Karnataka High Court
K.M. Somaiah vs The Secretary, Government Of ... on 17 February, 2000
Equivalent citations: AIR2000KANT374, 2000(5)KARLJ501, AIR 2000 KARNATAKA 374, (2000) 5 KANT LJ 501, (2001) 1 CIVILCOURTC 328, (2001) 3 RECCIVR 75, (2001) 2 ICC 806
JUDGMENT
1. These two appeals had been listed before me by the office with note that paper book in Appeal No. 479 of 1997 had not been Filed. Counsel for the appellant submitted that there is no need to file paper book in this case as the decision of the appeal may hinge on a short point as to whether the plaintiff/appellant in R.F.A. No. 479 of 1997 had been entitled to the interest keeping in view the order of this Court in Writ Petition No. 15705 of 1988 decided on 7th August, 1989 and whether the Court below was justified in passing that decree for the sum in question. The learned Counsel further contended whether the plaintiff is entitled for future interest or not, the learned Government Counsel submitted that so far as Government's appeal is concerned, Government has already filed paper book. Both the learned Counsel wanted that appeals may be disposed of at the earliest. Appellant's Counsel in Appeal No. 479 of 1997 said that the matter has been pending since 1993 in the Civil Court and as earlier amount has been kept in the custody of the Government since 1983. Looking to the circumstances, I called upon the learned Counsel for appellant in both appeals to make submissions.
2. The facts of the case in the nutshell are that, the plaintiff who is appellant in Appeal No. 479 of 1997 had filed this suit for recovery of a sum of Rs. 1,10,500/- with future interest at 24% p.a. from the date of suit till the date of realization. The plaintiff/appellant alleged that the plaintiff participated in the auction purchase of standing timber, eucalyptus of Village Panchayat of Yeldur village, Srinivasapur Taluk, Kolar District, for a sum of Rs. 1,03,000/-. In pursuance of the auction and as the highest bidder the plaintiff had earlier deposited a sum of Rs. 5,000/-and later another sum of Rs. 5,000/- and lastly the sum of Rs. 93,000/-respectively in total Rs. value, with the State Bank of Mysore in Srinivasapur. Thus, according to plaintiff/appellant in R.F.A. No. 479 of 1997 he deposited in total a sum of Rs. 1,03,000/- (One lac three thousand rupees) in pursuance auction referred to above. According to the plaintiff, his bid was not accepted finally and sale was not confirmed in his favour. The money deposited having not been refunded as well plaintiff/appellant not having been allowed to cut eucalyptus trees, the plaintiff filed Writ Petition No. 15705 of 1988 in this Court and that writ petition has been disposed of by this Court by the judgment and order dated 7-8-1999 (Ext. P-1 on record of the Trial Court) and the plaintiff has alleged that this Court had specifically directed the defendant/respondent i.e.. Deputy Commissioner and Tahsildar, to cause the refund to be made to the petitioner, in the writ petition namely the present plaintiff/appellant, together with interest if any such deposits would have earned. The certified copy reveals that expression is 'would have earned in the State Bank of Mysore, Srinivasapura Branch, Kolar'. The operative portion of the order of this Court in Writ Petition No. 15705 of 1988 reads as under.-
"I direct the Deputy Commissioner and the Tahsildar, respondents 4 and 6 to cause refund to be made to the petitioner together with interest if any, such deposits would have earned in the State Bank of Mysore, Srinivasapur Taluk Branch, Kolar District. Rule will accordingly issue and be made absolutely".
Relying on this portion, the plaintiff made a representation to the Deputy Commissioner for refund of the amount in pursuance of the order of this Court in the above mentioned writ petition. On 23-12-1989, an order was passed by the Deputy Commissioner directing the defendants to pay the said sum with interest to the plaintiff as per the directions of the Hon'ble Court. But according to the plaintiff, inspite of the order of the Deputy Commissioner, the Tahsildar, Srinivasapur Taluk, paid only a sum of Rs. 1,03,000/- on 27-12-1989 and did not pay the amount of interest which deposit would have earned in the State Bank of Mysore.
The plaintiff's case is that plaintiff issued a legal notice on 3-5-1990 through his Counsel and on 18-7-1990, the second defendant replied that they have paid a sum of Rs. 1,03,000/-. In the reply dated 18-7-1990, the defendants stated that as it was in revenue deposit, the plaintiff/appel-lant is not entitled for any interest. After having received the reply the plaintiff filed a suit for the amount of interest whatever accrued on the sum of Rs. 1,03,000/- from 1-7-1983. The plaintiff claimed interest on that amount of Rs. 1,03,000/- at the rate of 11% p.a. compounded quarterly and the rate alleged to be the rate prevailing in 1983. The plaintiff also claimed future interest on that amount.
3. The defendant filed their written statement. There is no dispute that plaintiff participated in the auction. Defendant admit that plaintiff had made deposit of Rs. 1,03,000/-, but though he was the highest bidder, his bid was not accepted and sale was not confirmed in his favour. They took the plea that plaintiff is not entitled for interest on the aforesaid amount of Rs. 1,03,000/-. In alternative, the defendant has taken the plea that plaintiff may be entitled to Rs. 33,475/- in view of the order of the High Court. The defendant denied that the plaintiff is entitled to any relief.
4. On the basis of the pleadings of the parties, the Trial Court framed the following issues:
(1) Whether plaintiff proves that he is entitled to claim interest on a sum of Rs. 1,03,000/- namely the amount deposited by him as a highest bidder, as pleaded in paras 5 and 6 of the plaint?
(2) Whether plaintiff proves the service of notice under Section 80 of the CPC on the defendants?
(3) Whether plaintiff is entitled to notice charges? (4) Whether plaintiff is entitled to future interest at 24% p.a.? (5) Whether defendants prove that as per prevailing rate of interest at the time of deposit in S.B. Account, at the rate of 5% interest comes to Rs. 33,475/- as pleaded in para 8 of the written statement? (6) Whether plaintiff is entitled to the suit claim? (7) What decree or order?
5. On perusal of the pleadings of the parties and the issues framed really reveal that originally plea of limitation had not been taken nor any issue was pressed. Anyhow, at the stage of hearing, that question was also raised. The Trial Court after considering the materials on record decreed plaintiff's suit and recorded the following findings:
That the plaintiff has been able to prove that he is entitled to claim interest to the tune of Rs. 1,03,000/- and defendant failed to prove that prevailing rate of interest was 5% which comes to Rs. 33,475/-. It as such held that the plaintiff is entitled for that amount. It further found that service of notice under Section 80 of the Civil Procedure Code was proved by the defendant. The Trial Court held that the defendant is liable to pay interest and notice charges to the plaintiff. It also held that plaintiff is not entitled to any future interest as claimed at the rate of 24%. The Trial Court answered Issue Nos. 3 and 4 to the effect that plaintiff is entitled to interest and to notice charges, but not entitled to any future interest and decreed the suit. It also held that the cause of action for the suit arose on 18-7-1990 and suit filed on 5-7-1993 has been within time. The Trial Court considered this question keeping in view the provisions of Section 3 of the Limitation Act and it held that Article 55 of the Schedule to Limitation Act is applicable.
6. Feeling aggrieved from the judgment and decree of the Trial Court, the plaintiff has come up in appeal on the question whether plaintiff is entitled to future at the rate of 24% and that the defendants have come up in appeal challenging the entire decree on various grounds including that of limitation. The plaintiff's appeal is R.P.A. No. 479 of 1997 and the defendants' appeal is R.F.A. No. 660 of 1997. As both the appeals arise from the common judgment both the appeals are being disposed of by the common judgment.
7. In Appeal No. 479 of 1997, Sri K. Prabhakar contended that in view of the judgment of this Court dated 7th August, 1989, the plaintiff is entitled to interest on the amount deposited in the State Bank of Mysore that would have earned. It is submitted that on the amount paid by the plaintiff to the tune of Rs. 1,03,000/- he has been entitled to interest thereon at the rate prevalent in the bank. The learned Counsel contended that the documents furnished by the bank Ext. P-9 clearly shows that according to it, the plaintiff is entitled to interest at the rate of 11% from July, 1983 onwards. The learned Counsel for the appellant emphasized that the expression used in the order of the High Court Ext. P-1 is not the interest that which is earned, but it is the interest which deposits would have earned means if a proper deposit had been made and whatever interest would have been payable by the Bank on that amount and whatever would have been earned, the plaintiff would have been entitled for decree of that amount and therefore he has been entitled to the amount of interest at least till that date of refund of the amount. He further contended that when the interest amount was not paid in the ordinary course of things, plaintiff would have been entitled to an interest on that amount as well. The learned Counsel for appellant contended, as such the learned Trial Judge erred in law in holding that plaintiff is not entitled to interest on the amount of interest that has accumulated. These contentions of the appellant's Counsel have hotly been contested by the learned Government Advocate. Sri M. Ramaiah contended, what to say of if and whether plaintiff is entitled to interest or not, here firstly, plaintiffs suit has been barred by time and Court below illegally held the suit to be within time by applying a wrong Article of Schedule to the Limitation Act, namely Article 55. He submitted that either Article 25 or 30 would have been applicable and Sri M. Ramaiah contended that the suit in the present case was filed on 5th of July, 1993. He further contended that the cause of action for the claim or the suit, firstly as per plaint allegations, accrued on 7-8-1989 the date when the direction was issued by the High Court and the amount was not paid. He submitted that subsequently had accrued on 27-12-1989. The learned Government Counsel contended that three years period of limitation has to be counted from these dates and counted with reference to these dates and at least last date on which payment of Rs. 1,03,000/- i.e., only of principal amount was made and no amount towards interest was paid inspite of the claim being made by the plaintiff. The cause of action having accrued, even on 27-12-1989 the plaintiff ought to have filed suit within three years from 27-12-1989. The suit having been filed in the month of July, 1993, the learned Government Counsel contended, had been barred by limitation as three years had already passed. The learned Government Counsel therefore contended that the decree passed by the Court below is illegal and is based on inadmissible piece of evidence namely Ext. P-9 as its execution has not been proved. He further contended that amount having been deposited in the revenue deposits accounts, no interest was payable by the Bank. He contended that amount which plaintiff had deposited towards the auction sale money was deposited under the head of revenue deposits account and so no interest was payable and plaintiff is not entitled for decree. The learned Government Counsel submitted, as such the Trial Court decree decreeing the suit is illegal. He submitted that the G.O. was not summoned by the plaintiff and therefore no adverse inference should have been raised against the defendant under Section 114 of the Evidence Act on account of failure to produce the G.O.
8. In the rejoinder to the arguments of the learned Government Counsel and the reply to arguments made by the Government Counsel in the Government appeal, Sri K. Prabhakar submitted that there was no specific denial of payment of interest till reply to plaintiffs notice was given by the Government vide reply dated 18-7-1990 and on limitation being counted from 18-7-1990 the suit filed on 5-7-1993 is within time, even if Article 113 is applied. Sri K. Prabhakar lastly submitted that decree passed by Court below decreeing the plaintiffs claim to the Rs. 1,10,550/- does not suffer from an error of fact or law, only error is failure of Court below to award future interest claim. So the extent of Rs. 1,10,550/- as decreed no inference need be made at the instance of Government appeal and in any case at least when defendants admit their liability to pay interest at least to the tune of Rs. 33,475/- equity and justice demands that decree in every case should be maintained at least for the sum of Rs. 33,475/- in every case without remanding matter for fresh trial, which may delay the matter and its final decision.
9. I have applied my mind to the contentions raised by the learned Counsels for the parties in both the appeals. As regard to the right to claim interest, no doubt, there was no contract between the plaintiff and defendants to pay interest, but when this Court had issued a direction and directed that amount which had been kept in Government Deposit without being refunded, when the sale had not been confirmed in favour of the plaintiff, the Deputy Commissioner and Tahsildar should cause refund of the amount together with interest if any such deposit would have earned in the State Bank of Mysore. The operative portion which I have already quoted and which I again quote as contained in Ext. P-1, i.e., order dated 7th August, 1989 reads as under:
"I direct the Deputy Commissioner and Tahsildar, respondents 4 and 6 to cause refund to be made to the petitioner together with interest if any, such deposits would have earned in the State Bank of Mysore, Srinivasapur Taluk Branch, Kolar District".
These directions definitely can be said to have entitled the plaintiff to the interest on the amount which had been deposited towards the auction bid amount in 1983. The plaintiff had deposited Rs. 1,03,000/- as highest bidder but sale was not confirmed in his favour, then in such situation the Court had issued the direction to the defendant to refund the deposit amount as well interest such deposits would have earned. It means deposit made in the bank it is expected to have earned interest and whatever interest would have been earned on the deposits at the rates prevalent, the plaintiff had been entitled to payment thereof and the defendant was bound to pay that amount. It is to be held that plaintiff is entitled for interest over the amount of Rs. 1,03,000/- from the date of deposit till the date of its actual refund at prevalent bank rate and it would be immaterial if that amount had been kept by Government in revenue deposit. That after the refusal of the plaintiff/appellant highest bid the defendants i.e., Government should have returned the sum of Rs. 1,03,000/- to the plaintiff/appellant instead of keeping it in its coffer for good long years, causing loss to plaintiff, as the plaintiff could have been earned thereon interest at the bank rate had it been returned or refunded to him at the earliest; by depositing in his own name in the Bank.
The next question is whether the plaintiff would be entitled for a decree for the amount claimed, even if it is found that he (the plaintiff) has been entitled to the interest on amount of Rs. 1,03,000/- and also on the amount of interest which has not been paid and accumulated till it is paid. On this point of answer and passing of a decree in plaintiff's favour depends on decision of the question whether suit giving raise to the appeal has been filed within the period of limitation. No doubt, principal amount was paid on 27-12-1989. The question is whether the suit was filed within time. It is no doubt true that plea of limitation was not raised in the written statement and no issue was pressed. Had there been no argument at all at the stage of final hearing before Trial Court, I might not have entertained this plea of Government Counsel. Had it not been argued in Trial Court, I would not have allowed this plea to be raised at this stage, keeping in view and following the decision of their Lordship Privy Council in the case of Mudena v Viraiah, in which law has been laid to this effect that:
"It is true that the Limitation Act was mentioned in Adenna's written statement and in his grounds of appeal, but before the Trial Judge no issue was directed to bear upon the question, nor does not point appear to have been taken at the Bar during the trial. In these circumstances, their lordships do not think the point was open on appeal".
Here, the argument on the question of limitation had been raised on behalf of the Government/appellant in the Trial Court. The plaintiff met that argument. The Trial Court considered those arguments and then held that Articles 25 and 113 will not apply to the present case, but the suit would be governed by Article 55 and the cause of action would be deemed to have occurred when reply of notice under Section 80 was given by the Government and the Court on that basis held the suit to be within time. Therefore, it is well open to the defendants i.e., Government/appellant to raise plea at this point of stage. Though Section 3 of the Limitation Act provides that if a suit is prima facie barred by limitation even if no plea has been raised by the defendant, it is the duty of the Trial Court to consider and to dismiss the suit which has been preferred beyond limitation. Section 3(1) reads as under.-
"Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence".
In view of provisions to Section 3(1) itself as it imposes the duty of the Court to dismiss the suit appeal as an application which is time barred, even though plea of limitation has not been raised before Court, the Trial Court did not commit any error when it heard defendant on the question if the suit was within time. It is well settled principle of law as laid down in the case of P.K. Ramachandran v State of Kerala and Another, that law of limitation has to be stringently followed, in view of the mandate to Section 3(1). Section 5 does not apply to suits, therefore there cannot arise any question of condonation of delay in filing the suit and further in view of Supreme Court decision, the equity can have no consideration in the matter where there is no power to condone the delay. In my opinion, the Trial Court erred in law in applying of Article 55 of the Schedule to the case. It will be profitable at this stage to refer the Articles 25, 55 and 113 of the Schedule to Limitation Act, 1963.
Description of suit Period of limitation Time from which period begins to run
25. For money payable for interest upon money due from the defendant to the plaintiff.
3 years When the interest
55. For compensation for the breach of any contract, express or implied not herein specially provided for.
3 years When the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.
113. Any suit for which no period of limitation is provided elsewhere in this Schedule.
3 years When the right to sue accrues.
10. In my opinion it has been rightly contended by the learned Counsel that Article 55 has been wrongly applied to the present case as it is not the case of contract or breach of contract. It is a case where this Court had directed refund of the principal amount deposited by the plaintiff along with interest if any, which would have accrued on the amount so deposited. Therefore, under that direction of this Court, the plaintiff became entitled to refund of Rs. 1,03,000/- along with interest that would have accrued on that amount as kept in deposit. So the right accrued the plaintiff to get money i.e., the principal sum of Rs. 1,03,000/-along with interest that would have accrued on deposits in the Bank under the order of this Court dated 7th August, 1989 as per Ext. P-1 on record. Definitely when the right accrued they had to make demand plaintiff made demand for the refund of the amount along with interest thereon, vide his correspondence dated 2-12-1989. The plaintiffs representation was made long after in pursuance of the order dated 7-8-1989 and thereafter the Deputy Commissioner passed the order dated 23-12-1989. The defendants refunded the principal amount of deposit i.e., Rs. 1,03,000/- but did not pay the interest amount that this amount of Rs. 1,03,000/- had, or would have, earned. The amount of Rs. 1,03,000/- had been paid on 27-12-1989. It means that the demand was made in 1989 and demand was not accepted in full and demand was complied in part i.e., with reference to principal amount and not as to interest. So the cause of action can be said to have arisen on 27-12-1989 to the plaintiff to take legal proceedings by way of suit or by moving this Court by proper petition that the direction and order of the Court was not being complied. The plaintiff/appellant took resort to the suit and the suit was filed on 5-7-1993 after serving Section 80 notice on 15-1-1989 the reply to which was given by the Government on 18-7-1990. In my opinion, Article 113 of the Limitation Act would apply to a case like the present one which is not covered by any other article. Article 113 provides three years period which starts to run from the date when right to suit accrues. The right to file the suit when did accrue. The suit could not be instituted except after serving notice under Section 80 of the Civil Procedure Code when the demand has been rejected. That Section 80 of the Civil Procedure Code required two months notice should be given before filing the suit. It means until then suit could not be instituted, so cause of action for the suit even for the first time might have accrued on 27-12-1989. But the right to sue can also be said to have arisen only when on 18-7-1990 reply to notice was given by defendants with clear denial. There is a difference in phraseology of Article 58 and Article 113. The language used in Article 113 if compared with Article 58 indicates the difference. In Article 113, the language used is 'when the right to sue accrues', while Article 58 which is also residuary article with respect to suit for declaration covered by it period of limitation as prescribed it mentions start to run when the 'right to sue first arises'. The period is to start cases covered by Article 58 as mentioned in "Article 58 - when right to sue first arises". This use of two different and distinct expressions in the above two articles clearly indicates that if the Legislature would have intended that three years limitation period should be counted from the date the right to sue first accrues it would have used expression 'First' before expression "accrues" or arises in Article 113 also as it has used in Article 58. The inner evidence from use of two different expressions thus furnishes and indicates the Legislative intent when it purposely omitted use of the expression "First" arises in Article 113. The legislative intent appears to be that in cases covered by Article 113 may be taken that period of limitation prescribed may be counted and be taken to start not only from the date the right sue first arises but from the date of subsequent cause of action giving right to file the suit. That as observed by Trial Court, when notice was given under Section 80, Government made refusal to pay interest and that reply is dated 18-7-1990 in which the defendants have admitted the notice under Section 80 of the Civil Procedure Code making demand and then they have said that Rs. 1,03,000/- has been deposited on 27-12-1989 and they did not comply with the demand as made in the notice about the amount of interest. So, the cause of action and right to sue can be said to have accrued entitling the plaintiff to file the suit with the issuing of notice under Section 80 even, on 3-5-1990 and on 18-7-1990 when the reply was given and refusing the paying of that amount of interest. As Article 113 does not emphasize that time begins to run from the date when right to sue first accrues but only provides when right to sue accrues and it may in case of continuing cause of action or based on subsequent cause of action accruing that suit can be filed within three years from the date of any subsequent cause accruing as well. Thus considered in my opinion the Trial Court has been justified in taking the view that plaintiff's suit has been within time i.e., within three years from 18-7-1990. The contention raised on behalf of the Government in the Appeal No. 660 of 1997 that plaintiff-respondent's suit was time barred has to be rejected as being without any substance.
11. The learned Counsel for the appellant in Appeal No. 660 of 1997 contended with respect to prevalent rate of interest, that Ext. P-9 the alleged letter dated 15-2-1990 alleged to have been written and addressed to plaintiff's Counsel by bank and on which reliance has been placed by the Trial Court as well as plaintiffs Counsel, is by itself not admissible in evidence to prove the rate of interest prevalent. It has not been proved by the plaintiff in accordance with law by producing any witness to prove its execution by the Bank Manager. The plaintiff should have examined the necessary witness to prove that document and to prove the rate of interest. It appears that plaintiff has only produced a letter purporting to be on the letter-pad of the State Bank of Mysore. Plaintiff has only appeared in the witness box and not produced any other witness to prove this document. The document by itself will not be proof by itself. Somebody else has to be produced as witness to prove it. Therefore, for the purpose of rate of interest at relevant period this cannot be taken into consideration as admissible evidence unless proved by production of the witness competent to prove the signatures of the person mentioned as Manager. Neither the Bank Manager has been produced nor any officer to prove the document, so the document cannot and could not be taken into consideration as admissible piece of evidence by the Trial Court, and as such finding recorded on the basis thereof by Trial Court as to the rate at which interest was held to be payable and as to quantum of amount of Rs. 1,10,000/- is no doubt erroneous and bad in law.
The learned Counsel for plaintiff/respondent in R.F.A. No. 660 of 1997 i.e., appellant in R.F.A. No. 479 submitted that para 8 of written statement defendant's case on S.B. A/c interest during those days was 5% and amount of interest quantified is stated to Rs. 33,475/- and in such circumstances this Court may instead dismissing the suit or remanding it, this Court may be pleased to decree the claim of plaintiff at the rate 5% p.a. interest on the sum of Rs. 1,03,000/- and decree it at least for the quantified sum of Rs. 33,475/- as stated in para 8 of written statement.
I have applied my mind to this contention as well para 8 of the written statement reads as under:
"Further this defendant submits that the deposited sum of Rs. 1,03,000/- has been paid by the plaintiff on 27-12-1989 as per the directions of the Hon'ble High Court order dated 23-12-1989. The interest has not been paid as no interest was earned on the deposited amount as the same has been deposited in the Revenue deposits. Even the printing rate of interest at the time of deposit in the S.B. Account is only 5%, it amounts to only Rs. 33,475/-. Anyhow, in view of the orders of the Hon'ble High Court after furnishing Court accounts of the plaintiff.
That as has been held above, in view of the order of the High Court, plaintiff is entitled to interest. But no admissible evidence has been led to prove the rate of interest.
The learned Government Counsel in view of above allegation in written statement submitted as no doubt According to defendant at relevant period interest at 5% p.a. on S.B. Account was payable and this Court may modify the decree of Trial Court to aforesaid sum of Rs. 33475/- and defendant is agreeable to abide by the decree. Thus considered modifying of Trial Court decree decreeing of the suit for the sum of Rs. 33,475/-
in place of decree for Rs. 1,10,000/- as passed by Trial Court, would just and proper as beyond any doubt the plaintiff is entitled to interest that would have been payable on sum of Rs. 1,03,000/- which was in deposit with the defendants. To avoid further delay, I am of the view, Trial Court decree which has been passed on the basis of the inadmissible evidence for a sum of Rs. 1,10,000/- should be set aside in part and be modified as suggested instead of remanding or dismissing the suit. It is, as such, hereby the Trial Court's decree is being modified and it is held that plaintiff is entitled to get decree for a sum of Rs. 33,475/- as amount due towards interest plus 250/- the charges of the notice. Thus, in total, the plaintiff is entitled for a decree of recovery of a sum of Rs. 33,725/- to interest on deposit of Rs. 1,03,000/- plus Rs. 250/- the charge of notice with pendente life future interest at the rate of 6% p.a. on the above amount till the date the above amount is paid to the plaintiff. Thus the plaintiffs appeal with regard to future interest is allowed awarding pendente lite future interest at the rate of 6% p.a. on the sum of Rs. 33,725/- and the defendants' Appeal No. 660 of 1997 is allowed modifying the Trial Court decree as under:
That the plaintiffs suit is and shall be deemed to have been decreed for a sum of Rs. 33,725/- only with interest pendente lite and future from the date of suit till its payment at the rate of 6% p.a. plaintiff is further entitled to decree and is granted decree for sum of Rs. 250/- as charges for notice as well. Both the appeals are disposed of as allowed in part as above. The Trial Court decree shall stand modified in terms of this judgment and decree passed as above by this Court. The suit is decreed as above with costs proportionate to success and failure of two appeals.