Regular Second Appeal No. 1963 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1963 of 2008 Date of decision : March 08, 2010 Gurjeet Singh ....Appellant versus Balbir Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Arun Jindal, Advocate, for the appellant Mr. SS Joshi, Advocate, for the respondent L.N. Mittal, J. (Oral) This is second appeal by Gurjeet Singh plaintiff who has been unsuccessful in both the courts below. Plaintiff filed suit against respondent Balbir Singh for recovery of Rs 1,97,046/- alleging that the defendant vide agreement dated 22.4.2009 agreed to lift earth from about 6 acres of land of the plaintiff and promised to pay for the same at the rate of Rs 30,000/- per acre for five acres and Rs 12,000/- for 6th acre. In all, the defendant was to pay Rs 1,62,000/- to the plaintiff. Out of it, the defendant had to pay Rs 70,000/- on 20.6.1999, another amount of Rs 70,000/- on 30.11.1999 and the remaining amount of Rs 22,000/- on 30.4.2000. As per agreement, possession of the land was given by the plaintiff to the defendant on 1.6.1999. Earth was to be lifted Regular Second Appeal No. 1963 of 2008 -2- upto 1.4.2001. The defendant lifted earth from the land but did not make payment of the amount for the same as per agreement. The plaintiff accordingly claimed the amount of Rs 1,62,000/- along with interest thereon at the rate of 18% per annum with effect from 20.6.1999. The defendant in the written statement admitted agreement between the parties for lifting of earth by the defendant from the land of the plaintiff against payment of Rs 1,62,000/- in instalments as alleged by the plaintiff. The defendant also admitted that possession of the land was given to him on 1.6.1999. The defendant, however, pleaded that earth was to be lifted till 1.6.2001. The defendant pleaded that he paid Rs 70,000/- to the plaintiff on 29.4.1999, another amount of Rs 70,000/- on 20.6.1999 and the remaining amount of Rs 22,000/- on 30.4.2000 and thus, the entire consideration of Rs 1,62,000/- was paid to the plaintiff. Learned Civil Judge (Junior Division), Patiala vide common judgment dated 25.7.2005 dismissed the aforesaid suit of the plaintiff- appellant Gurjeet Singh and also dismissed a suit filed by respondent Balbir Singh against appellant Gurjeet Singh and his wife Charanjit Kaur. Feeling aggrieved, Gurjeet Singh preferred first appeal against judgment and decree of the trial court. However, learned District Judge, Patiala vide judgment and decree dated 8.1.2008 has dismissed the said appeal. Feeling aggrieved, plaintiff Gurjeet Singh has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Following substantial question of law arises for determination in the instant second appeal:- Regular Second Appeal No. 1963 of 2008 -3- “Whether the courts below have misread the evidence and the finding that the amount of Rs 1,62,000/- was proved to have been paid by defendant to the plaintiff is perverse and illegal and therefore, not sustainable ?” Learned counsel for the appellant vehemently contended that the respondent-defendant has taken contradictory stand. It was pointed out that in the suit filed by respondent, he pleaded payment of Rs 70,000/- on 20.6.1999, again payment of Rs 70,000/- on 30.11.1999 and payment of Rs 22,000/- on 30.4.2000 but in the written statement in the suit filed by the appellant, the respondent-defendant pleaded payment of Rs 70,000/- on 29.4.1999, again payment of Rs 70,000/- on 20.6.1999 and remaining amount of Rs 22,000/- on 30.4.2000 and thus, the defendant-respondent has taken contradictory stand. It was also contended that according to the agreement, payment by the defendant to the plaintiff was to be made against receipt but no receipt had been produced by the defendant regarding the alleged payment. On the other hand, learned counsel for the respondent contended that payments were made by the defendant in presence of witnesses who have supported defendant's case. It was also contended that the plaintiff would not have remained silent for almost two years if no payment had been made to him and the plaintiff would have stopped the work of lifting earth by the defendant. I have carefully considered the rival contentions. Admittedly, according to the agreement, payment was to be made by the defendant to the plaintiff against the receipt. Again admittedly, no receipt was issued by the plaintiff to the defendant regarding Regular Second Appeal No. 1963 of 2008 -4- alleged payments. Consequently, the oral evidence of the defendant regarding alleged payments cannot be accepted. The said evidence is in contravention of the terms and conditions of the written agreement. Admittedly, terms and conditions of the written agreement specifically recite that the payment would be made against receipt. The oral evidence of the defendant regarding alleged payments does not inspire confidence because the defendant would not have made payment without receipt when the agreement specifically stipulated that the payment would be made against receipt. On the other hand, the aforesaid stand of defendant Balbir Singh is highly contradictory. In the written statement in the instant suit, defendant Balbir Singh alleged that he paid Rs 70,000/- on 29.4.1999. However, the first instalment of Rs 70,000/- was payable on 20.6.1999. Similarly second instalment was payable on 30.11.1999 but the defendant alleged that he paid second instalment on 20.6.1999. Such payments cannot be believed to have been made. Moreover, defendant Balbir Singh in his own suit alleged the payment of first instalment of Rs 70,000/- to have been made on 20.6.1999 but in the instant suit, he alleged to have paid the amount of Rs 70,000/- on 29.4.1999. Similarly Balbir Singh in his own suit alleged payment of second instalment of Rs 70,000/- to have been made on 30.11.1999 but in the instant suit no amount was pleaded to have been paid on 30.11.1999 and the second instalment was alleged to have been paid on 20.6.1999. In view of such contradictory stand of defendant Balbir Singh himself, alleged oral payments by him cannot be accepted. The plaintiff could not have been non-suited merely on the Regular Second Appeal No. 1963 of 2008 -5- ground that he filed suit on 24.4.2001 i.e. after 22 months of the land having been handed over to defendant for lifting of earth. Mere non filing of suit for about 22 months would not be sufficient to non-suit the plaintiff. For the reasons aforesaid, substantial question of law framed hereinabove is answered in favour of the plaintiff-appellant. The finding of the courts below is patently perverse, illegal and unsustainable in law and based on misreading of evidence. It is accordingly held that the defendant has not paid the consideration of Rs 1,62,000/- to the plaintiff who is therefore, entitled to recover the same from the defendant with interest thereon at the rate of 12% per annum till the decree of the trial court and at the rate of 6% per annum since the date of decree of the trial court till recovery. For the reasons recorded hereinabove, the instant second appeal is allowed. Judgments and decrees of the courts below are set aside and the suit of plaintiff Gurjeet Singh is decreed for recovery of Rs 1,62,000/- along with interest thereon at the rate of 12% per annum with effect from due dates i.e. 20.6.1999 on the amount of Rs 70,000/-, 30.11.1999 on second instalment of Rs 70,000/- and 30.4.2000 on the remaining amount of Rs 22,000/- till 25.7.2005 the date of decree of the trial court and thereafter at the rate of 6% per annum till recovery, with costs throughout. ( L.N. Mittal ) March 08, 2010 Judge 'tiwana'