MUKHITIARA Vs. RISALA

JUDGEMENT

(1.) The plaintiff filed a suit for the recovery of Rs. 12,000/- as principal and Rs. 500/- as interest thereon on the basis of a Bahi entry. The trial Court decreed the suit for the recovery of Rs. 4250/- alongwith interest from the date of institution or the suit till realisation but the lower appellate Court on appeal by the plaintiff set aside the judgment and decree of the trial court and decree the suit of the plaintiff for the recovery of Rs. 12,500/- along with interest. It is against this judgment and decree of the lower appellate Court that one of the defendants preferred this appeal.

(2.) The facts giving rise to the present appeal are that the plaintiff filed a suit on the allegation that Mukhtiara agreed to sell 5 Killas of land for Rs. 18,000/- on 5.3.1971 & he received Rs. 12,000/- as advance Mukhtiara executed awirting in the Bahi of the plaintiff which was thumb marked by him after affixing the revenue stamps Gobind father of Mukhtiara had also thumb marked the said writing as a surety. The sale deed was to be executed within 3 months & the balance sale consideration of Rs. 6000/- was to be paid at the time of execution of the sale deed. The further allegation of the plaintiff is that Mukhitiara did not sell the land in question to him and rather sold the same to same other person. Since it was agreed upon between Mukhtiara-defendant No. 1 and the plaintiff that in case the land in question was not sold to the latter, the former would be liable to pay Rs. 12,000/- to him, the plaintiff filed a suit for the recovery of the aforesaid amount along with interest from the date of advance till the date of decree which came to be Rs. 500/-. The defendants contested the suit by filling a written statement. The case set up by them was that they executed a Bahi entry for Rs. 9000/- though only a sum of Rs. 3750/- was paid and the balance amount was agreed to be paid on some later date. They executed the entry as they needed money for payment of some amount to the Land Mortgage Bank. Sometime after they were in need for money and they executed an entry for Rs. 2000/- but the plaintiff at this time did not pay any thing but agreed to pay Rs. 8250/- after deducting the amount of Rs. 3750/- already to one Bhartu for Rs 15,000/- They further submitted that a suit for specific performance has not been brought and the writing in dispute was not admissible in evidence.

(3.) The trial Court after appraisal of evidence led before it decreed the suit for the recovery of Rs. 4250/- with interest only as the defendants had, during the course of evidence admitted that this amount had been paid to them although in the written statement they had alleged that only a sum of Rs. 3750/- had been paid. The learned lower appellate Court, however, after appreciation of entire evidence on the record, decreed the plaintiff's suit for5 the whole amount of Rs. 125000/-.