Smt. Vishaka Awadhiya And ORS v. Onkar Prasad Awadhiya

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR FA No. 10 of 2004 Reserved on : 08.08.2018 Delivered on : 06.09.2018 1.

Smt. Vishaka Awadhiya W/o Late Baijnath Prasad Awadhiya, aged about 62 Years, R/o Near Satyanarayan Temple, Raipur (C.G.) 2.

K.N. Awadhiya S/o Late Baijnath Prasad Awadhiya, aged about 40 Years, R/o Near Satyanarayan Temple, Raipur (C.G.) ---- Appellants

Versus

Onkar Prasad Awadhiya S/o Late Raghunath Awadhiya, R/o Awadhiya Para, Raipur (C.G.) ---- Respondent For Appellants :

Mr. B.P. Sharma, Advocate & Ms. Prachi Agrawal, Advocate.

For Respondent :

Mr. Sachin Nidhi, Advocate.

Hon'ble Shri Justice Ram Prasanna Sharma CAV JUDGMENT 1.

This first appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against judgment/ decree dated 21.11.2003 passed by 9th Additional District Judge (FTC), Raipur (C.G.) in Civil Suit No. 18-B/2003, wherein the said court decreed the suit of the respondent for repayment of Rs. 90,000/-.

2.

The respondent filed a suit against the original appellant (Late Baijnath Prasd Awadhiya) alleging that Rs. 90,000/- was given to him as loan for construction of house. Loan was to be repaid upto March, 2001, but it was

not repaid and notice was served on him for repayment. 3.

As per case of the appellants, one land bearing Khasra No. 1180 area 2.90 hectares was sold to one Banaram Israni for a cash consideration of Rs. 1,50,000/- and from that amount Rs. 90,000/- was paid to Baijnath Prasad Awadhiya as per promise of the respondent and the amount is not loan. 4.

The core issue for consideration of this court is whether the amount was loan or it was given out of sale consideration of land as mentioned above. 5.

Getting amount of Rs. 90,000/- from respondent is admitted. Story put-forth by the original appellant before the trial court regarding amount of sale consideration for land is not mentioned in his written statement. Again there is no evidence that any document regarding sale was executed for cash consideration of Rs. 1,50,000/- for the said land. Alleged purchaser of the land named Banaram Israni was not examined by the original appellant and no document is produced before the trial court in this regard. 6.

In absence of any evidence and in absence of pleadings to that effect, the trial court is right in holding that original appellant received amount of Rs. 90,000/- as loan and he is under obligation to repay the same. 7.

The finding arrived at by the trial court is based on proper marshaling of oral and documentary evidence adduced by both side before the trail court and this Court has no reason to interfere with the finding recorded by the trial court. The appeal without substance is liable to be dismissed. 8.

Accordingly, the decree passed against the appellants and in favour of respondent on the following terms and conditions: (i) The appeal is dismissed with cost.

(ii) The appellants shall bear cost of the respondent throughout.

(iii) Pleaders' fee, if certified be calculated as per certificate or as per schedule whichever is less.

(iv) A decree be drawn accordingly.

Sd/- (Ram Prasanna Sharma) Judge Arun