JUDGMENT
Satish Kumar Mittal, J.
1. This regular second appeal has been filed by the defendants against the judgment and decree passed by both the courts below vide which the alternative suit of the plaintiff (respondent herein) for recovery of Rs. 8,000/- by way of return of earnest money advanced to the defendant under the agreement in question was decreed.
2. The plaintiff filed the present suit for specific performance qua the agreement dated 27.6.1979 Ex.P1 vide which the defendant agreed to mortgage his land measuring 19 bighas fully detailed in the head note of the plaint in favour of the plaintiff for a consideration of Rs. 8,000/-. At the time of execution of the said agreement, the entire consideration of Rs. 8,000/- in cash was paid to the defendant. It was inter alia, mentioned in the agreement that possession of the land agreed to be mortgaged, was delivered to the plaintiff. It was further agreed that the defendant would return the requisite consideration of Rs. 8,000/-, as mentioned in the agreement, by 15.6.1980 and get back the disputed land or would execute regular mortgage deed in favour of the plaintiff in respect of the mortgaged land. In case the defendant failed to execute the mortgage deed in terms of the agreement, he was liable to pay the earnest money of Rs. 8,000/-paid to the defendant under the said agreement back with Rs. 2,000/- as damages. It was pleaded by the plaintiff that though it was mentioned in the agreement that the possession of the land was given to him but actually he was not put into the possession of that land and the same remained under the possession of the defendant. The plaintiff further pleaded that in spite of the registered notice given to the defendant for returning earnest money of Rs. 8,000/- advanced to him, he did not care to reply that notice. Hence, the instant suit was filed seeking specific performance of the agreement regarding mortgage deed of the land with an alternative prayer to return the earnest money of Rs. 8,000/- advanced to the defendant under the said agreement.
3. Defendant contested The suit by pleading that he had neither executed any such agreement nor he received any consideration thereunder. He pleaded that as he did not agree to mortgage any land in favour of the defendant, therefore, question of delivering possession to the defendant did not arise at all. it was further pleaded that he and his father earlier executed an agreement on 1.6.1978 in favour of the son of the plaintiff but the amount under the said agreement was returned subsequently on 14.6.1979. It was also pleaded that a similar writing was made on 5.6.1979 and the amount under the said writing was also repaid to the plaintiff on 14.6.1979. It was specifically denied that the present agreement dt. 27.6.1979 was executed by him at all.
4. On the pleadings of the parties, the learned trial court framed the following issues;-
1. Whether the defendant executed the impugned agreement regarding the mortgage of the disputed land and obtained a sum of Rs. 8,000/- as earnest money thereunder? OPP
2. Whether the plaintiff has been ready and willing to perform his part under the impugned agreement? OPP
3. Whether the impugned agreement is a forged and fictitious document and is the result of fraud, if so, its effect? OPD
4. Whether there was any previous agreement between the parties, if so, the detail of the agreement and its effect? OPD
5. Whether the impugned agreement is void and illegal and not enforceable in the court, if so, its effect? OPD
6. Relief.
5. Both the courts below have decreed the alternative suit of the plaintiff for recovery of earnest money of Rs. 8,000/- which was advanced by him to the defendant under the agreement in question Ex.P1. A finding of fact that has been recorded by both the courts below that the plaintiff had duly proved the execution of the agreement Ex.P1 Ramesh Krishan as well as attesting witness PW2 Satya Pal. Both the witnesses have categorically stated that the aforesaid agreement was duly executed and the payment mentioned thereunder was received by the defendant. The courts below have also taken into consideration the statement of the defendant which he made in cross examination whereby he admitted his signatures on the agreement Ex.P1 and also the writing made by him at mark ‘A’ in his hand to the effect that “8000 rupaye wasul paye (Received Rs. 8,000/-_”. the defendant could not offer any explanation, whatsoever, as to how he happened to sign this agreement and further as to how he admitted the receipt of Rs. 8,000/-. This admission of the defendant was duly taken into consideration by the courts below which clearly established that there was no forgery of the document nor the same can be said to be result of fraud. After perusing the findings recorded by both the courts below in this aspect of the matter, I do not find any illegality or infirmity in the same, he said finding is pure finding of fact which cannot be gone into by this court in regular second appeal. Learned counsel for the appellant argued that the learned trial Court decided issue No. 4 in favour of the defendant and a finding was recorded that the agreement Ex.P1 was executed in lieu of the previous agreement. He submitted that actually the defendant did not receive any amount under the agreement Ex.P1, therefore, the question of refunding the said amount to the plaintiff does not arise.
6. I have considered the submissions of the learned counsel for the appellant and am of the opinion that there is no force in the same. The finding on issue No. 4 has been reversed by the first appellate court by observing that there was relevancy of the previous two agreements executed by the defendant in favour of the son of the plaintiff. The defendant did not plead that the said agreement was executed by him in lieu of the previous two agreements and he did not receive any amount as alleged in the agreement Ex.P1. His pleaded case was that he did not at all execute the agreement in question nor he received any amount under the said agreement and the same is a fabricated documents, but when the defendant appeared in the witness box, he took a different stand. He admitted the signatures as well as the writing made in his hand vide which he has written that he received a sum of. Rs. 8,000/- from the plaintiff. Agreement Ex.P1 has been duly proved by the plaintiff by examining its scribe as well as the attesting witness. By taking into consideration the aforesaid evidence and the said admission on the part of the defendant, both the courts below have held that the execution of the agreement Ex.P1 and the passing of the consideration money of Rs. 8,000/- was duly proved. In view of the said findings of fact, I do not find any force in the contention raised by the learned counsel for the appellant.
In view of the aforesaid, I do not find any merit in the instant appeal. The same is consequently dismissed with no order as to costs.