CFA 74/87 Balaram Vs. Lachman through LRS. and others (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil First Appeal No.74/1987 Balaram Vs. Lachman through LRs and others Date Of Judgment :: 5th Jan,2010 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. R.K. Mathur, for appellant. Mr. M.I. Khan, for respondents. ...... By the Court :- This is plaintiff-appellant's first appeal under section 96 of the Code of Civil Procedure against the judgment and decree dated 23/2/1987 passed by Additional District Judge No.1, Alwar in Civil Suit No.30/1984, whereby instead of granting decree for specific performance of contract, a decree for a sum of Rs.8,000/- along with interest has been CFA 74/87 Balaram Vs. Lachman through LRS. and others (2) passed. 2. The parties hereinafter shall be referred in the manner as they were arrayed in the plaint. 3. Brief facts giving rise to this appeal are that the plaintiff Balaram filed a suit against his father-in-law Lachman with the averments that defendant was a needy and therefore he sold out his land bearing khasra no.367 measuring 1 bigha 8 biswas situated at village Bakhera, through the agreement to sell for a consideration of Rs.15,000/-, out of which Rs.9,000/- were paid and rest amount was to be paid to the defendant at the time of execution of the sale deed before the Sub-Registrar but due to increase in the market value of the said agricultural land, the defendant deviated from the agreement whereas the plaintiff was always ready to pay remaining amount CFA 74/87 Balaram Vs. Lachman through LRS. and others (3) and get the sale deed registered in his favour. 4. The defendant in his written statement stated that he is an illiterate person and was in a need of money for marriage of his son Prakash which was fixed for 15/5/1983, therefore, he took Rs.5,000/- as a loan for that purpose and also Rs.3,000/- at the time of marriage of his daughter Phool from plaintiff Balaram who happens to be his son-in-law. It was further averred that he never sold out his land by agreement to sell but at the insistence of the plaintiff because plaintiff was not having money lending licence and he was not ready to advance the loan on execution of pronote and further the defendant was having faith upon his son-in-law that he will not commit any mischief and misuse the document, he executed the said document. CFA 74/87 Balaram Vs. Lachman through LRS. and others (4) 5. On the basis of the pleadings, trial court framed following issues :- 1.आया वादी से ूितवादी ने आराजी खसरा न0 367 एक बीघा आठ िबःवा वाके सीवं भाकेडा को 15000/- रुपया में बय करने का मुहायदा िद0 12-5-83 को िकया व ्9000/- रु0 ूाप्त कर िलये | {वादी} 2.आया वादी तकमील मुहायदा बय कराने को तैयार व तत्पर ् था | {वादी} 3.आया ूितवादी ने वादी के हक़ में बयनामा की तकमील िद0 10-5-84 से पहले नहीं कराई अत: वादी ूितवादी से तकमील मुहायदा बय कराने का अिधकारी है | {वादी} 4.आया आराजी मुतनाजा ूितवादी की परम्परागत कृिष भूिम हैं और ूितवादी के पास पािरवािरक सम्पित है इसिलए ूितवादी को अकेले इस आराजी को बय करने का अिधकार नहीं था | {ूितवादी} 5.आया ूितवादी ने अपनी पुऽी व पुऽ के िववाह का ् 8000/- रुपया बतौर कजार् िलया था वो चूँिक वादी के पास साहकारी का ू लाइसेंस नहीं था अत: कजेर् की बाबत यह िलखतम किथत इकरारनामा िलखा था | ूितवादी 8000/- रुपया अदा करने को तैयार हैं | {ूितवादी} CFA 74/87 Balaram Vs. Lachman through LRS. and others (5) 6.आया आराजी मुतनाजा पर वादी का कब्ज़ा है | 7.आया वादी मुतािबक़ वाकेयात मुन्दजेर् जवाबदावा के 9000/- रुपया असल वो वािजब ब्याज िदलाया जाना वािजब होगा | 8.आया राधेँयाम, ूकाश व बल्लूराम आवँयक पक्षकार ् मुक़दमा हैं | 9.आया दादरसी क्या होगी | 6. Issues no. 1 to 4 have been decided in favour of the plaintiff but issue no.5 has been answered in favour of the defendant. Therefore the trial court instead of decreeing suit for specific performance awarded a money decree of Rs.8,000/- along with interest. Hence, this appeal by the plaintiff. 7. During the pendency of this appeal, defendant expired, therefore, his legal representatives were taken on record. 8. Heard learned counsel for the CFA 74/87 Balaram Vs. Lachman through LRS. and others (6) parties and perused the impugned judgment and other material available on the record. 9. It was inter alia contended that trial court has found proved Ex.1 & 2-agreement to sell and receipt of money respectively, therefore, there was no occasion for the trial court to dismiss the suit for specific performance. It was then submitted that when the terms of the contract or agreement are reduced in writing then oral evidence is not admissible in regard to the said documents whereas the trial court committed serious error in accepting contradictory evidence adduced by the defendant in regard to the terms of the contract and also wrongly believed the documents Ex.A-1 & A-2 which were in fact manufactured by the defendant with the help of his another son-in-law DW3 Mannu Ram who is also a real brother CFA 74/87 Balaram Vs. Lachman through LRS. and others (7) of plaintiff having personal differences with him. 10. Per contra, learned counsel for the respondents supported the findings of the trial court and contended that defendant Lachman was a poor illiterate person who never sold his land to his son- in-law Balaram by agreement to sell but only executed a document for securing the loan amount which he borrowed from plaintiff Balaram at the time of marriage of his daughter Phool and thereafter to meet the urgent need of money for marriage of his son Prakash. It was further submitted that he received the loan amount of Rs.3,000/- at the time of marriage of his daughter Phool and thereafter Rs.5,000/- in piece-meals at the time of marriage of his son Prakash and the details thereof have been noted down in the diary maintained by DW3 Mannu Ram, CFA 74/87 Balaram Vs. Lachman through LRS. and others (8) brother of the plaintiff, and this fact has amply been proved by the witnesses. 11. I have considered the rival submissions made at the bar. 12. The only point for consideration before this Court is whether the document of agreement to sell of land has been executed by defendant to secure the loan amount ? 13. According to plaintiff PW1 Balaram, he purchased the disputed land for a consideration of Rs.15,000/- through the agreement to sell and paid Rs.9,000/- in advance and remaining Rs.6,000/- were to be paid at the time of registry but the defendant did not execute the registered sale deed in his favour. His another witness PW2 Ram Prakash who is a scribe of Ex.1-agreement to sell and Ex.2-receipt stated that both Lachman and Balaram came to him and at their request he prepared CFA 74/87 Balaram Vs. Lachman through LRS. and others (9) the documents and defendant Lachman signed upon both the documents in his presence but he admitted that Lachman was not known to him and Rs.9,000/- were not given to defendant Lachman in his presence. 14. On this issue, the defendant Lachman apart from himself, examined DW2 Munshi Ram and DW3 Mannu Ram. 15. The defendant in his statement categorically denied and stated that he never sold his land to the plaintiff but he executed the document only for securing the loan amount of Rs.8,000/-. He further stated that he took the loan of Rs.3,000/- at the time of marriage of his daughter Phool and thereafter again he received Rs.5,000/- as loan from the plaintiff in fractions at the time of marriage of his son Prakash and since plaintiff was not having money lending licence, therefore at the insistence of his son-in-law he CFA 74/87 Balaram Vs. Lachman through LRS. and others (10) executed the disputed document. He further clarified that he only received Rs.8,000/- in total but executed a document of Rs.9,000/- with the understanding that he will take Rs.1,000/- from the plaintiff when it would be required. He further stated that plaintiff refused to accept the loan amount along with interest when he went to him along with Munshi Ram, Mannu Ram, Moti Ram and Ram Lal after about one year. According to DW2 Munshi Ram, plaintiff refused to accept Rs.8,000/- and interest thereupon and told that now the loan amount with interest has become Rs.12000- 13000. DW3 Mannu Ram in his statement stated that plaintiff Balaram is his real brother and defendant Lachman is his father-in-law. He further deposed that Lachman borrowed Rs.5,000/- in four installments from plaintiff Balaram for CFA 74/87 Balaram Vs. Lachman through LRS. and others (11) the marriage of his son Prakash. He further stated that he himself kept and maintained the account of receipt and expenditure Ex.A-1 during the marriage of Prakash and he also received some installments of the loan amount directly from Balaram which was advanced to the defendant. He further deposed that plaintiff Balaram refused to accept the loan amount when after about one year, defendant Lachman went to return the same. He also stated that his father-in-law Lachman did not sell the land to his son- in-law Balaram. 16. On evaluation of the evidence led by both the parties, it is not disputed rather it has been admitted by the defendant from the beginning that he executed the documents Ex.1 & 2 in favour of the plaintiff who happens to be his son-in-law. He also admitted that he CFA 74/87 Balaram Vs. Lachman through LRS. and others (12) received a total sum of Rs.8,000/- from the plaintiff, out of which Rs.3,000/- at the time of marriage of his daughter Phool and Rs.5,000/- were taken by him in fractions at the time of marriage of his son Prakash. Mannu Ram DW3 who is real brother of plaintiff endorsed the statement of defendant Lachman and has proved Ex.A-1 & A-2 which were in his own handwriting and contain the entries of loan amount received and expenditure incurred in the marriage of Prakash, son of the defendant. In my considered view, the trial court has not committed any mistake in relying upon the statement of defendant Lachman and Mannu Ram DW3, brother of the plaintiff, on this issue and there appears to be no good reason to disturb the finding of the trial court that agreement to sell Ex.1 has been executed only to secure the loan amount of CFA 74/87 Balaram Vs. Lachman through LRS. and others (13) Rs.8,000/-. 17. In view of the above, I do not find any illegality or impropriety in the findings arrived at the by the trial court. Therefore, there is no force in this appeal and the same is liable to be dismissed. 18. Consequently, this appeal is hereby dismissed. (J.R. Goyal),J. VS Shekhawat/- Jr. P.A.