D.B. Lal, J.
1. This is defendant's second appeal and is directed against the judgment and decree dated 9th May, 1968 of the District Judge, Kangra.
The plaintiff Nasib Singh came to Court with the allegations, that he was tenant in possession of 16 Kanals, 16 Marias of land described in the plaint under the landlords Subhash Chander and Jaipal. The said landlords sold the disputed land to Rani Sarla, defendant, at a consideration of Rs. 3500/-. The purchaser approached the plaintiff to give up possession. An agreement was reached on 31-12-60 to the effect that Rani Sarla would sell 4 Kanals out of the land to the plaintiff at a consideration of Rs. 200/- and the plaintiff would retain possession over this part of the land and would give up possession for the remaining part. The agreement was executed on 31-12-1960 and the plaintiff having paid Rupees 200/- to Rani Sarla, surrendered possession for the remaining part of the land and retained possession over 4 Kanals. The mutation entries were also made in the revenue papers. The sale deed was to be written within a fixed period of time. The defendant -- Rani Sarla -- later on, did not execute the sale-deed and hence the plaintiff sought for a specific performance of the contract of sale.
2. The defendant -- Rani Sarla --contested the suit on the allegations, that the plaintiff received Rs. 200/- from her and surrendered possession of the entire land which was in his cultivation. She never executed any agreement on 31-12-60 in favour of the plaintiff and that the suit was not maintainable.
3. The trial Court found in favour of the plaintiff and decreed the suit. Similar has been the finding of the first appellate Court. The defendant Rani Sarla has now come up in second appeal.
4. It is well understood, that in second appeal the findings of facts would not be set aside, unless a substantial error or defect in the procedure is pointed out so that it could be stated that the said defect produced error in the decision of the case upon merits. As evident, no point of law is involved, nor could it be stated that the Courts below have failed to determine any material issue of law or usage having the force of law. It has been found, as facts in the case, that the agreement dated 31-12-60 was executed and the terms and conditions of this agreement are too clear for any dispute. The defendant-appellant pleaded on the basis of a receipt (Ex. D. 1) dated 4-12-60 that the plaintiff had received Rs. 200/- from her. Upon evidence on record, both the Courts below have found this receipt not to be genuine and again a finding of fact was given that the plaintiff never received Rs. 200/- from the defendant, nor did he agree for surrender of his land in lieu thereof. In fact, the circumstances existed against the receipt (Ex. D. 1) inasmuch as for the sum of Rs. 200/- the entire area of 16 Kanals, 16 Marlas could not have been surrendered. Moreover, if such a receipt was executed, there was no necessity to have entered into the agreement dated 31-12-60. The 'Rabi' entries of 1961 in the 'jamabandi', proved that the land was already vacated by the plaintiff and there was no necessity for the agreement dated 31-12-60. The receipt (Ex. D. 1) was itself filed at a very late stage and its date was not even given in the written statement. These circumstances belied the genuineness of the receipt and the same was rightly rejected by the Courts below.
5. The oral evidence which has been amply discussed by the first appellate Court, also leads to the inference that the agreement dated 31-12-60 was executed between the parties and that the plaintiff is entitled to the relief of specific performance.
6. In this view of the matter, the points at issue between the parties have been set at rest by the findings of facts and these findings cannot be set aside in second appeal. I, therefore, do not find any ground to interfere with the decision of the Courts below and the appeal is dismissed with costs.