Judgment ( 1. ) THE appellant/defendant has preferred this appeal being aggrieved by the judgment and decree dated 11. 9. 95 passed by the District Judge, Sagar in Civil original Suit No. 5-A/95 whereby the suit of the respondent No. 1 has been decreed against him to refund Rs. 55,000/-along with interest. ( 2. ) THE facts giving rise to this appeal in short are that the respondent No. 1 filed the suit against the appellant for specific performance on the basis of the agreement to sale dated 24. 9. 93 with alternative prayer to pass the decree for refunding the earnest money. As per averment of the plaint, the aforesaid agreement took-place between the parties in respect of the land comprising Survey no. 132/2 area 3 acre and Survey No. 132/4 area 2 acre, total 5 acres situated at village Sattadhana. As per terms of the contract the appellant agreed to sale the aforesaid land in consideration of Rs. 1,05,000/-, out of which Rs. 55000/-was paid to him by to the appellant as earnest money. As per further terms, the registered sale-deed was to be executed by the appellant in favour of the respondent No. 1 within a year after receiving the remaining consideration. At the time of execution of the agreement, the Bhu-Adhikar Rin Pustika and copy of B-1 Khatoni of the aforesaid land was also given to respondent No. 1. After 8-9 months from the date of the agreement, in order to perform his part of the contract, he asked the appellant to execute the sale-deed after taking the remaining consideration. He also sent a notice dated 9. 12. 94. The same was returned back with an endorsement "refused to take". Accordingly, the respondent No. 1 was remain ready and willing to perform his part of the contract while the appellant has not performed his part in this regard by executing the sale deed. With these pleadings the aforesaid suit was filed. ( 3. ) IN the written statement of appellant/defendant, the execution of the agreement and receiving the earnest consideration of Rs. 55000/-are denied. In addition, it is pleaded that the appellant took Rs. 5000/-from the respondent as loan. At the time of such transaction, the alleged stamp was given to the respondent No. 1 and on repayment of the loan amount the aforesaid document was to be returned to the appellant. 55000/-are denied. In addition, it is pleaded that the appellant took Rs. 5000/-from the respondent as loan. At the time of such transaction, the alleged stamp was given to the respondent No. 1 and on repayment of the loan amount the aforesaid document was to be returned to the appellant. Such amount has been refunded, inspite it, such document are not returned by the respondent No. 1. It is also pleaded that the land along with one house and its Well, is belonging to the joint family having the worth of Rs. 5 lacs. The respondent No. 1 took its Bhu-Adhikar Rin Pustika, copies of Khasra and B-1 Khatoni by giving an assurance that with the assistance of his relatives, he will make available the loan to the appellant from Tehsil. Subsequently, the respondent No. 1 filed the suit on false pretext. Besides this, rs. 5000/- is also claimed as special damages under Section 35-A of the C. P. C. ( 4. ) IN view of the pleadings of the parties, the trial court has framed as many as ten issues, on which the evidence was adduced by the parties. On appreciation of the same, by dismissing the suit of the appellant for specific performance, the decree for refunding the earnest money of Rs. 55000/-along with interest at the rate of 6% P. A has been passed. Hence, the appellant/defendant has come to this court with this appeal. ( 5. ) SHRI Rajiv Badkul, learned appearing counsel of the appellant assailed the impugned judgment and decree saying that the appellant being uneducated was in need of Rs. 5000/ -. The same was taken from the respondent NO. 1. By taking advantage of the condition of the appellant, respondent No. 1 took his signatures on blank stamp papers and later, by preparing the alleged agreement of sale mentioning payment of Rs. 55000/-as earnest consideration, filed the aforesaid suit. He elaborated the arguments and said that the alleged agreement was not executed in presence of the person who signed the same as witnesses. He also referred the depositions of the alleged witnesses Dayaram (D. W. 2), Mohan (D. W. 3), Suresh Vishwakarma (P. W. 2) and Tribhunesh Kumar Purohit (P. W. 3) in this regard. He elaborated the arguments and said that the alleged agreement was not executed in presence of the person who signed the same as witnesses. He also referred the depositions of the alleged witnesses Dayaram (D. W. 2), Mohan (D. W. 3), Suresh Vishwakarma (P. W. 2) and Tribhunesh Kumar Purohit (P. W. 3) in this regard. By referring the deposition of Jagannath (P. W. 4), he said that looking to the inconsistency of the testimony of this witness with the testimonies of the aforesaid witnesses, the conduct of the respondent No. 1 is apparently suspicious and giving sufficient circumstance to draw the inference that some loan transaction of Rs. 5000/-took place between the parties and by fabricating the false agreement to sale, the suit was filed for specific performance with alternative prayer of refunding the amount of Rs. 55000/ -. According to him, the trial court ought to have dismissed the entire suit of respondent No. 1, but under the wrong premises the same has been decreed for refunding the earnest money. Such decree is not sustainable and prayed for setting aside the same by allowing this appeal. ( 6. ) RESPONDING the aforesaid arguments, Shri R. S. Jaiswal, Senior Advocate assisted by Ku. Annapurna Sharma Advocate, by referring the deposition of the appellant Shivcharan (D. W. 1) said that in view of his admission regarding his signature on agreement (Ex. P/1) and also the admission of its witnesses Dayaram (D. W. 2), Mohan (D. W. 3), Suresh Vishwakarma (P. W. 2) and Tribunesh Kumar purohit (PW. 3), regarding their signatures on agreement, it could not be inferred that the agreement was fabricated by the respondent No. 1. On the contrary, it has been proved by admissible evidence that the alleged agreement was executed by the appellant to sale the alleged land in consideration of Rs. 1,05,000/, out of which rs. 55000/- was taken by the appellant as earnest money. Besides this, by referring the provision of Section 91 and 92 of the Evidence Act, he said that the oral evidence of the witnesses is not admissible if the terms of the contract are reduced in writing and such document is proved on the record. He further said that as per available evidence, the suit ought to have been decreed by the trial court for specific performance also but the same has been decreed only for refunding the money. He further said that as per available evidence, the suit ought to have been decreed by the trial court for specific performance also but the same has been decreed only for refunding the money. He fairly conceded that in the absence of any appeal, at the instance of the respondent, he is precluded to challenge such findings, but in any case, it was not a loan transaction of Rs. 5000/ -. In fact, Rs. 55,000/-was paid in consideration of such agreement out of which nothing was refunded by the appellant. He also pointed-out additional circumstances that the appellant would have disclosed his defence regarding loan transaction of Rs. 5000/-and its payment at the initial stage when the notice for performance of the contract (Ex. P/2) was given to the appellant but the same was returned unserved with an endorsement that appellant refused to take the same. Non reply of such notice gives sufficient circumstances to draw the inference that the appellant took false defence just to defeat the claim of the respondent No. 1. With these submissions, he prayed for dismissal of this appeal. ( 7. ) HAVING heard the counsel after perusing the record, I am of the considered view that the trial court has not committed any error in passing the impugned decree for refunding the earnest money to the respondent No. 1. It is apparent and admitted fact on record that Ex. P/1 the alleged agreement is signed by the appellant. The same was typed by the document writer Tribhunesh Kumar Purohit (P. W. 3 ). After typing it is signed by him also. On recording his deposition, he deposed that being document writer it was written by him. Such agreement to sale was executed by the appellant in favour of respondent No. 1 in respect of his five acres land in consideration of Rs. 1,05,000/-, out of which Rs. 55000/-was given as earnest money by the respondent No. 1 to the appellant. Such payment was made after drafting the agreement. He has not only proved his signatures as scriber but also the signature of the executant Shivcharan along with the witnesses, namely dayaram (D. W. 2), Mohan (D. W. 3) and Suresh Vishwakarma (PW 2 ). He specifically said that all these persons signed the agreement in his presence. On going through his cross-examination, I have not found any contents destroying the aforesaid version stated in-chief. He specifically said that all these persons signed the agreement in his presence. On going through his cross-examination, I have not found any contents destroying the aforesaid version stated in-chief. Besides this, the other independent witnesses, namely, Dayaram (D. W. 2) has deposed that he signed the aforesaid agreement after 2-3 days and signed the same in presence of Mohan Khangar and Suresh. He further stated that at the time of such signature, it was typed but at that time shivcharan, the appellant was not present. Although, he stated that such stamp was given to the respondent No. 1 by appellant Shivcharan in consideration of the loan of Rs. 5000/-, such sum returned in three different installments. However, he has admitted that at the time of his signature the agreement was typed and it was signed by Shivcharan. It appears that in order to support the appellant he has not stated any other thing regarding the alleged transaction. The other witness of the agreement Mohan (D. W. 3) categorically stated that respondent took his signature on a typed stamp (Ex. P/1 ). As per further averments he was told by the respondent No. 1 that such signature was taken in connection of loan transaction of Rs. 5000/-with the appellant. He further said that no sum has been refunded by the appellant to respondent No. 1 in his presence. According to him, no talk regarding money took place between the parties and the stamp was also not signed by the appellant in his presence. In cross-examination para-7, he stated that he signed the stamp paper voluntarily without any undue pressure. It appears from the record that earlier this witness was called by the plaintiff/respondent but he did not come and, at the instance of appellant, he came to record his statement. It shows his conduct supporting the appellant contrary to the agreement. The person may speak false but the circumstances never speak lie. In view of the aforesaid evidence, one thing is certain that the stamp of the agreement (Ex. P/1) was the same stamp, and was typed with its contents at the time of signature of the appellant and the witnesses. ( 8. ) IN deposition the appellant Shivcharan (DW. 1) stated that he did not enter in agreement for selling his property to the respondent No. 1. The averments of agreement to sale are denied by him. P/1) was the same stamp, and was typed with its contents at the time of signature of the appellant and the witnesses. ( 8. ) IN deposition the appellant Shivcharan (DW. 1) stated that he did not enter in agreement for selling his property to the respondent No. 1. The averments of agreement to sale are denied by him. In addition he stated that he did not take rs. 55000/-from the respondent. He asked the appellant to make available the loan from Tehsil, on which, respondent No. 1 assured him for the same and in this connection he took his Bandhi (Rin Pustika) and the copy of the Khasra. He further stated that before 1 " year he took the loan of Rs. 5000/-from the respondent for which he handed-over him the blank stamp with his signature, but the contents of it were not written in his presence. The loan taken by him was returned in three different installments of Rs. 2000/-twice and 1000/-respectively. But he could not explained the actual date of taking the loan or its repayment. It is also not stated that on which date he demanded the alleged stamp from the respondent. He categorically stated that no notice was produced before him for its service. In para-6 of his in-chief, he categorically stated that at the time of handing over the stamp and Khasra, the witness Dayaram and Mohan Lal Kori were present. In view of this version of the appellant that the stamp was handed over in presence of Dayaram and Mohanlal, and according to such witnesses the stamp had contents when they signed it, the inference may be drawn that at the time of giving the stamp to the respondent the same was typed with the contents , in such premises, the version of the appellant saying that the signature was given on blank stamp-paper, is falsified. According to the testimony of the appellant, he took loan before 1 " years. His statement was recorded on 28th July 1995 and the date of the alleged agreement (Ex. P/1) is 24. 12. 93 falling within the aforesaid duration. Thus, in view of the testimony of the appellant and his witnesses, it could be safely inferred that the alleged agreement (Ex. P/1) was executed by the appellant after receiving Rs. 55000/-from the respondent. His statement was recorded on 28th July 1995 and the date of the alleged agreement (Ex. P/1) is 24. 12. 93 falling within the aforesaid duration. Thus, in view of the testimony of the appellant and his witnesses, it could be safely inferred that the alleged agreement (Ex. P/1) was executed by the appellant after receiving Rs. 55000/-from the respondent. Once, it is proved that the appellant signed the agreement after reducing the same in writing then as per provision of Section 91 of the Evidence Act, the oral evidence led by either of the parties contrary to the terms of such agreement, cannot be considered as admissible evidence. ( 9. ) BESIDES the above, before filing the suit on behalf of the respondent No. 1 , in order to show his readiness and willingness to perform his part, a notice (Ex. P/2) for performance of the contract was given to the appellant through counsel by the registered post. Its postal receipt is also proved on the record as (Ex. P/3 ). The same was returned with an endorsement " Lene Se Inkar" (refused to take) which is evident by (Ex. P/4) also showing that it was sent on the correct address of the appellant. In view of the settled preposition even in the absence of any statement of the postman, such endorsement regarding refusal may be considered to hold that it was produced for service and refused by the appellant. Such question is answered by the Apex Court in the matter of Puwada venkateshwara Rao Vs. Chidamana Venkata Ramana- AIR 1976 SC 869 in which it was held as under : ( 10. ) THE two decisions: . . . . . . . . It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. . . . . . . " 10. In view of the aforesaid it is held that the appellant on production of the aforesaid notice for its service, refused to take the same and in that manner it would be deemed to be served. . . . . . . " 10. In view of the aforesaid it is held that the appellant on production of the aforesaid notice for its service, refused to take the same and in that manner it would be deemed to be served. In such circumstance, it could be said that even on getting the opportunity to reply of notice by availing the same at the initial stage,he did not disclose his defence regarding loan transaction of Rs. 5000/-and regarding blank stamp paper. It gives sufficient circumstance to draw the inference against the appellant that he took Rs. 55000/-as stated in the agreement (Ex. P/1) and executed the same. Subsequently, on filing the suit, appellant has come to defend the same with false story of loan. Non reply of notice is sufficient circumstance to draw the inference as laid by the High Court of Patna in the matter of Kameshwar lal Vs. The King-AIR 1948 Patna 406 in which it was held as under : "the petitioner. . . . . . . . . Further more, when Uttim Gorain sent a written notice to the petitioner to return the documents, the petitioner instead of replying that they had already been returned which is what one would expect if that had been the case, sent no reply at all, and has given no explanation of his conduct in that behalf. In these circumstances, I am not prepared to hold that the inference drawn by the Courts below adverse to the petitioner is incorrect and I would accordingly discharge this rule. " ( 11. ) IT is settled preposition of the law that on account of any weakness of the defendant, the plaintiff is not entitled to get the decree unless the case is proved by him with all probabilities. In this respect, the respondent/plaintiff Mohanlal (PW 1) by recording his deposition has proved the alleged transaction and payment of Rs. 55000/-as earnest money. His version is further supported by one of the signatory as witness of the agreement Ex. P/1, namely Suresh Vishwakarma (P. W. 2 ). The scriber of Ex. P/1 Tribhunesh Kumar Purohit (PW. 3) also proved the same. Thus it is held that the appellant has failed to prove his defence while the respondent has proved his case to get the decree for refunding the sum of earnest money with all probabilities. ( 12. P/1, namely Suresh Vishwakarma (P. W. 2 ). The scriber of Ex. P/1 Tribhunesh Kumar Purohit (PW. 3) also proved the same. Thus it is held that the appellant has failed to prove his defence while the respondent has proved his case to get the decree for refunding the sum of earnest money with all probabilities. ( 12. ) THE appellant has categorically admitted in his deposition that he is educated upto 9th standard. Hence, he could not be treated as uneducated person. Besides this by the above circumstances, it could not be inferred that the conduct of the respondent No. 1 was suspicious in any manner. On the contrary, it appears that the appellant took the false defence with intention to defeat the suit of the respondent. ( 13. ) UNDER the aforesaid premises, I have not found any perversity, infirmity ,illegality or any error in the impugned judgment and decree. Resultantly, by affirming the same, this appeal being devoid of any merit is hereby dismissed. The appellant shall bear his own expenses of this appeal along with the cost of the respondent. The Advocate fee is quantified as per schedule. The decree be drawn-up accordingly. ( 14. ) THE appeal is dismissed.