1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Siraz Ahmed V/s. Mirza Kahn (S.B. Civil First Appeal No.51/2010) S.B. Civil First Appeal Under Section 96 of Civil Procedure Code Date of Order :: July 19, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Rohan Jain for the appellant. The petitioner is aggrieved by the judgment dated 06.07.2009 passed by the learned Additional District & Sessions Judge, Chabra, District Baran whereby the learned Judge has decreed the suit in favour of the plaintiff, Mirza Khan; the appellant-defendant has challenged the same before this Court. It is the case of the petitioner that an agreement entered into between the parties has not been proven either by the plaintiff or by his witnesses. According to Mr. Rohan Jain, the learned counsel for the appellant, Since P.W.2, Murad and P.W.3, Brijesh Kumar, clearly stated in their cross-examinations that they are not in a position to 2 tell the name of the author of the agreement, the said agreement has not been proven. Thus, the learned trial Court has erred in relying on the testimonies of P.W.1, Mirza Khan, P.W.2, Murad and P.W.3, Brijesh Kumar and upon the agreement which was allegedly entered into between the defendant-appellant and the plaintiff- respondent. In order to buttress this contention, the learned counsel has submitted the testimonies of P.W. 1, Mirza, P.W.2, Murad and P.W.3 Brijesh. Heard the learned counsel and perused the testimonies placed before this Court. P.W.1, Mirza, in his examination-in-chief, clearly states that for his own personal need as well as for the need of his household, Saraj had borrowed Rs.40,000/-. On 28.09.2005, he entered into an agreement before the witnesses, and he had accepted the fact that he would repay the said amount within a period of two years along with the interest @ 2% per month. In case, the said amount were not returned, the plaintiff would be entitled to take over the possession of his land in Khasra No.1366 measuring Rakba 1 Bigha. A bare perusal of his cross- examination clearly reveals that this witness has not been demolished in his cross-examination. Thus, there is no 3 reason for not believing the said witness. Murad (P.W.2) clearly states in his examination- in-chief that Saraj had entered into an agreement in front of him as well as in front of Brijesh. He further states that he had signed the said agreement as a witness. Although, in his cross-examination, he does admit that he does not know the author of the agreement, yet simultaneously states that agreement was signed in front of him. Merely because, he cannot reveal the author of the agreement, it does not mean that he is unable to testify about the contents or about the veracity of the agreement. He clearly states that on 28.09.2005 Saraj had bought the stamp paper. He further states that it is incorrect that paper was brought by Brijesh Kumar. He also stated that the transaction had taken place in front of him. Thus, he has proven the agreement. Similarly, Brijesh Kumar (P.W.3), in his cross- examination, clearly states that the agreement was drafted in front of him, although he is unable to state the name of the author of the agreement. He further states that in order to sign the said agreement, he was called by Saraj. He further states that the transaction had taken place in front of him. Therefore, the contention raised by the learned 4 counsel for the petitioner that merely because the author of the agreement is unknown, it should be concluded that the agreement has not been proven is baseless. Both the independent witnesses have stated that the agreement was entered into between the parties before them. They further clearly stated that the transaction of the loan amount had occurred before them; therefore, there is no reason to disbelieve their testimony. A bare perusal of the impugned judgment also clearly reveals that the learned Judge has meticulously discussed the evidence and has clearly appreciated it. Hence, there is neither any illegality, nor any perversity in the impugned judgment. Thus, this appeal is devoid of any merit; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.Asopa/-