DAINABI Vs. P M ABBAS

JUDGEMENT

(1.) Appellant is defendant in O.S.95/01 on the file Munsiff court, Kasargod. Respondent is the plaintiff. Under Ext.A1 agreement for sale, respondent agreed to sell plaint schedule property for a total consideration of Rs.1,85,000/-, on 20/1/2000. Rs.15,000/- was paid as advance. Respondent contended that thereafter Rs.5,000/- was paid on 25/1/2000, Rs.35,000/- was paid on 10/2/2000 and Rs.5,000/- was paid on 20/4/2000 and altogether Rs.60,000/- was paid towards the sale consideration and appellant failed to perform the agreement. Respondent sent Ext.A2 notice calling upon appellant to perform the agreement. Appellant under Ext.A3 reply disputed the payment of Rs.5,000/- on 10/4/2000. Respondent contended that appellant violated the terms of the agreement and is therefore entitled to realise the advance paid. Appellant contended that there was a mediation and he paid Rs.45,000/- out of Rs.55,000/- remained and balance was adjusted towards damages sustained. According to appellant Rs.25,000/- was paid on 21/6/2000 under Ext.B2 receipt and under Ext.B3 receipt Rs.15,000/- was paid on 23/8/2000 and therefore respondent is not entitled to decree sought for.

(2.) Learned Munsiff on the evidence of PW1 and Dws.1 and 2 and Exts.A1 to A3 and Exts.B1 to B3 disbelieved the case of respondent with regard to payment of Rs.5,000/- on 10/4/2000. Learned Munsiff also found that Exts.B2 and B3 receipts were not executed by respondent and there is no evidence to prove the payment of Rs.40,000/- as alleged by appellant. Therefore, suit was decreed for realisation of Rs.55,000/- with interest at 6% per annum. Appellant challenged that decree and judgment before Sub court, Kasargod in A.S.99/02. Learned Sub Judge on re- appreciation of evidence confirmed the decree and judgment and dismissed the appeal. It is challenged in this appeal.

(3.) Learned Munsiff and learned Sub Judge elaborately considered the evidence. Ext.A1 agreement for sale was admitted. Payment made by respondent and received by appellant to the tune of Rs.55,000/- was also admitted. Though respondent further contended that there was a payment of Rs.5,000/-, courts below did not accept the same. Though appellant contended that the agreement was violated by respondent and therefore there was a mediation and Rs.15,000/- was adjusted towards the damages sustained no evidence was adduced to prove mediation or damages allegedly sustained. It was the case of appellant that under Exts.B2 and B3, Rs.40,000/- was paid. The question is whether appellant has paid any such amount and respondent received it. Relying on Exts.B2 and B3 receipts and evidence of Dws.1 and 2, it was argued that discharge was proved. Learned Munsiff and learned Sub Judge on comparing the signature seen in Exts.B2 and B3, found that the signatures are not that of respondent. If appellant is not satisfied with the comparison of signature by the court, she could have sent Exts.B2 and B3 to an expert to get the opinion of expert. In the absence of any such evidence, learned Munsiff and learned Sub Judge compared the signature seen in Exts.B2 and B3 and arrived at a conclusion. That finding is a finding of fact. Both the courts accepted the case of respondent and disbelieved the case of appellant that Rs.40,000/- was not paid. Appreciation of evidence by the trial court and first appellate court was proper and not perverse. Exercising the jurisdiction under Section 100 of Code of Civil Procedure. Evidence cannot be reappreciated. No question of law much less any substantial question of law is involved in this case. Second appeal is dismissed in limine.