IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 441 of 1998. Date of Decision: 26.4.2011. Mani Ram ..Appellant Versus Gobind Ram ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr.I.D. Bali, Senior Advocate with Mr.K.G. Sharma, Advocate. For the Respondent(s): Mr.K.D. Sood, Advocate. Deepak Gupta, J.(oral ) 1. This Regular Second Appeal is directed against the judgment and decree dated 20.5.1998 passed by the learned District Judge, Mandi in Civil Appeal No.84 of 1994 whereby he set-aside the judgment and decree passed by the learned Sub Judge, Ist Class, Karsog decreeing the suit of the plaintiff. 2. Briefly stated, the facts of the case are that the plaintiff alleges that defendant Govind Ram purchased the apple crop of one Sh.Dina Nath (PW-2) for a sum of Rs.19,500/-. The plaintiff alleges that he was a mediator between the two - 2 - and a sum of Rs.1500/- was paid as advance to Dina Nath by the plaintiff. According to the plaintiff, he had promised Dina Nath that in case the defendant defaults in the payment of the amount then he (Plaintiff) would make the payment to Dina Nath. 3. The defendant allegedly plucked the crop from the orchard of Dina Nath and sold the same in the market but did not pay the full amount to Dina Nath. Thereafter, Dina Nath complained to the plaintiff and the plaintiff in the presence of the witnesses paid an amount of Rs.5000/- to Dina Nath on behalf of the defendant and the defendant also entered into an agreement Ext.PW-1/A on 17.8.1992 agreeing to repay this amount to Dina Nath. In addition to this amount, the plaintiff claimed another sum of Rs.3270/- on account of packing material etc. provided for by the plaintiff. On this basis a suit for recovery of Rs.8270/- was filed. 4. The defendant admitted that he had purchased the apple crop of Dina Nath. However, he alleged that when he purchased the crop Dina - 3 - Nath had shown him the orchard of some other person, namely, Dila Ram and when the defendant came to know about this fact then the sale amount was reduced to Rs.17,500/-. The defendant further alleged that he only sold some crop for Rs.5000/- and remaining crop was sold by Dina Nath directly. The defendant further alleged that the agreement Ext.PW-1/A was got signed by him under duress. He denied having received any packing material from the plaintiff. 5. The learned trial Court decreed the suit of the plaintiff for recovery of Rs.5700/- only i.e. Rs.5000/- towards the loan amount and Rs.700/- on account of price of empty apple boxes. Rest of the claim was rejected. An appeal was filed and the learned lower Appellate Court after perusing the entire evidence came to the conclusion that the plaintiff had failed to prove that he had advanced a sum of Rs.5000/- to the defendant or that he had paid Rs.5000/- to Dina Nath on the instructions of the defendant. 6. In the plaint, it was specifically pleaded that on 17th August, 1992 the defendant took Rs.5000/- - 4 - from the plaintiff to pay to Dina Nath. However, while appearing in the witness box, the plaintiff came up with a different version. In his statement, he stated that he did not pay amount to the defendant but to Dina Nath, though on behalf of the defendant. The recital in Ext.PW-1/A is that the defendant had earlier taken Rs.5000/- from the plaintiff which he owed to Dina Nath and therefore agrees to repay the amount within 7 days. The recital in the agreement clearly indicates that no amount was paid on 17th August, 1992. When the defendant had denied receipt of this amount it was for the plaintiff to have shown on which date this amount was paid and to whom. Even the witnesses to the agreement have admitted that no amount has been paid in their presence. Therefore, the lower Appellate Court came to the conclusion that no reliance could be placed on this agreement. 7. The question as to what is the evidentiary value of Ext.PW-1/A is not at all a question of law. It is merely appreciation of evidence. This Court while deciding a second appeal cannot sit over the - 5 - findings of fact arrived at by the Courts below. No question of law much less a substantial question of law arises in this appeal. Therefore, the appeal is dismissed. No costs. April 26, 2011. ( Deepak Gupta ), J. PV