'^' ^^.Q ^o^ ? IN THE HIGH COURT OF JUDICATURE AT BILASPUR SECOND APPEAL N0. _^_ /2011 APPELLANT (Defendant) Vs RESPONDENT (Plaintiff) Durgeshwar Prasad Nishad, son of Latelram Nishad (Kenwat), aged about 47 years, Occupation- Agriculturist & Supervisor in Shahkari Bhumi Vikas Bank, Branch at Pandariya, resident of Village Saigona, District Kabirdham (CG) Tanguram, son of Late Thanwar Ja^iswal, aged about 72 years, Occupation Agriculturist, resident of Village Motiyari, Teshil Kawardha, District Kabirdham (CG) L Civil Suit & First appeal valued at Rs.43,600/- & court fee affixed Rs. 5080/^. This appeal is also valued at Rs.43,600/- & court fee affixed Rs.5080/-.^. The appeal is within limitation. APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCBDURE,1908 HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No.86 of 20 11 APPELLANT: Defendant RESPONDENT: Plaintiff Durgeshwar Prasad Nishad -Versus- Tanguram Present Shri Rajeev Shrivastava with Shri Malay Shrivastava, counsel for the appellant. Sinele Bench: Hon'ble Shri Prashant Kumar Mishra, J. ORAL ORDER (20-6-2011) 1. Heard. 2. Challenge in this appeal under Section 100 of the Code of Civil Procedure has been made to the reversing judgment and decree passed by the 1st Appellate Court directing refund of amount of Rs.43,600/- to the plaintiff/respondent. 3. The plaintiff preferred a suit for specific performance of the agreement dated 10-11-2003 with respect to the land bearing Khasra No.31/1 (Part) area 0.09 hectare situated at village Saigona, Tehsil Kawardha, District Kabirdh^m. In the alternative, the plaintiff prayed for refund of amount of consideration which he has paid to the appellant/defendant. 4. The trial Court dismissed the suit, however, the 1st Appellate Court has partly allowed the appeal and as a consequence, the suit has been allowed in part directing refund of amount of consideration. 5. The case of the plaintiff was based on agreement dated 10-11-2003. This agreement has been signed by the appellant and attested by two witnesses. In his written statement, the appellant admitted his <^ signature, however, he denied that he received amount of Rs.43,600/- on the date of execution of agreement. 6. On appreciation of evidence, the 1st Appellate Court has recorded a finding that the trial Court wrongly treated agreement to be a document which requires attestation in law and has wrongly drawn adverse inference against the plaintiff for non examination of any attesting witness. It has further been found by the Appellate Court that one of the attesting witnesses namely, Abhimanyu has been examined by the defendant who also admits his signature in the document. But his statement that money was not paid to the defendant has been disbelieved on the ground that he had gone to the house of the defendant for securing payment as daily wager for 150 days which the defendant had not paid to him. The notary who has notorized the agreement has been examined as PW-2. The 1st Appellate Court has obser^ed that the said notary is an independent witness and his statement in support of execution of the document cannot be disbelieved. 7. While refusing to pass decree for specific performance in the facts and circumstances of the case, 1st Appellate Court has directed refund of amount of consideration which in view of the evidence available on record, is not found to be illegal or perverse. 8. Learned counsel for the appellant submit that 1st Appellate Court has wrongly construed the provisions contained in Section 68 of the Evidence Act. 9. Having gone through the agreement and the provisions contained in ~—Section 68 of the Evidence Act, this Court does not find any substance ^in the argument raised by the appellant. An agreement to sell does not :-^/\,. '\ ";n%^ ^zy ^^—^" Barve require attestation in any law, therefore, the provisions of Section68 of the Evidence Act are not attracted and the 1st Appellate Court has not committed any illegality while rejecting the said argument. 10.No substantial question of law arises for determination in this appeal. Consequently, the appeal fails and is hereby dismissed. Sd//- prashantKumarMishra Judge