K.C.Agarwal, J. - (1.) This is a defendant's appeal arising out of a judgment and decree of the Additional District Judge, Gorakhpur, decreeing the suit for recovery of Rs. 8,600/- together with pendente lite and future interest.
(2.) The facts are these : The plaint allegations were that on February 12, 1972 the plaintiff advanced Rs. 5,000/- to the defendant in cash who agreed to pay interest at the rate of Rs. 2/- per mensum. He executed an agreement on the same day undertaking not to sell the property mentioned in the agreement and would pay the sum borrowed within three years from 12-2-1969 tailing which the plaintiff would be entitled to realise the aforesaid sum along with interest. The plaintiff alleged that later it transpired that the defendant had only a fractional share in the property and, therefore, could not execute a sale deed in respect of the entire area. On learning this the plaintiff demanded his money but when the defendant failed to pay the same, he had to bring the suit.
(3.) The suit was contested on the ground that he had not taken any loan of Rs. 5,000/- on February 12, 1969. The defendant alleged that there was a talk between the parties about the execution of a simple mortgage by the defendant in favour of the plaintiff for 1/3 share in plot No. 172 hut since the plaintiff insisted on getting the mortgage of the entire area of plot No. 172, the settlement could not be reached.;