IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON'BLE MR. JUSTICE BUDIHAL. R.B REGULAR SECOND APPEAL NO.284/2006

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 24 TH DAY OF FEBRUARY 2014 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL. R.B BETWEEN: REGULAR SECOND APPEAL NO.284/2006 Mukdum Sab, S/o. Kasimsab, Aged about 65 years, Agriculturist, R/o. Donabagatta Village, Bhadravathi Taluk, Shimoga APPELLANT (By Sri. S.V. Prakash, Adv.) AND: Abdul Kadar Subedar, Since dead by his LRs 1. Nazarualla, Age 42 years, 2. Sirazulla, Age 44 years, 3. Shafiulla, Age 39 years, 4. Muzibulla, Age 29 years, 5. Asmatulla, Age 23 years, All are sons of late Abdul Kadar Sab, R/o. Donabagatta Village, Bhadravathi Taluk, Shimoga RESPONDENTS (By Sri. Rudragowda, Adv. for R-1 to 5)

2 2 This Regular Second Appeal is filed under Section 100 of CPC against the Judgment and Decree dt passed in R.A. No.21/2002 on the file of the Civil Judge (Sr.Dn.) and JMFC, Bhadravathi, dismissing the appeal and confirming the judgment and decree Dt. 20/08/2002 passed in O.S. No.222/1994 on the file of the I Addl. Civil Judge (Jr. Dn.), and J.M.F.C, Bhadravathi. This Regular Second Appeal having been heard and reserved for judgment, coming on for pronouncement of judgment, this day, the Court delivered the following: JUDGMENT This is the appeal preferred against the judgment and decree dated passed by the Civil Judge (Sr.Dn.) and JMFC., Bhadravathi in R.A.No.21/2002 confirming the judgment and decree passed by the I Addl. Civil Judge (Jr.Dn.) and JMFC., Bhadravathi dated in O.S.No.222/ The brief facts leading to the present regular second appeal are that the appellant herein was the defendant before the original Court wherein O.S.No.222/1994 was filed by the deceased respondent herein, who was the plaintiff in the said suit. The suit

3 3 was for specific performance of the agreement of sale dated to direct the defendant therein to execute the registered sale deed in respect of the suit schedule property in favour of the plaintiff in the said suit and in the alternative, for the recovery of the amount of Rs.43,500/- paid by the plaintiff as advance amount, with interest at 18% per annum, together with Court cost and other reliefs. In the said suit the defendant therein, who is the appellant in this regular second appeal, appeared and filed his written statement and ultimately, the trial Court decreed the suit of the plaintiff and directed the defendant therein to execute the registered sale deed in respect of the suit schedule property by receiving balance consideration of Rs.5,000/- from the plaintiff. Aggrieved by the said judgment and decree passed in the suit, defendant preferred regular appeal in R.A.No.21/2002 before the Civil Judge (Sr.Dn.) and JMFC at Bhadravathi. The first appellate Court by its judgment and order dated dismissed the appeal confirming the

4 4 judgment and decree passed by the trial Court. Being aggrieved by the judgment and order passed in the said appeal by the first appellate Court, defendant has preferred this appeal. 3. On , the learned single Judge of this Court has formulated the substantial questions of law and allowed the second appeal by passing the judgment. The respondents-legal representatives of the deceased plaintiff in the above regular second appeal challenged the legality of the said judgment before the Hon ble Supreme Court in Civil Appeal No.5076/2011 (arising out of SLP(C) No.25696/2010). The Hon ble Supreme Court allowed the appeal setting aside the judgment of the Hon ble High Court and the regular second appeal is remanded back to the file of the High Court of Karnataka for fresh hearing and disposal by the High Court. It is also observed by the Hon ble Supreme Court that it is open to the parties to contend the substantial

5 5 questions of law as framed by the High Court on do not arise or require modification. 4. The substantial questions of law formulated by this Court are as under: (i) Whether the finding of the Court below as to the plaintiff s readiness and willingness to perform his part of the contract of sale can be said to be sustainable in view of Section 16(c) of the Specific Relief Act? (ii) Whether the grant of decree of specific performance can be sustained in law in the absence of trial Court taking note of provisions of Section 20 of the Specific Relief Act? (iii) Whether the suit of the plaintiffs was barred by time? 5. Heard the arguments of the learned counsel appearing for the appellant and also the arguments of the learned counsel appearing for the respondents/legal representatives of original plaintiff. 6. The learned counsel for the appellant during the course of his argument submitted that the suit has

6 6 been filed after twelve years after the denial of the agreement of sale by the appellant-defendant. He also submitted that appellant-defendant has not received legal notice and P.W.4 the witness on the side of the plaintiff never said that another amount of Rs.1,500/- and Rs.3,000/- were paid by the plaintiff to the defendant. He has further submitted that the trial Court has recorded a negative finding on issue No.3 and it corroborates the defence of the defendant, which fact has been totally ignored by both the Courts below and the findings of the lower Court are contrary to each other. It is further submitted that plaintiff has failed to prove his readiness and willingness as required under Section 16(c) of the Specific Relief Act. Plaintiff made false statement regarding payment of remaining consideration amount. The acknowledgement of legal notice is also not produced before the lower Court and even in the absence of such acknowledgment, the lower Court held that there was issuance of legal notice. The suit filed by the plaintiff-respondents after twelve years

7 7 from the date of denial of the agreement of sale by the appellant is totally barred by time. Hence, he has prayed for allowing the appeal and to set aside the judgment and decree passed by the trial Court and as well as by the First Appellate Court, which confirmed the judgment of the trial Court. In support of his contention, the learned counsel for the appellant relied upon the following decisions produced along with the list of citations dated : 1. ILR 1992 KAR 2294 Chinnaswamy Vs. Profulla AIR SCW 3803 N.P.Thirugnanam (D) by L.Rs. Vs. Dr.R.Jan Mohan Rao & ors. 3. AIR 2001 SC 2783 A.C.Arulappan Vs. Ahalya Naik (1) SCC 519 Chandrani Vs. Kamal Rani 5. AIR 2003 SCW 1830 Manjunath Anandappa Vs. Tammanasa and others 6. AIR 1997 SC 2630 Venkatappa Gurappa Hosur Vs. Kasawwa (3) KCCR 1476

8 8 Sharanappa (deceased) by L.Rs. Vs. Sumitrabai and Ors. 8. AIR 1997 SC 1751 K.S.Viyanadam and Ors. Vs. Vairavan 7. As against this, the learned counsel for the respondents during the course of his arguments drew the attention of the Court to the document at Ex.P3 and submitted that mutation was not changed till Further relying upon the document at Ex.D1 he has submitted that the mutation was changed only in the year Because of that reason plaintiff was not able to file the suit in time. So far as the payment of remaining consideration amount of Rs.4,500/- is concerned, it is submitted that the witnesses examined before the trial Court on the side of the plaintiff have deposed in their evidence, about the payment and as such, there is no delay in filing the suit. He has also submitted that the substantial questions of law framed by this Court as per Section 16(c) of the Specific Relief Act are not at all the substantial questions of law and

9 9 they do not arise at all and Section 20 of the Specific Relief Act will not come in the way of getting the decree in favour of the plaintiff. He has submitted that there is no impeachment of cross-examination of P.W.2 and that both the Courts below have correctly decreed the suit of the plaintiff-respondents and hence, there are no justifiable and legal grounds for this Court to interfere with the judgments of the Courts below. In support of his contention, the learned counsel for the plaintiff/respondents has relied upon the following decisions filed along with list of citations dated : 1. Gunavanta Bai Moolchand Shah and others Vs. Anton Ellis reported in 2006 AIR SCW 1377 (para 7 of the judgment) 2. Brahmananda & others Vs. K.R.Muthugopal and others reported in AIR 2006 SC 40 (para 36 and 37) 3. P.S.Ramakrishna Reddy Vs. Bhagyalakshmi reported in AIR 2007 SC 1256 (para 19) 4. Balasaheb Dayananda Naik by his LRs., Vs. Appasaheb Dattatreya Pawar reported in 2008 AIR SCW 1183 (para 10, 12, 13 and 14)

10 10 5. Aniglase Yohanan Vs. Ramalatha & others reported in AIR 2005 SCW 4789 considering Section 16 of the Specific Relief Act (para 4, 9, 11, 12 and 13) 6. Akbar Ali Vs. Vinod Khanna reported in AIR 2004 SC 3940 (Section 20 of Specific Relief Act) 7. Section 53-A of TP Act protects possession of the agreement holder (Narasimha Setty dead by his LRs. Vs. Padma Setty reported in 1998(3) KLJ 73(FB) 8. I have perused the averments made in the appeal memorandum, judgment and decree passed by the trial Court so also the judgment and order passed by the first appellate Court and also the oral evidence of the parties adduced before the trial Court and the decision relied upon by counsels on both sides. 9. The first substantial question of law as framed by this Court is, whether the finding of Courts below as to the plaintiff s readiness and willingness to perform his part of the contract of sale can be said to be sustainable in view of Section 16(c) of the Specific Relief Act?

11 In this regard, plaintiff has pleaded in paragraph No.7 of the plaint that plaintiff was always ready and willing to get registration of the sale deed but the defendant with a malafide intention to cause loss and inconvenience to the plaintiff purposefully not executed the registered sale deed and failed to perform his part of the contract. He has also pleaded in paragraph No.8 of the plaint that plaintiff got issued the legal notice dated calling upon the defendant to execute the registered sale deed with respect to the suit schedule property. The notice has been duly served on the defendant and the defendant has not complied with the demands of the notice. So also in the oral evidence, P.W.1 has stated that during the lifetime of his father, he had requested the defendant to execute the registered sale deed and his father informed P.W.1 that the defendant told that he will execute the sale deed. In this connection the learned counsel for the appellant relied upon the following decisions:

12 12 ILR 1992 KAR 2294 in the case of Chinnaswamy Vs. Profulla wherein this Hon ble Court has laid down the proposition as under: SPECIFIC RELIEF ACT, 1963 (Central Act No.47 of 1963) Sections 16 & 20 Specific Performance cannot be granted in favour of person falling under clauses (a) (b) & (c) of Section 16 Person seeking specific performance must be always ready and willing, approach Court with clean hands, adhere to essential terms of agreement with conduct above board Where relationship that of tenant and landlord, mere process of adjusting advance amount does not put an end thereto; since no specific performance, relationship continues- While passing decree for refund, Court to record finding as to nature of possession AIR SCW 1830 in the case of Manjunath Anandappa Urf. Shivappa Hansi Vs. Tammanasa and others. The principle laid down in the said decision is as under: Specific Relief Act(47 of 1963), S.16-Specific performance of contract for sale Readiness and willingness of plaintiff to perform his part of obligation-averment and proof of said requirement of S.16(c) is mandatory Plaintiff not making any averment to that effect - Nor even asked defendant to execute deed of sale in his favour or tendered

13 13 balance amount to consideration to her within period of 3 years from the date of agreement Merely making statement that defendant did not execute sale deed despite notice being issued Do not satisfy mandatory requirement of S. 16(c) Particularly, when notice was served upon power of attorney holder of defendant which was already revoked to knowledge of plaintiff And the power of attorney was not registered one and holder was not competent to execute registered sale deed. (1993)1 SCC 519 in the case of Chand Rani dead by LRs., Vs. Kamal Rani, dead by LRs., Specific Relief Act, 1963 Ss. 9 & 10 and 16 Vendee s suit for specific performance of contract for sale of immovable property Whether time was essence of the contract No presumption exists Can be ascertained from express provisions of the contract, nature of the property and surrounding circumstances Contract stipulating Rs.98,000(rupees ninety-eight thousand only) will be paid by the second party to the first party within a period of ten days only - Despite notices of vendor to perform vendee s part of payment of the stipulated amount, vendee not willing to pay the same unless vacant delivery of possession of part of the property given In view of the express term of the contract coupled with the conduct of vendee, held, time was essence of the contract and vendee was not ready and willing to perform the contract Hence High Court justified in setting aside decree for

14 14 specific performance granted by trial court Contract Act, 1872, S The learned counsel for the respondents relied upon the following decisions: AIR 2006 SC 40 in the case of S Brahmanand and others Vs. K.R.Muthugopal and others and the principle enunciated in the said decision is as under: Limitation Act (36 of 1963), Art.54-Specific Relief Act (47 of 1963), S.16 Contract Act (9 of 1872), S.63 Suit for specific performance of contract-limitation-expression date occurring in Art.54, from which time begins to run-not suggestive of specific calendar date-original agreement had fixed date for performance-but, by subsequent letter defendant requested for postponing performance to future date without fixing any further date for performance-plaintiffs by their act of forbearance and not insisting on performance forthwith accepted postponing performance-time for performance stands extended-case covered by second part of Art.54-Plaintiffs realized that there was refusal to perform, when they were forcibly evicted from the godown- Counted from this date of refusal suit filed within 15 days was perfectly within the period of limitation.

15 15 AIR 2005 SCW 4789 in the case of Aniglase Yohanan Vs. Ramalatha and others the Hon ble Supreme Court held that: Specific Relief Act (47 of 1963) Section 16 (c) - Specific performance of contract- Readiness and willingness to perform terms of contract-court is to grant relief on basis of conduct of person seeking relief-clear averment in plaint that plaintiff purchaser was always ready to get sale deed prepared after paying necessary consideration-order decreeing suit for specific performance of contract in favour of the plaintiff, proper. 12. Perused the principles enunciated in the said decisions and the materials on record by way of pleadings and oral evidence of the parties. Plaintiff has produced the copy of the legal notice Ex.P4, postal receipt Ex.P5 and document for sending notice under certificate of posting Ex.P6. By its judgment and decree, both the Courts below have held that plaintiff was ready and willing to perform his part of the contract. But it is the contention of the appellantdefendant that no such notice was sent to him and the respondents have not produced acknowledgement to

16 16 show that such a notice was sent and served on the appellant-defendant. It may be true that the the plaintiff has not produced the acknowledgement before the trial Court for having served the legal notice on the appellant-defendant. But looking to Exs.P5 and P6, the documents sending the notice under registered post and certificate of posting and perusing the address mentioned in the said certificate of posting, it is seen that it is sent to the address of the appellant-defendant as mentioned in the agreement of sale Ex.P2. During the course of trial, it was not the case of the appellantdefendant that he has changed his address subsequent to the execution of Ex.P2 sale agreement. Therefore, under Section 27 of the General Clauses Act, 1897 there is a presumption that the notice if it is properly addressed and sent to the addressee, the same has been reached to the addressee. Not only that, the contention of the appellant-defendant that he has not received the legal notice is also to be appreciated looking to his conduct in the proceedings before the trial Court.

17 17 Though in the written statement he has admitted execution of the agreement of sale, but only contended that he has not received the consideration amount of Rs.39,000/-. But in the oral evidence of D.W.1, he has denied the execution of the agreement of sale Ex.P2. Referring to the decisions relied upon by both sides with regard to readiness and willingness of the plaintiff as required under Section 16(c) of the Specific Relief Act, I am of the opinion that plaintiff has pleaded and proved his readiness and willingness to perform his part of the contract. Therefore, the decisions relied upon by the counsel for the appellant-defendant will not help him in view of the material placed on record by way of pleadings and the evidence of parties on both sides. Therefore, the finding recorded by the Courts below regarding the plaintiffs readiness and willingness to perform his part of the contract are in accordance with mandatory provisions of Section 16(c) of the Specific Relief Act. No illegality has been committed by the Courts below nor there is any perverse or capricious

18 18 view taken by the Courts below in recording such finding. 13. The second substantial question of law framed by this Court is, whether the grant of decree of specific performance can be sustained in law in the absence of trial Court taking note of provisions of Section 20 of the Specific Relief Act? 14. In this connection, the learned counsel for the appellant has relied upon the following decisions: AIR 2001 SC 2783 in the case of A.C.Arulappan Vs. Smt.Ahalya Naik wherein it is held as under: Specific Relief Act (47 of 1963), S.20(2) Decreeing specific relief Is lawful discretion of Court-Circumstances under which discretion to be exercised, stated-terms and conditions of agreement showed that plaintiff is trying to take unfair advantage over defendant-plaintiff also not approached Court with clean hands-not entitled to decree of specific performance of contract.

19 (3) KCCR 1476 in the case of Sharanappa (deceased) by L.Rs. Vs. Sumitrabai and others wherein the Karnataka High Court has held as under: Specific Relief Act, 1963-Section 20-claim for specific performance of agreement of sale-long silence on the part of agreement holder-if shows readiness and willingness to perform his part of contract. The learned counsel for the respondents has relied upon the decision reported in AIR 2007 SC 1256 in the case of P.S.Ramakrishna Reddy Vs. M.K.Bhagyalakshmi and another wherein it is held as under: (B) Specific Relief Act (47 of 1963) S.20- Specific performance-agreement to sell-relief of specific performance-cannot be denied on the ground that price of immovable property is on rise. 15. I have perused the principles enunciated in the above decisions relied upon by both the sides. But in the written statement filed by the defendant before the trial Court there is no mention by the defendant that if the suit for specific performance is decreed he

20 20 will be put to greater hardship either on the ground that he is having the only land or on the ground that there is a rise in the market value of the landed property at the said place. The contents of agreement of sale Ex.P2 goes to show that he is selling the suit schedule property to the respondents/plaintiff as he intends to purchase another land. Therefore, when it is not the case of the defendant in his pleadings that he will be having such hardship in case the suit for specific performance is decreed, the grant of specific performance decree in favour of the plaintiffrespondents cannot be denied only on the presumption that it will cause hardship to the appellant-defendant. While discussing issue No.4, trial Court has considered all these aspects and ultimately has recorded the finding in favour of respondents/plaintiff, which has been confirmed by the first appellate Court. Therefore, in view of the materials on record, both oral and documentary, it cannot be said that the trial Court has not at all taken note of Section 20 of the Specific Relief

21 21 Act while decreeing the suit of the respondents/plaintiff. As the appellant/defendant has not made out his case by way of pleadings, so also with the oral evidence before the trial Court, the decisions relied upon by the learned counsel for the appellant on the ground of hardship as enunciated in Section 20 of the Specific Relief Act will not support the case of the appellantdefendant. 16. The third substantial question of law framed by this Court is, whether the suit of the plaintiff was barred by time? 17. I have perused the agreement of sale Ex.P2. In the said document there is no mention within which time the registered sale deed is to be executed in favour of the plaintiff. But the recitals of Ex.P2 goes to show that the total consideration amount is fixed as Rs.44,000/- and he has received the advance consideration amount of Rs.39,000/- in the presence of

22 22 the witnesses to Ex.P2 and regarding the remaining consideration of Rs.5,000/- it is mentioned that whenever plaintiff calls him to register the sale deed, he will come and execute the registered sale deed and he will receive the remaining consideration of Rs.5,000/-. So the recitals of Ex.P2 agreement of sale goes to show that it was not the intention of the parties to treat time as the essence of the contract. The plaintiff has pleaded in paragraph No.3 of the plaint that subsequently, the defendant on demanded the remaining consideration amount and plaintiff paid Rs.1,500/- in the presence of the scribe for which the defendant was not satisfied. Hence, the defendant also received another Rs.3,000/- on the same day and agreed to make different shara in the original sale agreement and also agreed to put his signature for having received the further consideration amount of Rs.1,500/- and Rs.3,000/-. But immediately after receipt of the amount, the defendant was not available for the plaintiff to get the signature for the shara and he was also not

23 23 available to get registration of the sale deed in favour of the plaintiff with respect to the suit schedule property. Both the Courts below by their judgment and decree have held that plaintiff was not able to prove this fact with the satisfactory evidence. 18. It is the contention of the appellant-defendant that even according to the plaintiff the date for execution of the sale deed starts from and the suit has been filed in Hence, it is barred by time. On this point, learned counsel for the appellant has relied upon the following decisions: AIR 1997 SC 2630 in the case of Venkatappa Gurappa Hosur Vs. Kasawwa, C/o Rangappa Kulgod wherein the Hon ble Supreme Court has laid down the preposition as under: Limitation Act (36 of 1963), Art.54-Specific performance of agreement for sale-cause of action-accrual-alleged vendor under agreement filing suit for possession of property under agreement-amounts to denial of existence of agreement by vendor- Cause of action for suit (limitation) starts

24 24 from date of vendors suit for possession- Notice issued by plaintiff purchaser after vendor s suit was decreed-wound not stop limitation from running-suit filed beyond 3 years from date of vendors suit-barred. AIR 1997 SC 1751 in the case of K.S.Vidyanadam and others Vs. Vairavan wherein it is held as under: Specific Relief Act (47 of 1963), S.20- Specific performance-agreement to sale- Certain time limit prescribed for taking steps by one or other party-may not amount to making time the essence of contract but must have some significance-cannot be ignored altogether by Court-Total inaction on part of purchaser for 2 ½ years in violation of terms of agreement-delay coupled with substantial rise in prices of properties-it would be inequitable to give relief of specific performance to purchaser. 19. The learned counsel for the respondents has relied upon the following decisions: (i) (ii) 2006 AIR SCW 1377 in the case of Gunavanta Bai Moolchand Shah and others Vs. Anton Ellis 2008 AIR SCW 1183 in the case of Balasaheb Dayananda Naik by his LRs. Vs. Appasaheb Dattatreya Pawar (iii) 1998(3) KLJ 73(FB) in the case of Narasimha Setty dead by his LRs., Vs. Padma Setty

25 Looking to the pleadings in the plaint, it is seen that the plaintiff has not at all pleaded that on itself the appellant-defendant refused to execute the registered sale deed. But, what he has pleaded is, after receiving further consideration amount of Rs.1,500/- and Rs.3,000/- the defendant was not available for obtaining the signature to the shara for the payment of the said amount and accordingly, he has given his evidence before the Court. It is also not the case of the appellant-defendant that he refused on itself to execute the registered sale deed. But it is his contention that on that day, he was not at all present nor received further consideration of Rs.4,500/- and no shara has been made in his presence. Not only that, the pleadings and the judgment and decrees passed by both the Courts below goes to show that in view of the agreement of sale Ex.P2, the appellantdefendant handed over possession of the suit schedule property to the plaintiff and therefore, there is a part performance of the agreement of sale in compliance of

26 26 Section 53A of the Transfer of Property Act. The decree passed by the trial Court goes to show that the appellant-defendant has been permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff, which finding has been confirmed by the First Appellate Court. It is also the case of the plaintiff that in the year 1993 the defendant has set up his vendor to file a suit against the plaintiff for injunction and in the said suit, the vendor of the defendant has also sought for temporary injunction against the plaintiff, but the said application seeking temporary injunction has been dismissed by the Court. These aspects clearly goes to show that the plaintiff-respondents has been put into actual possession and enjoyment of the suit schedule property and hence, there is a part performance of the agreement of sale. 21. Though, it is contended by the appellantdefendant that the suit filed in the year 1994 is barred

27 27 by time, but the conduct of the defendant is also important in appreciating the facts of the case. The material produced before the Court goes to show that till 1993, the name of the vendor of the appellantdefendant continued in column No.9 of the RTC extracts and the defendant has not taken any steps to get the name of his vendor deleted and to enter his name to the suit schedule property. The same is evident by the document produced by the defendant himself as per Ex.D1, the mutation extract. Looking to this document it is seen that the mutation was effected in deleting the name of Miyasab, the vendor of the appellant-defendant and entering the name of the appellant-defendant to the khata and to the pahani in respect of the said property. This goes to show that till 1993, defendant has not taken steps to get his name entered to the suit schedule property, though, he purchased the suit property from his vendor in the year It is the allegation of the plaintiff that the defendant in order to avoid execution of the sale deed in

28 28 favour of the plaintiff has set up his vendor in the year 1993 to file a suit against the plaintiff and when he came to know the intention of the defendant, issued legal notice to the defendant to execute the registered sale deed in favour of the plaintiff by receiving remaining consideration amount. Perusing the materials on record and also the legal position, the Courts below have rightly held that the suit is not barred by time and accordingly, have decreed the suit and granted the relief in favour of the plaintiff. 22. It is no doubt true that both the Courts have held that plaintiff was not able to prove that on , the defendant received further consideration amount of Rs.1,500/- and Rs.3,000/- totally Rs.4,500/- as per the shara made on Ex.P2, agreement of sale and that defendant was not available for obtaining his signature to the said shara. But only on this ground it cannot be said that plaintiff has pleaded false facts and is not honest and fair, in approaching the Court,

29 29 seeking the discretionary relief of specific performance of the agreement of sale, which otherwise, has been proved satisfactorily as per the concurrent findings of the both the Courts below. Therefore, looking to all these materials on record, I am of the opinion that the suit of the plaintiff is not barred by time and the findings of the Courts below are in accordance with law and no illegality has been committed by the Courts below in coming to such conclusion. 23. In view of the above discussions on the substantial questions of law framed by this Court, I am of the opinion that there is no merit in the appeal and hence, the Regular Second Appeal filed by the appellant-defendant is hereby dismissed. bkp Sd/- JUDGE