries were thumb marked by Ajmer Singh and some entries were signed by Gurdev Singh and Ajmer Singh. After adjusting the amount of agricultural produce sold, a sum of Rs 43,663/- remained due from the defendants towards the plaintiff as principal amount. The plaintiff also claimed Rs 18,312/- as interest thereon at agreed rate of 24% per annum. Accordingly, the plaintiff filed suit for recovery of total amount of Rs 61,973/-. Defendants no. 1 to 6 admitted that they had been receiving amounts from the plaintiff and selling their crop at the shop of the plaintiff. However, they pleaded that sum of more than Rs 30,000/- was due to Ajmer Singh/defendants no. 1 to 6 from the plaintiff. It was pleaded that the amount of Rs 70,000/- was received by defendant no. 7 from the plaintiff but Ajmer Singh never asked the plaintiff to pay the said amount to defendant no. 7. Consequently, defendants no. 1 to 6 are not liable to pay the said amount of Rs 70,000/-. Excluding the same nothing remained due from defendants no. 1 to 6 to the plaintiff and rather more than Rs 30,000/- remained due from the plaintiff to these defendants. Defendant no. 7, inter alia, pleaded that he had leased out his 16½ acres land to Ajmer Singh on 1.7.2001 @ Rs 8200/- per acre and lease agreement was executed and Ajmer Singh took the amount of Rs 70,000/- from the plaintiff and out of it paid Rs 66,625/- to defendant no. 7 towards lease money in the presence of witnesses. Accordingly, defendant no. 7 Regular Second Appeal No. 2562 of 2007 -3- pleaded that he is not liable to pay any amount to the plaintiff. Learned Civil Judge (Junior Division), Moga vide judgment and decree dated 5.5.2005 decreed the plaintiff's suit against defendant no. 7 only for recovery of Rs 43,663/- with interest thereon @ 6% per annum from the date of filing of the suit till recovery. Defendants no. 1 to 6 were held not liable to pay any amount to the plaintiff. First appeal preferred by defendant no. 7 Gurdev Singh stands dismissed by learned Additional District Judge, Moga vide judgment and decree dated 15.5.2006. Feeling aggrieved, defendant no. 7 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. During the course of evidence, defendant no. 7 while appearing in the witness box as DW2 admitted that he had received Rs 70,000/- from the plaintiff and he had also signed original Bahi entry dated 20.6.2001 regarding the same. Gurdev Singh, however, stated that he had received the said amount from the plaintiff at the instance of Ajmer Singh towards lease money and he retained Rs 66,625/- out of it and paid the balance amount of Rs 3375/- to Ajmer Singh. Similar statement has been made by Karam Singh DW1. The aforesaid evidence of defendant no. 7-appellant is sufficient to disprove his entire version. According to the written statement, Ajmer Singh himself had taken Rs 70,000/- from the plaintiff and out of it Ajmer Singh allegedly paid Rs 66, 625/- to defendant no. 7. However, in the evidence defendant no. 7 came out with a new version that at the asking of Ajmer Singh, he i.e. defendant no. 7 had himself Regular Second Appeal No. 2562 of 2007 -4- received Rs 70,000/- from the plaintiff and out of it he retained Rs 66, 625/- towards lease money and paid the remaining amount of Rs 3375/- to Ajmer Singh. Thus, evidence of defendant no. 7-appellant is completely contradictory of his stand in the written statement. On the other hand, Bahi entry regarding payment of Rs 70,000/- on 20.6.2001 by plaintiff to Gurdev Singh has been signed by Gurdev Singh only and has not been signed or thumb marked by Ajmer Singh. Gurdev Singh admitted in his cross- examination that Ajmer Singh had not even come to the shop of the plaintiff on that day. It is, thus, apparent that the amount of Rs 70,000/- was received by defendant no. 7 and therefore, he has been rightly held liable to pay the principal suit amount claimed by the plaintiff. The version of defendant no. 7 that he had received Rs 66,625/- as lease money from Ajmer Singh or at his instance is further falsified by the fact that according to defendant no. 7 he leased out his land to Ajmer Singh on 1.7.2001 for which lease agreement dated 1.7.2001 was also produced in evidence. Consequently, lease money could be paid by or on behalf of Ajmer Singh to defendant no. 7 on or after 1.7.2001 only but admittedly defendant no. 7 received the amount of Rs 70,000/- from the plaintiff on 20.6.2001. There was no occasion for defendant no. 7 to receive the said amount on 20.6.2001 towards lease money allegedly due from Ajmer Singh when land was allegedly leased out by defendant no. 7 to Ajmer Singh on 1.7.2001 i.e. 11 days after defendant no. 1 had already received the amount from the plaintiff. Consequently, by no means it can be said that defendant no. 7 had received the said amount on 20.6.2001 towards lease money allegedly due from Ajmer Singh. The entire version Regular Second Appeal No. 2562 of 2007 -5- of defendant no. 7 is falsified. There is concurrent finding against the appellant-defendant no. 7. The said finding being based on appreciation of evidence cannot be said to be perverse or illegal warranting interference in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The finding is pure finding of fact. Lower appellate court is final court of finding of fact. Learned counsel for the appellant contended that FIR No. 200 dated 27.10.2007 has been registered against plaintiff-respondent no. 1 regarding forgery of the Bahi entry and therefore, plaintiff's suit could not have been decreed and the instant appeal should be admitted. The contention cannot be accepted. The said FIR has been lodged during the pendency of the instant appeal. Defendant no. 7 never took any step for initiating criminal case against the plaintiff either during the pendency of the suit or during pendency of the first appeal although the suit stood instituted on 13.8.2003. Thus, for four years no FIR was lodged against the plaintiff. Moreover, even in the written statement, defendant no. 7 did not plead the Bahi entry to be forged. That apart, defendant no. 7 in the witness box specifically admitted his signatures on the Bahi entry in question and also admitted to have received Rs 70,000/- from the plaintiff. Consequently, the question of Bahi entry being forged one does not arise. The FIR appears to have been lodged only to stall the claim of the plaintiff which had been decreed by the courts below. As per defendants own admission, the Bahi entry cannot be said to be forged. Consequently, merely on the ground of FIR having been lodged during the pendency of the instant second appeal, the appeal cannot be admitted. Regular Second Appeal No. 2562 of 2007 -6- For the reasons aforesaid, I find that the appeal is completely meritless and frivolous. The appeal is accordingly dismissed. ( L.N. Mittal ) August 19, 2010 Judge 'dalbir'