1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 12 of 2003 Date of Decision: 3rd November, 2011 Jagan Nath and others Appellants Versus Malook Singh Defendant Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr.Naresh Kumar Thakur, Advocate. For the respondent: Mr. Sanjeev Kuthiala, Advocate. Sanjay Karol, J. (Oral) This is the plaintiffs’ Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908. Courts below have concurrently held the plaintiffs not to have proved valid execution of agreement for sale dated 20.2.1991 with respect to the suit land. Plaintiffs filed a suit for specific performance of agreement dated 20.2.1991 with an alternative prayer for damages. 2. Trial Court framed the following issues on the respective pleadings of the parties:- 1. Whether defendant entered into agreement dated 20.2.91 with the Whether the reporters of Local Papers are allowed to see the Judgment? 2 plaintiffs to sell the suit land to the plaintiffs as alleged? If so, to what effect? OPP 2. Whether defendant borrowed Rs.7000/- from the plaintiffs by mortgaging the land, as alleged? OPD 3. Whether agreement dated 20.2.91 is the result of fraud and misrepresentation, as alleged? OPD 4. Whether the suit is not maintainable? OPD 5. Whether the plaintiffs are estopped by their acts and conduct to file this suit? OPD 6. Whether the suit is not within time? OPD 7. Whether the plaintiffs have no locus standi to file this suit? OPD 2. Trial Court dismissed the plaintiffs’ suit by holding that plaintiffs have not been able to prove valid execution of the agreement dated 20.2.1991. However, trial Court held that defendant had borrowed a sum of ` 7000/- by mortgaging the suit land from the plaintiff, yet the suit was dismissed in entirety in terms of judgment and decree dated 29.2.2000 passed by Sub Judge Ist Class, Court No.II, Amb, District Una, H.P. in Case No.59/94. 3. Such findings of facts stand affirmed by District Judge, Una, in terms of judgment and decree dated 28.9.2002 in Civil Appeal No.46 of 2000. 4. This appeal was admitted on the following substantial questions of law:- 3 1. Whether the Courts below have committed error of law in misconstruing and misinterpreting the agreement to sell Ex.P-3? 4. If the agreement to sale is found not to be enforceable, the Courts below have committed error in not granting the alternative relief of refund of money, which amount the defendant admitted to have received? 5. Having heard learned counsel for the parties and also perused the record, I am of the considered view that plaintiffs have not been able to prove execution of the agreement (Ext.P-3) in accordance with law. Neither the scribe nor the witnesses have been examined in Court. Plaintiff’s testimony to the extent of execution of the agreement also does not inspire confidence. Defendant only know how to sign in Urdu. Plaintiffs have not been able to prove that agreement scribed in Urdu was actually read over or contents thereof explained to the defendant. Courts below have concurrently held that plaintiffs have not been able to establish due and valid execution of the agreement (Ext.P-3). I see no reason to differ with the said findings. It cannot be said that Courts below committed an error in misreading or misinterpreting the evidence led by the parties. 6. However, there is enough evidence on record, in the form of admissions on the part of the plaintiffs, to establish that defendant had borrowed a 4 sum of `7000/- from the plaintiffs. In fact plaintiffs had prayed for an alternate relief for recovery of `14000/- alongwith interest at the market rate. Courts below thus committed a serious illegality and irregularity in not decreeing plaintiffs’ suit in terms of its alternate prayer. Plaintiffs have been able to establish that only a sum of `7000/- was paid by them to the defendant. The extent of damages caused is not proved. As such plaintiffs’ suit for a sum of `7000/- is decreed alongwith interest @ 7% per annum from the date of institution of the suit till realization. 7. For the aforesaid reasons, the appeal is partly allowed. However, there shall be no order as to costs. 3rd November, 2011 (Sanjay Karol) (C) Judge.