JUDGMENT :

The instant regular second appeal has been maintained by appellant, Smt. Kamla Devi, who was defendant before the learned Trial Court (hereinafter referred to as “the defendant”), under Section 100 CPC laying challenge to judgment and decree, passed by learned Presiding Officer Fast Track Court, Mandi, District Mandi, in Civil Appeal No. 53 of 2004 and 121 of 2005, dated 01.08.2006, whereby, by allowing the appeals, the judgment and decree passed by the learned Civil Judge (Senior Division) Mandi, in Civil Suit No. 48 of 2001, dated 01.04.2004, was set aside.

2. The key facts of the case can tersely be summarized as under:

2(a). The plaintiff, Shri Baldev Singh, by maintaining a suit for recovery of Rs. 1,60,000/- (rupees one lac sixty thousand) alleged that on 17.10.1999 proforma respondent, Sh. Naresh Kumar, sold a bus, having registration No. HPK 8782, to him and after receipt of entire consideration, the possession of the aforesaid bus was handed over to the plaintiff. The plaintiff could not change the route permit of the bus, as it was in the name of the proforma defendant and valid till 21.08.2001, so he continued plying the bus. In the interregnum, defendant No. 1, Smt. Kamla Devi, intended to buy the aforesaid bus and the plaintiff also agreed to sell the same with the consent of proforma defendant for a consideration of Rs. 1,45,000/-, out of which Rs. 30,000/- was paid by defendant No. 1, and she agreed to pay the balance amount on or before 15.10.2001. Resultantly, the bus, alongwith its documents, was handed over to defendant No. 1 and a written agreement was executed, whereby it was agreed inter se the parties that in case defendant No. 1 fails to pay balance amount, the plaintiff will be entitled to recover the amount from him through the Court. It is further alleged that upto 01.08.2000 tax was already paid by the plaintiff and upto 17.09.2000 insurance was valid. The defendant not only defaulted in payment of the tax, but she did not pay balance amount of Rs. 1,15,000/- to the plaintiff.

2(b). The defendant, by filing a written statement, contested the suit by raising preliminary objection of maintainability. On merits, it is submitted that proforma defendant did not sell the bus to the plaintiff and the affidavit is wrong and illegal. As per the defendant, the plaintiff portrayed himself to be owner of the bus and also told him that he is holder of route permit of the bus. The plaintiff with an intent to sell the bus, executed an agreement with defendant No. 1 on 29.07.2000 for a sale consideration of Rs. 1,45,000/- and defendant No. 1 paid Rs. 30,000/- as earnest money to the plaintiff and the remaining amount was agreed to be paid on or before 15.10.2000. It is further averred that the plaintiff assured defendant No. 1 to bring ‘no objection certificate’ and agreed to transfer the registration of the vehicle in the name of defendant No. 1 before 15.10.2000. So, the plaintiff remained the owner of the vehicle and the possession was handed over to defendant No. 1. The plaintiff also agreed to transfer the route permit of the aforesaid bus within a week. It is contended that the bus was not in running condition, so defendant No. 1 had to spent Rs. 40,000/- on repairs. Defendant No. 1 engaged driver and conductor for the bus. Defendant No. 1 further contended that the plaintiff failed to transfer the registration certificate and route permit of the bus in her name, yet she is ready to pay the balance amount in case the registration certificate and the route permit is transferred in her name by the plaintiff. It is contended that defendant No. 1 subsequently came to know the plaintiff is not the owner of the vehicle, registration certificate is not in his name and he defrauded her, so the plaintiff is not entitled to recover any amount from her (defendant No. 1). Lastly, the dismissal of the suit was prayed.

3. The learned Trial Court on 10.06.2002 framed the following issues for determination and adjudic