Shiam Krishna Dar, Member. - This is an appeal against a judgment & decree of the H.C. dated Poh 22, 2005, by which it reversed a judgment & decree, dated Bhadun is, 2003, of the Subordinate Judge of Kathua, in a suit for damages for breach of contract.

[2] On Chet 24, 1971, the resp. & his brother Manoon executed a mtge. of half of the village Chingran in Tehsil Kathua, in favour of the applt. for Bs. 15B55. After the death of Manoon the reap, succeeded to Manoons interest in the estate & on Baisakh 18, 1990, he executed an agreement in writing & registered in favour of the applt. undertaking to sell half of the village Chingran after excluding certain area therein specified for a Bum of Rs. 32,500. By the agreement, the conveyance of the sale was to be executed within one week of the agreement & the sale consideration was to beset ,ptl in satisfaction of the said mtge.& of certain debts which were due to the applt. from the reap. & a sum of Rs. 1000 in cash & a promissory note for Rs. 3000 was to be given to the nesp. by the applt. at the time of the registration of the conveyance.

[3] The promised sale-deed was never executed either within the time fixed in the agreement or after the notice for execution which was served by the applt. on the resp. on Jeth 4, 1990.After waiting for two yeara for the execution of the sale-deed, the applt. put his debts in suit and his decrees in execution & recovered the amount due thereunder by process of law from the resp. In the course of execution, which was thus levied by the applt. an opportunity was granted afresh to the resp. to execute the sale-deed but he did not avail of it.

[4] Just one day before the expiration of the period of twelve years; from the date of execution of the agreement, the applt. instituted a suit out of which this appeal has arisen, for recovery of a sum of Rs. 5000 as damages for the breach .of contract. The applt. alleges, which is a fact, that the-deft, has broken the agreement of sale mentioned above & he asserts that the market price of the property agreed to be sold far exceeded the agreed price of sale & he claims &limits his consequential damages to Rs. 5000.

[5] This claim is resisted on two main grounds, namely, that the agreement was induced by undue influence & is not binding & even if it be regarded as binding the applt. suffered no damages by the breach. On both these pleas, the trial Ct. & the Court of appeal have come to opposite conclusions & it has, therefore, become necessary for the Board to examine the evidence afresh & to come to their own independent findings.

[6] Up to a certain stage, the facts are not in dispute. The applt. & the resp. both are the residents of village Chingran & both belong to Agriculturist class, but the applt. is also a money lender & the resp. is the lambardar of the village. At the time when the agreement was made the resp. was indebted to the applt. for a sum of about Es. 3000 & in regard to some of these debts the applt. had obtained decrees, one of which be had put into execution for a sum of Rs 1668 about a month before the agreement was executed, & the execution of this decree was sought by arrest of the resp. The resp. alleges that he was unable to pay the amount of this decree & in execution he was put into prison & was released by offering security & to avoid his further imprisonment, he executed the agreement by which be agreed to sell the valuable property for a comparatively low price under pressure from the applt.

[7] If these allegations could be accepted as correct they would make oat that the applt. was in a position to dominate the will of the resp. & taking

advantage of his position he obtained an unfair bargain. And this in law would be sufficient to establish the plea of undue influence.

[8] but the only evidence in support of these allegations is the evidence of the resp. himself which the applt. argues is not reliable as it was not properly disclosed in the written statement & .is not corrob

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