Karnataka High Court
T Muniyappa vs Sri H Eshwarasa on 27 April, 2012
Author: H.S.Kempanna
Bench: H.S.Kempanna
I PHE HIGH COURT OF' KARNAF'\KA. BANGALORF
I )\ I F U TillS Ii iF 27 DA'i OF PRiJ, 2012
HEP( )RE
jOE. HU\ BLE MR. IF SJ1( E 1I.,KLMPA\\A
R.F.A.M).2635/2007 ISP)
BETWEEN
T. Munivappa
Sb, Late Ilanumanthaiah
a Thavanna
Aged aboul 65 years
"Kumsum Church"
75/5, Lagere Main Road
Peenya Post, Laggere
Bangalore 8. Appellant
(LU Sri. Ganapathi S Shatri. Adv )
1
1. Sri. II.ENiIwara',a
i'. Latt iT,Hwintutiha
5
ALeI iboiil 62 years
n51 Main
II Phase. \Vesi of Chord Road
Bangalon l(
Sail Ku p a 1
U. U brii
(1 1
fVhiiLi
Peit iI e
1 aiaa
\g
1 t ' te i t \.
( 'o--- (,tjr,, 'p--U
C -a C
i
This RFA is filed under )ect1on 96 ol the CPC a&taisnt
the Judgment and Decree dt. 27907 passed in
O,S,No4i49/20O4 on the file of the XXXIX Addi. City Civil
& Sessions Judge, Bangalore City, dec.reein g the suit for.
specific peribrrnance.
This appeal having been reserved coming on for
pronouncement of judgment this day, the Court pronou need
the following:
JUDGMENT
This is a defendants appeal challenging the judgment and decree of the trial Court granting decree of specific performance in respect of the agree. ient dated 30.10.1985.
2. For the zake of convenience the parties in this appeal would be referred to by their rankings as they are arrayed in the suit before the court below.
3, The brief facts of the ease are. as follows The suit schedule T]ronertv is a vacant site bearing . 40 formed in S,Nos. 74 and 755 of L..aggare grarna, Yeshwa.nthpura I lobli, Bangalore Nort.h Ta morefully described in t .h.e .seheduic appended t.o the plaint (hereinafter referred, to as Suit Schedule iaopertv' .short).
a 3 3.1. The plaintiff Instituted the 'uit agamst the defendant sceldng the relief of specilic prflorniai ice of flu 3grenntnt lated 30 10 198, and souqht for i direction to the defendant to execute the sale deed in favour of him conveying the suit schedule property as per the tennc of the agreement dat ed 30.10.1985 t gether with '111 rights 2ppurten2nces thereto md for costs.
3.2 It is the case of the plaintiff that an extent of 5 acres and 10 guntas cf land In S.Nos.74 and 75/5 of I aggare village belonged to one Hanumanthaiah 11 fha•anna 'hc is the laiher 01 the ddcndart The ',akl hint manthaiah died in tht icat 1983 lea mc behmcl Ins 'nft- Ran gdmrn i ai d the k fendant i' his legal ii' Aft th cltc I ')f led HI Ni it I( 1i( il 'orrnt- 1 sr I'm th' aid 1 iii I and ')l(I in tv our of tile r us' cit pit hi r .1 r ( tI iI' ILIth1ihi •11• '••)J••. ft i' -'j ' . 1 a' Li 1 1 1 1 4 agreeing to sell the suit schedule property for a consideration of Rs.3.000/-. On the same day, the defendant and Smt.Rangamma delivered the vacant possession of the plaint schedule property to the plaintiff. Since then, he Is In possession and enjoyment of the suit schedule property.
3.4. Smt.Rangamma died about 6 years back leaving behind the defendant as the only legal representative. At the time of execution of the sale agreement. there was a legal barrier to execute the absolute sale deed In respect of the schedule property In favour of the plaintiff Therefore, it was specifically agreed to In the agreement that as and when the legal barrier Is lifted and consequently, as and when plaintiff requests for execution and regIstration of the absolute sale deed, the defendant and his mother would come and execute the sale deed without expecting any additional sale consideration price. In support of the said sale agreement dated 30.10.1985 the defendant and his mother Jointly executed an irrevocable GPA along with an affidavit In favour of the plaintiff. 5
3.5. Now at present as the registration ol sale deed in respect of the revenue sites has commenced a lie plaintiff ha'. tw."n reql1e%t1ru the defendant to 'tint and execute the sale deed in his favour. The plaintiff has approached the defendant in tilt first week of January 2004 and requested for registration of the sale deed. In spite of the same defendant has flatly refused the said request of the plaintiff He has demanded exhorbit ant money from him on the ground that the present value oi the property fetches lakhs together '36 11w plamtiff issued legal notice dated 6.2.2004 ro rigS delendasijr c'adhing upon him ti txcetitt the egisteted sale deed and in spite f the s iine left ida t did ni. dcnlpl) ith 'Ii re tiest made in the k'd. iv,ta t i-i Ir.' a c i t 1i'1 ±4 i a 't lhi ft lii tiff t 't a all cntvc ca cuInrr ti'cd file the uiz ' t e • •t %ii.Jjflt ii C in 'fcx .1 r t .j it I it ad .,.• $ 6 dated 30.10.1985 by him and his mother in favour of tht. plaintiff in respect of the suit schedule property He further contended that his fathr was th owner of SNos74 and 75/5 which totally measures 5 acres 10 guntas situated in Laggare village. After the death of his father he was in possession and enjoyment of the plaint schedule property along with his mother and other family members He further contended after the death of his father, he and his mother continued in possession of the suit schedule property and he had sold portion of th property in S Nos 74 irid 75/5 to one P Muniswamy long hack. He further c ontended the said Muiuswimy is in possession and enjoynu nt of the said portion of the property and he is residing therein by nst tiC n, a residential I us€ 8 II I I it rx II the I il f ir r I ad c I 0 I force and therefore, the alleged agreement is ii nenforceable under law. The said a1ieged agreement of sale is oppose.cI to pu): lie polic v and is hit by provisions of Section 23 of the Indian Contract Act. Aeeording:lv, he prayed for dismissal of the suit.
3.9. On the basis of the basis of the above p1eadins. the trial Court framed the following issues
1. Whether the plairttiff proves that the defrridant and hLs [are mother, Ran gamma. were agreed to sell the schedule property for Rs3000/ evecuted cm aqreement of sale doted
30. 1 0.85 by receiving the entire sale consideration?
2. Whether the plaintiff proves that he was pm. in possession ot the schedule property ii i part erjormance of the contract?
3, Whether the viain.tift oroves that he has. been always ready and u'ihinp to perfonn his part of the con Pact?
S
4. Whether the stilt is burred by hmz.tanon?
5. Whet her the plain ti[f is eniitieC the rehej of specific perlorrna rice of contract?
6. What order or decree?
3.10. The plaintiff in support of his ease got himself examined as PW 1, produced 7 documents which came to be marked as exhibits P1 to P7. The defendant in support of his ease got himself examined as DXV 1. No documents were marked in support of his en se.
3. 1 1. The trial Court thereafter on hearin the learned counsel tor the respective parties and art gone n the evidence and the 1 tnrour documents on rccorct bela that the plaintiff has proven that the defendant and his rnotticr Rangamma agrecra to sell the suit scflcntnIc nropertv far Rs 3.000/ a fa execul cci an agrcc'mcm. of sale date.? 30 10. 1 985 by rcccivl.rW cnnrc sale conslnlcratiorl. plaintiff WU5 PU t. ffl agsscssion of 9 the schedule property in part performance of the contract. plaintiff was always ready and willing to perionn his part 01 tht 01111 act suit Is not baned hs limitation, plaintiff is entitled to the relief of specific performance of contract and accordingly, by its judgment dated 27.9.2007 decreed the stilt of the plaintiff arid directed the defendant to execute the sale deed in favour of the plaintiff In respect of the plaint cehech ile property within three months from the said date falling which the plaintill Is at liberty to get the sime nt cuted thiough the pi o ess of court .,. 12. It is tnt correctness and legahn of the said julgment ml dccrct that ha oen ssailed hi the tpprllint dtfei'dant lii this appt al
1. 'ii 1 1 'lfli(( 01111' apj)( mt tli( tllan late d deci tni zr d ar,.nhiiic lrc rLe C ii;ei lii p.--' irtflui(i :pf iht - .
qiJ. •'
..qit j% '''j'.l' s'1 ' art' t) hi 'iltllkitw"
I
t. ft. ri . . ..t I •.'
l0
contended that In view of the provisions of the Act which was in force, the agreement of sale which is void ab mum £ ould not havir been iiforced He furtiwi contended as the grant of relief for specific performance Is a discretionary power vested in the court. that discretion has to be exercised Judiciously well within the time. As tile same has not been done in this case. the trial Court has committed an error In decreeing the suit He further contented the trial Court wlthoi it appreciating the evidence and the documents placed on ruoicl In thr right prspctiw has granted the rem f contn to the materhi on re oid nd therefore. the impugrn d Judgment 2nd decree cannot lx sustamed It w set asidc hi allocting the appeal hr c"iitr f 1flilf for n r 'sponctrnt/plai 1 if t p n I Impuued dgmc nt mc) dec rt of s ibmitu cI thai iii ti ii iii'.' LidS POt (0 ilittt d si rrc'i lit 7fe:' flf j• ii' r_ -- --, Liz' I b i'Z)ii'( iS
--T • ' • ; js. Jct : -- j 1 I• _11-- • --
-- :' ' • :.-- .
1 • . 'I
II
the trial Court has also rightly held the suit is not barred by time a there was no stipulation ol time In the t cifltflltT' and a' tin plainitft has Qot issued the legal notice dt 6.2.2004 to which the defendant has not sent any reply. He also further contended that nothing remained on the part of the plaintiff to express his readiness md willingness to get the sale deed executed as the entIre sale consideration had been paid under the agreement. Taking from any angle the impugned Judgment and decree does not stiffer from any infirmity calling for Interfereiire In this appeal. Accordingly 'u same be dl'rnissed C Tiking the na ontentions ii t on%idci ti in udenn a ii th docum i t n 1 iii liii iit I it. idi talinit X hether tht- mip'iw'c"cI rvhgmttit kind riern e "i th't- trial C rait ('all% fr intrrk 1 • a'-- ';t iit' .I•; lift t h t liii It-t' fl'n'il 4 111(1 111 'it( Siuit rn I (( It t l r ta ; tt4t 1111 H I fri 't C a I 985 :tI'j'tlthuuhui mIP .
;;%ItIfILIitjIL V w .
, p,
,,
. 13
'4 4*1
t
S
It ii i
13
him to come and execute the absolute sale deed in his favour. He approached him in the first week of January, 2004 and requested the defendant to execute the sale deed to which he flatly refused and also demanded exhorbitant money from him on the ground that the present value of the property fetches lakhs of rupees. it is also his case that in spite of his repeated demands and requests since the defendant did not choose to execute the sale deed he got Issued the legal notIce dated 6.2.2004 calling upon him to execute the sale deed which was served on him and the defendant has not replied and complied with the same.
8. On the other hand, It Is the case of the defendant that he has not executed any of the documents much less agreement of sale and he had never agreed to seli the suit schedule property and had never put the plaintiff In possession under the agreement. The plaintiff by misusing the papers has got created documents for his convçnlence and has filed the suit. It Is also hIs case that the suit is hopelessly barred by limitation and the terms of the 14 agreement are unenforceable by the plaintiff as the same is against the public policy and the alleged transaction is hit by the pros isions of th A t Therefore, the agreement is void ab inititio Hence, the suit he dismissed.
9. ExPl is the agreement of sale which is dated 30.10.1985 alleged to have been executed by the defendant and his motherRangamma agreeing to sell the suit schedule property for a sum of Rs 3 000/ in favour of the plaintiff The plaintiff in his evidence has deposed about the execution of ExP1 in his favour in n sped of thc suit ,c hedule property In his cros examination it is suggested that the defendant did not cxc ute in sale gre ment in respe t f the suit ni prpi a Iii I I Fx f s of th e ir I 98- th tnt is filed UE the & ii' 004 ft th ss xamk n o P i a I& a I 00 1 41 C 15 been elicited in the cross examination of PWI to disprove Ex.Pl having been executed by the defendant anti hi% inot tier In lawur of thy plaintilf
10. On the other hand, a Is the case of the defendant that Ex.P1 has not been executed at alL Except the denial of execution of Ex.Pl he has not come with any other contention regarding the agreement of sale dated 30.10.1985 which is at Ex.P 1. It is his c ise that after the death of his father a portion of the property in S.Nos ?4 and 75/5 was sold in favour of P.Muniswamy and the said Muniswamy is in possession an I enjoy mciii of th portion of S.Nos I md 7 ,/' mc defendant m thc ross cximinatlon ha, stat d that i e II.Vannmsa wh a witnc ss to F x I I was carni:I .1, :u';ncv Ivn'Iii h 1 ,rv , and ts h in i ced A in nn he lii ececuwd Fx ('1 jiicl also E' P2 un II O)/fn In 2 P 1 a re a % nd iait und .111(1 Sn,r.R.rjapiii'i " ta' .'r .1 tjj' l.iahiiifl '4-- ;,r I ' ,,)a T' .. 1 tt- 'I •j' 4 .s •l
-
16property to the plaintiff and they had executed GPA and affidavit In favour of the plaintill in which there is i mcntion rearding thc ign em'nt f ak f hc suit schedule property to the plaintiff by them for a consideration of Rs.3.000/ The recitals In Ex.P3 also reveals the possession of the schedule property was handed over to plaintiff and in view of the Act as the registration of the sale deed Is not possible they are executing the (WA and affidavit I e Exs P9 and P3 in favour of the plalntlft The defendant in his cross c xamination has admitted his 'signature md I M of his mothcr Rangamma on las P1 t P3 It is hi. ase that he has affixed his signatun on Fxs P1 to P3 Ahen he availed loan from annasa one of thc witrn ss tc Ex I I itt tfl me inia las iken hi .ignat IC fl II I Li t I 17 admission of DWI In respect of the signatures on Exs P1 to P3, It Is for him to establish that he has not affixed his signatun cn Fxs P1 to P3 not with in intention to sell the suit schedule property to the plaintiff for consideration of Rs.3,000/ , but It was for the purpose of availing of loan from annasa The evidence on record does not disclose that the defendant has established the same. Apart from this the plaintiff has Issued legal notice calling upon him to execute the sale deed. Ex.P4 Is the copy of the legal notice and Fxs P5 and P6 an th dauments to shoci that the legal notice was ,en'ed on thc defc ndant Tn th ross ecamination the defendant has admitted his slgnaturc in Ex P6 lie has also admitted pnor to the institution h t gal tie ha bter iec aI1n, ipcn in xc h i I ci a m nplcN I 1$ if he has put his signature on the blank papers. he would have positively taken the stand in the written statement. In the absence of the same having regard to the evidence on record it has to he held that he has affixed his signature on ExsP1 to P3 along with his mother. It further establishes that the defendant had executed the agreement Ex.Pi on 30. 10. 1985 alon with his mother agreeing to sell the suit schedule property after receiving the sale consideration of R.s3000L from the larnufi.
11. Now, it ha. to be seen as contended by the learned counsel for the appellant whether this aL r 1 eenlent of sale dated 30. 10. 1985 could he held to he a valid agreement en loiceable under law, According to the I.earned as on the date of agreeme.nt (f sale I.. e
30. 1.0. l98. the of the Act was in force. The .Aet prevented transfer of property which lead to fragmentation. and consolidation, of holdings. In. view of r.
01 his .srilnn .ission he h.as relied upon he 19 decision reported in the ease of Smt Khamarunnisa Vs. Mudalappa reported in ILl? 2003 KAR 4535 (4) CODE OF CIVIL PROCEDURE. 1 908 (CENTRAL ACT NO.5/1908) SECTION 100 REGULAR SECOND APPEAL Find lug of fact cannot be questioned Onjdcts, Held -- ExP, 1 is not an agreement to sell. But ci contract of sale improperly stamped and unregistered, are pure findings of Thet cannot ie questioned in RSA.
(B) PREVENTION OF FRAGMENTATION OF CONSOLIDATION OF HOLDING ACT The Act prevents transfer of property which may lead to fragmentation of consolidation QJ holding tn facts held - No decree can he passea by the Court, As the acjreerrient entered between the parties was unert[orceahle.
HELD:
i tie jmazncj (nat .
3
tx.± ts not art
agreement to sell but a contract aj. sale executed on an improperly slampcd paper and is u..nreqistered are pure findings cfjdct and cannot he qarstioned in this: secora.i ajpeceL Fir not in dispute tha..t the dpiendant runs iiu rum. e ci ce.rjruniinq 1dm pro: tO 20 contract even as on the date of entering Into the agreement owing to a statutory bar that was in operation under the provisions of prevention of Fragmentalion and Consolidation of Holidays Act. The said act prevented transfer of property which may lead to fragmentation of a holding. EzP. 1 Is dated 1983. The said Act was repealed only on 3.12.1990. Even construing Ex.P. 1 as an agreement to sell, no decree could have been passed by the Courts below as the agreement entered into between the parties was unenforceable In law as on the date of agreement Therefore, the suit filed by plaintiff for specgftc performance has been rightly rejected by the Courts below and the concurrent findings of the Courts below on this issue does not callfor any interference. Relying on the aforesaid decision, the learned counsel contended that as Ex.P 1 was only an agreement of sale as the Act prevented transfer of property which may lead to fragmentation of holdings and as Ex.P1 was dated 30. 10.1985 on which date the Act was In force, the said agreement entered into between the parties was unenforceable in law. 21 Therefore. no decree could have been passed by the court below.
12 On the other hand. the learned counsel appearing for the itspondent/plarntiff c intended thu the principles laid down in the aforementioned decision is not applicable to the facts of this case as in that ease. the court was considering the execution of a sale deed and not an agreement of sale.
13 On a perusal 01 the aforesaid decision, it dearly goes ft show Ec P1 in the said case is an agreement t) sell and no decree could have been passed by the courts s the agreement entered into between the panics was unenforceable in law as on the ckiu of ii it. atrc mc n' with h n that east wa in the te a L')8) In tha' 'nv of the mattel I do not md am' merit unrrmmti,r' ol ihe cc'un',d frq the in ta' • Udt 'it,'ph;uitifi.
't% 1 1 Ac nijnl'. p'in.. cJ nut n e 1 tl (:tiI r' frY h& •2p iii* L' F c:.zt (lb i.t c.f a •!(". fl •l C$, 1 It kr t tii C I t I 1 it I '1
that Is the ease Ex.Pl the agreement of sale executed by the defendant and his mol her. by virtue of the pt-rn isions of the Act is unenforceable agreement In law and therefore, the c'ouri could not have acted upon the said agreement. The trial Court In Its Judgment has also nghtly observed on this aspect of the case, but by giving reasons on other aspects has come to a different finding holding that the agreement holds field, which cannot be sustamed.
14. Nextlv It was contended the suit is hopelessly barred by time Admittedly, the agreement of sale is dated 3(J.lO.1985. Thc suit Is filed on 16.6.2004 nearly 19 years iftc r the late of execution of the '.ale dec d Ex P1 It is the isc of the plnnnll th'tt t as bee iusc 4 tl,. lcçal barnert vIiirh were tlinra nil rhi- Jar f e utinn of F x I- he 'mId iw call upon the lcfiirtectl kckdill e .1' a'. Cl. Pie! rfni• tip dttenJinj 411.1 his tlac)tIi( r t\ (flit 1 aT1 1 7 •j ' ( .9 ''I 4 11 1 1 i • _.'..hlj;. .
.".
. __ '1' after the ban was lifted callin2 upon the defendant to execute the sale deed, There was no reply to the same by the defendant. The d.efendant did not execute the sale deed. Therefore, he filed the suit on 1662OO4 which is in time. In this connection. it is the contention of the defendant that the suit is hopelessly barred by time, as it has been flied 19 years after execution of Ex,P1, It is his case that on 622OO4 he sold the property in favour of one Muniswamy. The said Muniswamv is impleaded as respondent No.3 in this appeal.
14. I The learned counsel appearing for respondent No,3 submits that he has purchased the suit schedule property and has constructed a house and he is living in the said house. Therefore. H is the case of defendant that .he're was no a&rcemenI of sale and possession of the property was not handed over to the plain.tiff. In this con.nection, the l,earned counsel for the appei.lant has relIed, up on the decision in th.e case of Mdnjurtczth Anandappa U,f. Shivappa Hansi V. 24 Tammanczsa and Others reported in 2003 AIR Kant, ILCR. 1093 (Supreme Court,).
(B) Specf'Ic Religf Act (4•7 qf 1 f63L S2O Specific perjSrrnance of contract for sale Discretionary relif Suit filed almost after six years from date of entering into agreement to sell Mainly when plaint!ff learnt that suit land had been sold by defendant owner in favour of appellant No material to show that plaintiff ever approached defendant/owner of property to execute deed of sale Time thou. h not essence of contract plaint is required to approach Court u. ithin reasonable ttme Having regard to conduct o.f plaintiff discretionary relief refused by lower Courts -- Proper - High court in second appeal not to interfere auth discretion of lower Courts,
15. In the aforem ntioned case, the Apex Court plaintiff is required to approach the court within reasonable time, Having regard to the con-.duct of plaintiff, discretionary relief refused was held to be ii
16. Relying on this the learned counsel 'ehemently contended that since the plaintiff has kept q ilte for IC) bug yrrs without takinQ any %teps callhig upon him to execute the sale deed and as he has taken steps for filing the suit after coining to know be having sold the site m favour of Muniswaniy. the suit is hopelessly barred by time and no discretionary relief could have been granted.
17. On thc other hand the learned counsel for th respondent/plaintiff contended that in the aforementioned race, there was no material to chow that the plnntilf had approached the d. fendan to xec ute the ,ale ft d Hence the ourt t eld that tho gh tht t urn 1% not he (ss€fl C of con wt plaintiff '. u 4 nc. 'Ito rrc afljilIkt4h tlit (air tchliiii ti'i :'--ascaiabh.
11n In ilii C 1St xli ittedI ii tie via' u .. %tipulatioii
cn I m'iIf ) .1
ii sib 11 .illtti ip"i 1
L lcfend t ''
:1 --clif' it iii tj.çf u-" ,a tJp in.d'r ! tug
'Cstta' l'ti--i' i,i 1
l iji trj.; t
I
Court iii the ease of HMKrishna Reddy Vs. HC.
Naravana Reddv reported in ILR 2001 KAR 3870 Liriiitution :icL 1963 (Central Act No36 of 1 963 Article 54 -- and StJeci[ic Relief jict. 1963 (Central Act No47 vi 1963) -- Section 20 Clause in cm Aqreenzent to sell provided thai the Sale Deed to be executed as and when Burt for selling land (on Registration) under Karnataka Prevention of Frag men tation and Consolidation of Hold ing Act is repealed" and it was repealed in the year 1983 but agreement holder filed a suit in 1993. Land owner contended limitation to file suit under Article 34 expired in I S6 and the sit /ilcd in 1 993 was barred by time.
contended that the limitation starts from the dat e the defendant refused to execute the sale deed after issuing notice, Therefore, as the p1aintff has got issued the legal no.tice dated 6,2,2004 calling upon the defend:ant to execute. the sale deed, to which no reply has been received and as the suit has been filed on i6,62004, it 27
18. 1 do not find any merit in the said contention because the Act was repealed in the year 1990 i e. 3.12.1990 ihonith the tlmt was not the essenn of contract, the plaintiff ought to have taken steps Immediately thereafter calling upon the defendant to execute the sale deed. He has done so. lie has kept quite till 2004 i.e about 14 years even after the repealing of the Act dl 03.12.1990. ThIs conduct of the plaintiff m not approaching the court in a reasonable time as held to by the Apex Court is not entitled to the cliscretionan iellrf and thercfort ills I he held that the stilt Is hopelessly barred by time as contended by th defendant Tnsofar as the other legal barners thIch prevented the plaintiff Iron' getting the salt' deed cx uted ilint \ 110 'kltu 'e to slirn 'iher thsr legal cit a' f 1 i h& I lx 1 It b' held their t iS iii' Sill Ib)l)tl(vlV ban' d b irnit.
1 it ii I F
U ' tl d)i't ij4)t' 1 tic,
c fla ' at 11111 :a.t h
1 .,r tJ a
1' Ii r x. ' lilt '1 '
K t 0-
II it I '
.% p.
28
Ex.P1 was unenforceable In law by virtue of the provisions of the Act which was in force, no decree could have been granted. Further, the suit has also been filed 19 years after the execution that too after the defendant has sold the property to Munlswamy who is respondent No.3 in this appeal. As such, the suit is hopelessly barred by time and ought to have been dismissed. Therefore, in my view, though the finding of the trial Court in respect of the execution of the agreement does not call for interference, having regard to the provisions of the Act which was In force and as the suit has been ified after 19 years. the court below could not have granted the decree in favour of the plaintiff. In that view of the matter the Impugned judgment and decree of the trial Court cannot be sustained and deserves to be set aside.
20. In the result, for the foregoing reasons, I proceed to pass the following:
ORDER
(i) The appeal is allowed.
I. I 29 I (II) The Impugned judgment and decree of the trial Court Is set aside.
(III) The suit of the plaintiff Is dismissed.
Parties to bear their own costs.
JUDGE rs