R.S.A. No. 1296 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1296 of 2009 (O&M) Date of decision: 24.03.2009 Major Singh ....appellant versus Harchal Singh ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. I.S. Brar, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) C.Ms. No. 3806-C & 3808-C of 2009 Allowed as prayed for. R.S.A. No. 1296 of 2009 This regular second appeal is directed against the judgment and decree dated 8.11.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent stands decreed. The plaintiff brought a suit on the pleadings that by way of agreement to mortgage, the appellant/defendant had agreed to mortgage 64 kanals of land with possession, and by way of earnest money, a sum of Rs.4,00,000/- was paid. The balance amount was to be paid at the time of execution of mortgage deed and handing over of the possession. R.S.A. No. 1296 of 2009 (O&M) -2- It is the case of the plaintiff/respondent that in spite of stipulation in the mortgage deed, possession was not handed over. The plaintiff in addition also advanced another sum of Rs.40,000/- as loan against the pronote and receipt. The suit was contested in which a plea was taken by the appellant/defendant that, in fact, out of sum of Rs.4,00,000/-, a sum of Rs.3,60,000/- was returned, and to secure the balance amount of Rs.40,000/- pronote was executed. In view of the stand taken in written statement, the factum of execution of agreement to mortgage and receipt of Rs.4,00,000/- stood proved. The appellant/defendant on other hand did not choose to lead any evidence to prove the assertion that a sum of Rs.3,60,000/- had been paid back. The learned Courts below held that the defendant/appellant has failed to prove the case of return of money, and on appreciation of evidence, the suit was decreed, by recording a concurrent finding of fact. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law: - "1. Whether the suit filed by the plaintiff/respondent could be decreed when from the facts and circumstances, it is proved that a sum of Rs.3,60,000/- had been paid back while taking back possession of the land in dispute? 2. Whether on the facts and circumstances of the case, the story of the plaintiff/respondent that a sum of Rs.40,000/- was advanced towards loan against the pronote, could be believed? R.S.A. No. 1296 of 2009 (O&M) -3- 3. Whether there was mis-joinder of cause of action in this suit?" In support of substantial questions of law, the learned counsel for the appellant contends that pleadings and evidence on record, show that a sum of Rs.3,60,000/- was received back by the plaintiff, as there was no occasion for the plaintiff to have advanced the additional amount of Rs.40,000/- even though the possession of the mortgaged land was not handed over. It is, thus, contended that neither there was possibility of advancement of a sum of Rs.40,000/- nor the findings recorded by the learned Courts below can be upheld being perverse, and outcome of misreading of pleadings and evidence on record. It is the case of the learned counsel for the appellant that in any case the learned Courts below should have passed decree for specific performance of agreement to mortgage, and should not have decreed the suit for recovery. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant. While plaintiff proved his case by leading cogent evidence, the defendant/appellant failed to lead any evidence to prove the stand that a sum of Rs.3,60,000/- was returned to the plaintiff/respondent. The finding recorded on appreciation of evidence cannot be set aside merely on the presumption, as contended by the learned counsel for the appellant. Other contention that decree for specific performance should have been ordered, is also liable to be rejected, as it is the discretion of R.S.A. No. 1296 of 2009 (O&M) -4- the Court in the case of specific performance either to enforce agreement or give an alternative relief of recovery. Rather the relief of recovery is more advantageous to the defendant/appellant than enforcement of agreement to mortgage. The substantial questions of law framed are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge March 24, 2009 R.S.