' Vide agreement dated 24-11-1991, right to collect the entry fee was given to the petitioner.
Subsequently, by virtue of another agreement between the petitioner and respondent No,1, it was postulated that such right in fact have been taken by respondent No,1, rather than petitioner, who was only a Benamidar. This agreement is endorsed and signed by the Chairman of the Town Committee, Hujra Shah Mokeem (respondent No,2). Besides a certificate Exh.P.3, was also issued by the Chairman exonerating the petitioner from any liability under the agreement dated 24-11-1991.
2. Subsequently, respondent No,1 instituted a suit against the Town Committee, Hujra Shah Mokeem, alleging that claims of some outstanding amount under the agreement are illegal and unlawful respondent No,2, in paragraph No,1 of the plaint, very clearly states that he is the contractor. Both the petitioner as also respondent No,2, filed their written statement to the suit and respondent No,2 in very clear terms has admitted that contract vests with respondent No,1.
However, in this suit, agreement was entered into between respondent No,1 and respondent No,2, whereby the amount due to the Town Committee were agreed to be recovered from respondent No,1 through instalments.
3. Thereafter, respondent No,2 issued notice to the petitioner, Exh.P.1 for the recovery of outstanding amount of Rs,99,760 on account of contract. Likewise another notice was also issued to respondent No,1, but of a higher amount. Anyhow petitioner filed the present suit challenging the said notice on the premises that he was only Benamidar and the actual contract had been obtained by respondent No,1, which position has been acknowledged through agreement between the petitioner and respondent No,1, fully endorsed/witnessed by the Chairman, Town Committee and also envisaged Exh.P.3 certificate issued to the petitioner exonerating him, from any liability under the agreement, resultantly, no recovery can be effected from him. Both the respondents contested the suit and stance taken was that contract. Mentioned above was with the petitioner and it is he who was liable to pay the amount in dispute. Learned Civil Judge, after recording of evidence, decreed the suit. The appeals. Filed by both the respondents, have been accepted and the suit had been dismissed.
4. -Learned counsel for the petitioner states that certificate Exh.P.3, duly exonerates the petitioner of his liability under the contract and notwithstanding that the contract in the name of the petitioner was Benami or otherwise, when was accepted by the Town Committee in the earlier suit of respondent No,1. That the amount under the contract was due from the said respondent, the demand made from the petitioner through the notice Exh.P.1 is absolutely illegal and unlawful.
Learned counsel has also drawn the attention of this Court, to Exh.P.4, a suit earlier filed by respondent No,1 against petitioner as well as respondent No,2. In which he in the first paragraph, in unequivocal stated `that he is the contractor and this fact has not been refuted by the respondent No,2, rather it has been admitted in toto, resultantly, if respondent No,1, was a contractor, no liability against the petitioner in law could be created.
5. Confronted with the above, learned counsel for respondent No,2. States that as per law, the Chairman. Town Committee, had no authority to endorse any agreement, as alleged by the petitioner or to issue a certificate. Such action being unauthorized is not binding upon the Town Committee. However, no satisfactory answer has been given about the admission in the written statement as mentioned above.
' However, learned counsel for respondent No,1, argued that plaint of the suit Exh.P.4, though has been adduced in evidence but when respondent No,1 appeared in the witness-box this document has not been put to him, therefore, such plaint is not proved in accordance with law and cannot be relied upon. Anyhow, he has not been able to contradict the fact that written statement Exh.P.6 in the suit filed by respondent No,1 is a fake, forged and fabricated document. Even the said document has been admitted by the counsel for respondent No,2.
6. I have heard learned counsel for the parties. Admittedly, the agreement is between the petitioner and respondent No,2. But apart from the agreement Mark "A" or certificate Exh.P.3, from the plaint, Exh.P.4, in the earlier suit, filed by respondent No,1, he claimed to be the contractor. This position in toto has been admitted by the respondent No,2. Having thus made such an admission, respondent No,2, cannot seek to recover the amount under the same agreement from two persons independently. Either it has to be recovered from the petitioner, or from respondent No,
1. But when the respondent No,1 asserted that it is he who is contractor, therefore, and this position was admitted by respondent No,2. Thus respondent No:2 could not issue any recovery notice to the petitioner. Learned Court of appeal, has taken this important aspect of the matter in consideration, and has fallen in error of misreading of the evidence on record.
' Therefore, in view of this conspicuous omission and non-reading of evidence, the judgment and decree of the Court of appeal cannot sustain, resultantly, the same is set aside and judgment and decree of the trial Court is upheld. No order as to costs.