JUDGMENT 1. - This appeal has been filed by the defendant against the judgment and decree of the learned trial court dated 28.5.99 whereby the plaintiff's suit for recovery of possession has been decreed. The appeal was admitted vide order dated 27.7.99 and execution of the decree was stayed. However, vide order dated 13.9.2000, after receipt of the record, with consent of the learned counsel for the parties the preparation of paper book was dispensed with and the appeal was ordered to be heard at this stage itself and the case was ordered to be put up on 12.10.2000. However, it was heard on 16 & 17.10.2000. 2. Brief facts of the case are that on 13.8.96 the plaintiff filed the present suit for recovery of possession of the property described in para 1 of the plaint being three rooms, one kitchen, one dining space, and latrine bath. The plaintiff case is that since the plaintiff was in need of funds, he borrowed a sum of Rs. 34,000/- from the defendant and delivered possession of the property excluding shops and roof, described in para 2 of the plaint by way of usufructuary mortgage. The consideration was received in the manner that a sum of Rs. 4000/- was received on 28.12.86 while balance 30,000/- was received vide cheque No. 26783 dated 6.1.87. The plaintiff's further case was that, it was agreed between the parties that defendant will get executed a registered mortgage deed on the plaintiff's cost, the mortgage was to be for a period of 3 years and the document will be executed shortly after 28.12.86 but since the defendant did not get the mortgage deed executed and since no mortgage could be effected without a written registered mortgage deed, the defendant's possession tantamounts to possession as a licensee, which the plaintiff is entitled to recover back, and which the defendant declined to return despite demands and despite the plaintiff being ready to repay the said amount of Rs. 34,000/-. The plaintiff also claimed that title of the property vested in him and valuing the suit on the basis of market value of the property, decree for possession was claimed along with mesne profits.The defendant contested the suit by alleging that the plaintiff had mortgaged the entire house but possession of shops only was not delivered. The roof was also delivered to the defendant. The roof was also delivered to the defendant. The further case of the defendant is that the plaintiff received the entire amount of Rs. 34,000/- on 28.12.86 itself in cash and delivered possession of the property and thereafter on 6.1.87 the plaintiff borrowed a further sum of Rs. 30,000/- by cheque, and thus the plaintiff in all received Rs. 64,000/-, and thereafter the plaintiff agreed to sale the house for a consideration of Rs. 70,000/- and to receive the balance amount of Rs. 6,000/- before the Sub-Registrar. This oral agreement was alleged to have been entered into on 6.7.91 but thereafter the plaintiff declined to sale. It is also pleaded by the defendant that she is in possession of the house as an owner continuously since 6.1.87, she always was and is ready and willing to perform her part of the contract, and that after agreement she has spent about Rs. 20,000/- in the maintenance and improvement of the house, and since the plaintiff agreed to sale the house there was no question of execution of any mortgage deed. Protection of Section 53A of the Transfer of Property Act was also invoked. Another objection taken was that since mortgage alleged by the plaintiff is unregistered, it has not ripened into a prescriptive mortgage, the plaintiff has no right of redemption, and thus the plaintiff has no cause of action. The next contention is that the plaintiff cannot maintain the present suit by pleading aforesaid possession of the defendant as a licensee. Inter alia with these pleadings it was prayed that the suit be dismissed. 3. The plaintiff filed a rejoinder controverting the stand of the defendant. It was contended that no agreement to sale was ever entered into and the possession of the defendant is as a usufructuary mortgagee. It is also contended that when the mortgage was not validly effected, the possession of the defendant is only permissive, and the plaintiff is entitled to recover the possession on title. 4. It was contended that no agreement to sale was ever entered into and the possession of the defendant is as a usufructuary mortgagee. It is also contended that when the mortgage was not validly effected, the possession of the defendant is only permissive, and the plaintiff is entitled to recover the possession on title. 4. On the pleadings of the parties, the learned trial court framed seven issues which read as under:- " 1- vk;k i{kdkjku ds njE;ku ;g r; ik;k gS fd oknh mlds edkukr ntZ nkok dk iSjk la[;k 1 o 2 izfroknh ds ikl fcy ,ot 34]000@& ( pkSarhl gtkj ) jgu fcy dCt dj nsxk vkSj jguukek rLnhd fd;k tkdj jftLV~h djk;k tkosxk ftlesa 3 lky igys edku ugha NqM+kus dh 'krZ fy[k nh tkosxh\ oknh 2- vk;k mijksDr bdjkj ds rgr 34]000@& :i;k oknh dks izkIr gks x;k o edkukr mudks jgufcy dCt djuk r; fd;k x;k mudk dCtk oknh }kjk izfrokfn;k dks lkSai fn;k x;k\ oknh 3- vk;k jguukek izfroknh }kjk ugha fy[kk;k tkdj jftLV~h Hkh ugha djk;k x;k gS blfy, dkuwuu jguukek eqdfEey ugha gqvk vkSj izfroknh dk dCtk oknh dh vksj ls btktrh dCtk jgk\ oknh 4- vk;k oknh 34]000@& ( pkSarhl gtkj ) :i;k vnk dj izfroknh ls dCtk edkukr ikus dk vf/kdkjh gS\ oknh 5- vk;k izfroknh dks oknh dh vksj ls uksfVl fn;s tkus ij dCtk ugha lkSaius ls oknh izfroknh ls rkjh[k 1-8-96 ls gtkZuk izfrekg 1]500@& ,d gtkj ikWap lkS :i;k ikus dk vf/kdkjh gS\ oknh 6- vk;k izfroknh us vykok mijksDr of.kZr 34]000@& :i;k vykok 30]000@& rhl gtkj :i;s vkSj fn;sA bl rjg 64]000@& ( pkSlB gtkj ) :i;s ij lwn tksM+rs gq, vkSj mlesa deh djrs gq, 70]000@& ( lRrj gtkj ) :i;s cftEes oknh dk;e j[ks x, ftlds fcy ,ot nkos esa of.kZr edkukr izfroknh dks csp nsus dk ekgnk dj fn;k blfy;s oknh bl nkos ds edkukr dk dCtk ugha ik ldrk gS\ izfroknh 7- vuqrks"kA " 5. The learned trial court decided issue Nos. 1 and 2 together, so also issue Nos. 3 and 4 together, and decided them in favour of the plaintiff. Issue No. 5 relating to mesne profits was decided against the plaintiffs, and issue No. 6 was decided against the defendant. The learned trial court decided issue Nos. 1 and 2 together, so also issue Nos. 3 and 4 together, and decided them in favour of the plaintiff. Issue No. 5 relating to mesne profits was decided against the plaintiffs, and issue No. 6 was decided against the defendant. In the result the learned trial court decreed the suit to the effect that defendant is in permissive possession, and the plaintiff is entitled to recover possession of the suit property on payment of Rs. 34,000/- to the defendant. 6. In the appeal, the appellant has also filed an application under Order Rule 27 CPC seeking to produce the cheque book wherein the plaintiff has put his signatures with date i.e. 6.1.1987 on the back of counter-foil of cheque No 963831 (sic. 967831). 7. I have heard learned counsel for the parties on the merits of the appeal so also the application under Order 41 Rule 27, and have also gone through the record very closely. 8. The main contention of the learned counsel, for the appellant is, firstly, that the learned trial court was in error in holding that a sum of Rs. 34,000/-, only had been paid to the plaintiff and not Rs. 64,000/-. According to the learned counsel, it is clearly established on record that Rs. 30,000/- were paid to the plaintiff in cash for which a receipt is there on the document Ex. A/4 which is not a disputed document and it was thereafter that on 6.1.1987 another Rs. 30,000/- were advanced to the plaintiff by cheque dated 6.1.1987. According to the learned counsel, the receipt of cheque by the plaintiff and its encashment is also not disputed. 9. The second contention is that in view of the above facts the defendant's story about oral agreement of sale having been entered into is more probablised and therefore the appellant is clearly entitled to protection of Section 53-A of the Transfer of Property Act and the suit could not be decreed. 10. Learned counsel for the respondent controverted the submissions to by contending that as a matter of fact the receipt mentioned (endorsed) on Ex.A/4 is with respect to the same amount being the one paid to the plaintiff by cheque dated 6.1.1987 and simply because the receipt on Ex.A/4 does not bear any date, the defendant is capitalising the situation by cooking up a false story. The learned counsel further contends that defendant has given 15 varying versions about the story which clearly shows that the stand taken by the defendant is ex-facie false. 11. In rejoinder, the learned counsel for the appellant contended that the material circumstance to arrive at a finding about the reliability of rival versions is the fact as to when the possession of property was delivered to the defendant. Inasmuch as since according to Ex.A/4, the possession was to be delivered on receipt of the balance amount of Rs. 34,000/-, if the possession is found to have been delivered prior to 6.1.1987, then it would necessarily mean that the amount represented by the receipt existing on Ex.A/4 was a cash amount paid to the plaintiff earlier, and a possession was received by the defendant, and thereafter further amount of Rs. 30,000/- was advanced by way of cheque. As against which, if it is found that possession was delivered on or after 6.1.1987 then only perhaps it can be said that only one set of Rs. 30,000/- was paid to the plaintiff. 12. Since giving of cheque on 6.1.1987 by the defendant to the plaintiff and its encashment by the plaintiff is not in dispute, I need not go into the merits of the application under Order 41 Rule 27 CPC as the original cheque book looses its significance. 13. For appreciating the rival submissions, I have closely scanned evidence of the parties and am in agreement with the various findings recorded by the learned trial court. 14. A look at the plaint shows that the plaintiff has clearly pleaded in para 3 of the plaint that he had in all received Rs. 34,000/- from the defendant, and it was for this amount only that the property was mortgaged. As against this, a look at the written statement shows that defendant has come forward with a specific case in para 3 of the written statement that entire amount of Rs. 34,000/- was received by the plaintiff on 28.12.1986, and thereafter on 6.1.1987 another sum of Rs. 30,000/- was advanced to the plaintiff. As against this, a look at the written statement shows that defendant has come forward with a specific case in para 3 of the written statement that entire amount of Rs. 34,000/- was received by the plaintiff on 28.12.1986, and thereafter on 6.1.1987 another sum of Rs. 30,000/- was advanced to the plaintiff. The further case of the defendant in that very para 3 is that since the plaintiff did not pay interest on the amount advanced by cheque nor did he refund the amount, the defendant demanded the amount, and thereupon the plaintiff proposed to the defendant to sell the house, whereupon it was agreed that the plaintiff will sell the house to the defendant for a price of Rs. 70,000/-. This agreement is contended to have been struck on 6.1.1991. It is also contended that the loan of Rs. 30,000/- was to carry interest @ 2% per month and on account of non-payment of interest a sum of Rs. 4500/- had fallen in arrears by way of interest and it was in these circumstances that the agreement to sale was entered into. 15. Thus, defendant's specific case is that the alleged agreement to sale was entered into on 6.7.1991 i.e. after four and half years of advancement of amount vide cheque dated 6.1.1987, and the said loan was to carry interest @ 2% per month and the consideration of the sale was agreed to be Rs. 70,000/- as according to the defendant, the plaintiff did not pay the amount of interest and it had accumulated to the extent of Rs. 4500/-. 16. During the course of arguments, learned counsel for the appellant conceded that if the appellant wants to rely on any agreement to sale, the appellant has to give and establish a specific date of agreement, specific property and specific consideration amount. 17. It is in this sequence that I have examined the evidence led by the parties. 18. A look at the statement of the appellant defendant, D.W. 1 rather a Para reading thereof would show that in the examination-in-chief, the appellant has deposed that the plaintiff had agreed to sell the house along with shops. 17. It is in this sequence that I have examined the evidence led by the parties. 18. A look at the statement of the appellant defendant, D.W. 1 rather a Para reading thereof would show that in the examination-in-chief, the appellant has deposed that the plaintiff had agreed to sell the house along with shops. She has also deposed that : " edku dqy 70 ;k 80 gtkj :i;s esa cspuk r; gqvk FkkA fQj 80 gtkj :i;s esa cspuk r; gqvk FkkA " According to her the plaintiff also gave out that if he will get the house vacated, he will refund the amount along with interest, then in the next sentence, she deposed that since the agreement to sale was entered into, there was no question of interest. In cross-examination also, she sticks to the sale consideration being Rs. 80,000/-, and also maintains that this sum of Rs. 80,000/- was arrived at by adding the amount of interest. It is significant to note that the defendant in her statement has not chosen to disclose the time (date, month or year) as to when the said agreement was entered into. 19. On appreciation of this statement, I have no doubt in coming to the conclusion that the defendant is not at all reliable with respect to her this version. Apart from the fact that she is deposing either contrary to the pleadings, or is omitting to depose facts pleaded in the plaint. Not only, this, a proper appreciation of statement does disclose inherent falsity, infirmities and improbabilities in the defence story. 20. I may refer here to the notices Ex. 1 and Ex. 6. The plaintiff has proved notice being Ex. 1 dated 9.5.92 given by Shri Fateh Singh Mehta, Advocate of the defendant, and a look at it shows that it purports to be a reply to the plaintiff's notice dated 3.5.92 and asserts that the possession of the house mentioned in the notice was delivered to the defendant by way of usufructuary mortgage for a sum of Rs. 34,000/-. 1 dated 9.5.92 given by Shri Fateh Singh Mehta, Advocate of the defendant, and a look at it shows that it purports to be a reply to the plaintiff's notice dated 3.5.92 and asserts that the possession of the house mentioned in the notice was delivered to the defendant by way of usufructuary mortgage for a sum of Rs. 34,000/-. Not only this in para 2 it has clearly been mentioned that the present defendant (client of Shri Mehta) has directed him to inform the plaintiff that if he wants to have the house redeemed he should come forward within seven days in his chamber so that he will get the house redeemed by getting the money paid to his client and possession delivered to the plaintiff, and also requested the plaintiff not to initiate any criminal proceedings in this regard. Then in para 4 it was mentioned that on 21.2.92 the plaintiff got delivered notice through his as advocate Bherulal Dangi calling upon defendant to inform as to when and where the mortgage money is to be paid while even prior to that notice the defendant had also given notice to the plaintiff to be ready to redeem. Though the plaintiff had produced earlier notice of the same advocate dated 28.9.91 finding place on record at page C-12/2, but then since its admissibility was objected by the defendant and therefore it was not exhibited, I need not take it into consideration wherein also almost similar averments have been made. However, Ex. 1 does make it clear that at least till 9.5.92 the defendant did not have the version about the defendant having advanced two sets of Rs. 30,000/- or any so called agreement to sale having ever been entered into. Not only this there is yet another notice Ex. 6 being dated 10.6.93 again having been given by different advocate Shri Mahendra Mehta having the same address 94-Bhopalpura, Udaipur, and it is in this notice that for the first time the defendant came up with the story about the so called agreement to sale. 21. Coming to the evidence of the plaintiff, the plaintiff P.W. 1 is categoric to the effect that Rs. 4,000/- were paid in cash and thereafter, after 7 days Rs. 30,000/- were given by cheque and thus a total only sum of Rs. 21. Coming to the evidence of the plaintiff, the plaintiff P.W. 1 is categoric to the effect that Rs. 4,000/- were paid in cash and thereafter, after 7 days Rs. 30,000/- were given by cheque and thus a total only sum of Rs. 34,000/- was advanced for which a mortgage deed was agreed to be executed. The plaintiff has clearly deposed in the cross-examination to the effect that after encashment of cheque the defendant's husband came to him, and asked as to whether he has received the amount of cheque and on his replying in affirmative, he was asked to execute a receipt and thereupon on the original document itself he executed a receipt of Rs. 30,000/-. He has categorically denied the suggestion of any agreement to sale having been entered into or to have delivered possession on the basis of oral agreement to sale dated 6.7.91. 22. Considering the defendant version as to whether one set of Rs. 30,000/- was paid by the defendant to the plaintiff or two sets of amount were paid, one being covered by Ex.A/4 and other being covered by cheque dated 6.1.1987. In this regard, the rival contentions are that according to the plaintiff, it was after the cheque was encashed, at he request of the defendant or her husband, the plaintiff made endorsement of having received the amount without mentioning the date, while according to the defendant the amount of Rs. 30,000/- mentioned in Ex. A/4 was paid in cash on 28.12.1986 itself, and the other amount was advanced by cheque on 6.1.1987. Suffice it to say firstly that a look at the document Ex.A/4 does show that it stipulated the balance amount of Rs. 30,000/- to be paid at a later date. If the entire amount of Rs. 30,000/- were paid to the plaintiff on that very day, then since Ex.A/4 is a document scribed on a plain piece of paper not on stamp paper, nothing prevented to parties from executing a document like Ex.A/4 reciting the receipt of total amount of Rs. 34,000/- on that very day. Thus, recital of receipt of Rs. 4000/- in the body of the document and endorsement of Rs. 30,000/- being made separately, is itself, a material circumstance indicative of a consideration probabilising in favour of the amount having been subsequently paid. 34,000/- on that very day. Thus, recital of receipt of Rs. 4000/- in the body of the document and endorsement of Rs. 30,000/- being made separately, is itself, a material circumstance indicative of a consideration probabilising in favour of the amount having been subsequently paid. In this background, on an overall reading of statement of the defendant, I find her to be comparatively not reliable as against the evidence of the plaintiff, inasmuch as she has not stuck to the pleadings of the written statement, and deposed improved versions which suited her convenience. The defendant has not shown anything on record as to how she was in possession of cash amount of Rs. 30,000/- advanced to the plaintiff on 28.12.86 when she claims to be a pure housewife of a retired husband. In such circumstance, no reliance can be placed on the bare ipse dixit of the defendant D.W. 1. In this view of the matter, I feel constrained to look for some corroborative, tangible material evidence to lend support to the version of the defendant, but unfortunately I do not find any such reliable corroborative evidence. A bare reading of the statement of D.W. 2, the husband of defendant would show that he has yet entirely different story to depose inasmuch as according to him firstly, the transaction of mortgage was entered into by the defendant herself and at the time when the writing was executed, he was not there. Another thing he deposed in the examination-in-chief is that further amount of Rs. 30,000/- was paid to the plaintiff at the time of agreement to sale having been entered into, and this amount was given by cheque. In cross-examination. he has maintained that house was agreed to be sold for Rs. 70,000/- and is categoric to the effect that the agreement to sale was entered into and finalised on 6.1.1987 itself. He further deposed that documentation about the house was not effected because it was of Housing Board. Then, on plaintiff's suggestion in cross-examination, he has of course deposed that when the loan of Rs. 30.000/- was advanced by him, it was agreed to carry interest @2% per month for a period of four years. Suffice it to say that this entire statement apart from being contrary to the story deposed by the defendant wife, is self contradictory also. 30.000/- was advanced by him, it was agreed to carry interest @2% per month for a period of four years. Suffice it to say that this entire statement apart from being contrary to the story deposed by the defendant wife, is self contradictory also. D.W. 3 is the son of defendant who has simply repeated the story and has tried to provide some support to the defendant by improving the version to the effect that Rs. 4000/- were paid in the morning, while Rs. 30,000/- were paid in the evening on 28.12.1986 and thereafter the cheque was given. Then the last witness examined in D.W. 4 Dalpat Soni. According to him, the dispute arose between the parties in the year 1991 during day hours and in the evening, he had gone to the house of defendant to invoke his good offices and at that time, defendant's husband was telling to execute and get registered the sale deed while plaintiff is alleged to have been giving out to be ready to deed of Rs. 64,000/- with interest within 5-7 days, whereupon the defendant should vacate the house. This incident according to this witness is of July or August, 1991. In cross-examination he has deposed that agreement to sale was entered into after three years of the mortgage and pleads ignorance as to when the cheque was given. He has admitted that the defendant's husband Parmeshwar lal had obliged the witness by giving evidence in favour of the father of the witness in a suit for eviction of the shop. A bare reading of the statement of this witness clearly shows that he is deposing an entirely different story not deposed whether by the defendant or any of his witness and has clearly shown himself to be a proverbial cooked up witness. 23. One more circumstance which may have far-fetched bearing on the reliability of appellant's version is, that the mortgage is said to have been effected in 1986 and according to the defendant the agreement to sale was entered into on whether 6.1.87 or 6.7.91 or in the year 1990 as per D.W. 4 while, the suit has been filed as late as in the year 1996, and in para 10 the plaintiff has pleaded the market value of the property to be Rs. 60,000/-. In the. 60,000/-. In the. written statement the defendant has of course pleaded the present market value to be Rs. 5 lacs, and significantly has not deposed a word in her statement about valuation of the property. It is though not conclusive, but it a remote manner may indicate that when in the year 1996 the value of the property was only Rs. 60,000/- it probably could not be Rs. 70,000/- whether in the year 1986, or on 6.1.87, or 6.7.91. or in the year 1990, and it is also indicative of the fact that only one set of Rs. 30,000/- must have been advanced by the defendant, taking into account prevalent market value of the property and after keeping respectable margin as the transaction was of the mortgage. 24. I may also point out that there is no document to show that the amount of Rs. 30,000/- which is said to have been advanced by the cheque was to carry any interest, much less at any specified rate, or @2% per month. Then, though in the written statement, she has pleaded this stipulation, but then the defendant could not muster the courage of even deposing by word of mouth while in the witness box that this amount of Rs. 30,000/- said to have been advanced by cheque on 6.1.1987 was to carry interest @ 2% per month. Similarly, the omissions on the part of defendant to depose any date, month, year or time of having entered into agreement to sale is also very significant, in the circumstances of the case, inasmuch as, though two different versions have been projected, one being in the written statement, about the sale consideration being Rs. 70,000/-, and this amount having been arrived at considering the amount of interest, having accumulated to the tune of Rs. 4500/- while, on the other hand when in the witness box though she deposed the sale consideration being Rs. 80,000/-, but then this figure is also alleged to have been arrived by adding the interest said to have accumulated. If I go by the pleadings taken in the written statement about the agreement having been entered into on 6.7.1991, by then, 54 months had elapsed since the date of cheque, and interest @2% on the said sum of Rs 30,000/- comes to more than Rs. If I go by the pleadings taken in the written statement about the agreement having been entered into on 6.7.1991, by then, 54 months had elapsed since the date of cheque, and interest @2% on the said sum of Rs 30,000/- comes to more than Rs. 30,000/-, and thus if this were so, there was no occasion for sale consideration being agreed to be Rs. 70,000/-, or even Rs. 80,000/-, as according to the defendant, the plaintiff was owing, another sum of Rs. 34,000/- being the mortgage money. The another factor is that admittedly, the defendant had not obtained any document from the plaintiff, evidencing the loan; said to have been advanced by cheque dated 6.1.1987, and therefore, as on 6.7.1991 even the limitation for recovery of that amount had already expired. Admittedly, even according to the defendant, the plaintiff has never made any payment of interest to the defendant. 25. Thus on above close re-appreciation of evidence, I have also no hesitation in coming to the conclusion that only one set of Rs. 30,000/- was paid by the defendant to the plaintiff. Likewise I have no further hesitation in coming to the conclusion that the story of the defendant about the so called agreement to sale having been entered into by the plaintiff in favour of the defendant being subject matter of issue No. 6 cannot at all be believed. 26. The legal aspect of the findings recorded by the learned trial court on issue Nos. 3 and 4 has not been assailed before me. Thus, the findings of the learned trial court on issue Nos. 1 and 2, issue No. 6 so also issue Nos. 3 and 4 cannot be said to be suffering from any infirmity and are confirmed. 27. Resultantly the appeal has no force and is hereby dismissed. Parties to bear their own costs.Appeal Dismissed. *******