Bombay High Court
Pundlik Narayan Mahure vs Keshao Narayan Mahure (Dead) ... on 27 September, 2021
Bench: S. M. Modak
1 sa 55-2008.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO. 55/2008
1) Pundlik s/o Narayan Mahure,
Aged about 66 years,
Occupation Agriculturist,
R/o Gumgaon, Tahsil Hingna,
District Nagpur. .....APPELLANT
(ORIGINAL DEFT.)
...V E R S U S...
1) Keshao s/o Narayan Mahure,
Aged about 64 years,
Occupation Agriculturist,
R/o Gumgaon, Tahsil Hingna,
District Nagpur.
Lrs. of Respondent No.1
1(i) Smt. Indira wd/o Keshav Mahure,
Aged about 60 years, Occ. Nil,
1(ii) Shri Shankar s/o Keshav Mahure,
Aged about 40 years, Occ. Not known,
1(iii) Shri Lankesh s/o Keshav Mahure,
Aged about 35 years, occ. Not known,
Matter is abated
against R
No..1(iv) as per 1(iv) Rekha d/o Keshav Mahure,
order dated Aged Major, Occ. Not known,
26/09/2019
1(v) Late d/o Keshav Mahure,
Aged major, Occ. Not known,
1(vi) Pramila d/o Keshav Mahure,
Aged major, Occ. Not known,
All R/o Gumgaon, Tahsil Hingana,
Dist. Nagpur. ...RESPONDENT
(ORIGINAL PLTFF.)
::: Uploaded on - 28/09/2021 ::: Downloaded on - 29/09/2021 02:31:57 :::
2 sa 55-2008.odt
-------------------------------------------------------------------------------------------
Mr. A.K. Choube, Advocate for appellant.
Mr. P.K. Mishra, Advocate for respondents.
-------------------------------------------------------------------------------------------
CORAM :- S.M. MODAK, J.
RESERVED ON :- 06/08/2021
PRONOUNCED ON :- 27/09/2021
JUDGMENT
Heard finally.
2. This is defendant's second appeal preferred against the
judgment dated 16/01/2008 passed by the First Appellate Court,
Nagpur. The judgment was pronounced in a first appeal preferred
by the plaintiff. Plaintiff's suit for possession was dismissed by the
Trial Court. Whereas he succeeded before the First Appellate
Court.
3. The defendant was directed to handover possession of
the suit land to the plaintiff and the plaintiff was asked to deposit
Rs.7,000/- in the Court. That is how the defendant has
approached to this Court.
Background
4. Both the plaintiff and defendant are the real brothers.
There was a partition of properties/lands in between them and
3 sa 55-2008.odt
other co-sharers. It was effected in the year 1973. All the sharers
were allotted lands in that partition. There is no dispute amongst
the parties about partition. But there is dispute between them
about exact area of land allotted to each of them.
5. The suit land admeasuring about 1 ½ acres and it is
part of land middle portion shown in the map out of land bearing
Survey No.76/2, 3 and 4. It is situated at Khadaka, Tahsil Hingna,
District Nagpur. Plaintiff claims that he got 5 acres of land in
partition effected in the year 1973 and defendant too got 5 acres
of land. Plaintiff's claim is that subsequently in the year 1980 land
admeasuring 5 acres of land (out of 5 acres of land allotted to his
share) was put in possession of the defendant towards repayment
of Rs.6500/-. It was plaintiff's case that once the amount will be
paid, defendant has agreed to handover back the possession to the
plaintiff. Whereas as per the defendant, though he is in possession
of 1 ½ acres of land, it is not as per the theory put up by the
plaintiff. He claims to be in possession of the suit as per their
mutual partition of the year 1973. He has also disputed the
allocation of shares as alleged by the plaintiff. According to him, it
is 3 acres to plaintiff and 7 acres to defendant (and not 5 acres
each). As defendant failed to return possession of suit land inspite
4 sa 55-2008.odt
of offering of Rs.6500/- by the plaintiff, he filed a suit for
possession.
Filing of suit
6. On the basis of these pleadings, both the parties
adduced oral and documentary evidence. Though the plaintiff
relied upon two written agreements, he has not produced their
originals. The details of those agreements are as follows:-
a) Agreement dated 06/11/1980 (thereby the defendant Pundlik
agreed to sell his right over well water to plaintiff for Rs.7000/-)
b) Agreement dated 17/06/1981 executed by the plaintiff alone in
favour of defendant (thereby giving his land bearing Patwari
Halka No.45 admeasuring 2 acres and plaintiff agreed to take back
field on payment of Rs.7000/-).
It is very interesting to note that the defendant who denied the
theory putforth by the plaintiff and also execution of any
agreement, he himself has produced photocopies of two
agreements.
Trial Court refused to accept the two agreements as
corroborative piece of evidence for the plaintiff's theory. Trial
5 sa 55-2008.odt
Court has considered the second agreement as a deed of
mortgage. Admittedly it was not registered. Hence, it was not
admitted into evidence by the trial Court. Resultantly, the suit was
dismissed.
First Appeal
7. Whereas the First Appellate Court observed that the
agreement dated 17/06/1981 will amount to mortgage and still
was pleased to decree the suit. However, the First Appellate Court
has not dealt with the objection of non registration of the
agreement dated 17/06/1981.
Second Appeal
8. On this background, defendant has filed this appeal.
This Court was pleased to frame one substantial question of law
about "effect and consequences of those agreements". When this
Court heard the arguments of learned Advocate Shri Choube for
appellant/defendant and learned Advocate Shri Mishra for
respondent/plaintiff, this Court find it necessary to frame one
more substantial question of law.
6 sa 55-2008.odt
9. Accordingly this appeal was heard on following
substantial questions of law :-
Sr. Question Findings
No.
1. What is the effect and i) photocopy of agreement
consequences of the dated 06/11/1980 is
photocopies of the two accepted.
agreements? ii) photocopy of agreement
dated 17/06/1981 can not
be considered.
2. Whether the First Appellate In the affirmative
Court committed wrong in
accepting the photocopy of
the agreement dated
17/06/1981 and considering
it as a mortgage deed?
10. The additional substantial question was framed for the
reason that there was also a dispute about nature of the
agreement dated 17/06/1981. That is to say whether it is
mortgage deed or not. Even though substantial questions are
centered around "the agreement is mortgage deed or not" the
background needs to be considered. If we read the pleadings and
evidence, there are three aspects. They are as follows:
a) The partition in between the plaintiff, defendant and other
brothers.
b) Purchase of defendant's right to use well water by the
7 sa 55-2008.odt
plaintiff and
c) Putting the defendant into possession of 1 ½ acres of land
till the time plaintiff will pay Rs.6500/- (towards purchase
price for right to use well water).
11. The fact of giving possession of 1 ½ acres of land to
defendant, it has got connection to the distribution of land during
partition of the year 1973. There is a version and counter version.
Plaintiff claims that he and defendant got 5 acres of land each.
And out of that, 1 ½ acres is handed over to defendant. Whereas
defendant claims that the land of 1 ½ acres possessed by him is
not as per the theory put by the plaintiff but in fact he received 7
acres of land and plaintiff received only 3 acres of land during
partition.
12. If we have read the finding given by the Trial Court, we
may find that 'the issue of partition in the year 1973' was
answered in favour of the plaintiff. Whereas "the issue of
distribution of ½ acre of land in between plaintiff and defendant"
was answered in the negative. (page no.42) Non examination of
other sharers of the partition by the plaintiff and not producing
memorandum of partition were considered as reasons for not
8 sa 55-2008.odt
believing the case of distribution of shares. (page 46 and 47)
Whereas the First Appellate Court has framed one common point
for both the issues and answered it in favour of the plaintiff.
Defendant has not produced any evidence to substantiate the
theory of 7 acres was considered by the First Appellate Court
against the defendant. (para no.7)
This Court has not framed any substantial question of
law "regarding appreciation of evidence by the First Appellate
Court on the point of partition and allocation of shares." Even
neither of the learned Advocates have argued on that aspect. So
this Court is not expressing any opinion on that aspect. Even
otherwise if looked from another angle paramount consideration
is whether there was transaction of mortgage. It has come in the
cross-examination of plaintiff Keshav that Vishwanath has filed
Regular Civil Suit No.523/1979 for partition.(page 77) This Court
is not aware about outcome of that proceedings. Hence the Court
seized of the matter is competent to express opinion on that
aspect. Even otherwise issue of partition is not the principle issue
but secondary/ancillary issue in the present matter.
Submission on behalf of defendant-appellant
13. The plaintiff has examined himself and two attesting
9 sa 55-2008.odt
witnesses of the second agreement. Two agreements were not
exhibited before the Trial Court. Learned Advocate Shri Choube
submitted that if this evidence in toto is considered together, it
amounts to the transaction of mortgaging the suit land by the
plaintiff to defendant. According to him, if there is a mortgage
deed, registration under Section 59 of the Transfer of Property Act
is mandatory. It is submitted that the First Appellate Court has not
dealt with the issue of non registration of the second agreement.
He relied upon the following judgments:
i) Ramakanta Deb Roy and another Vs. Shri Amalendu Dutta and
others reported in 1990 (1) Gauhati Law Reports 323, there was
an issue raised on behalf of the defendant that the agreement is
not a usufructuary mortgage but only a contract and as such does
not require registration. It has been held "mortgage also is an
agreement between the mortgagor and the mortgagee by which a
transfer of interest in specific immovable property is made for the
purpose of securing the payment of money (para 10). It was
further held that "usufructuary mortgage" is one of the species of
'contract' and it is subject to provisions of Section 59 of the
Transfer of Property Act and can be effected only by registered
instrument. (para 13)
ii) Vishwanath Dadoba Karale Vs. Parisa Shantappa Upadhye
10 sa 55-2008.odt
reported in (2008) 11 Supreme Court Cases 504 - the Hon'ble
Supreme Court has observed about differentiation from mortgage
by conditional sale and a sale with an option to repurchase. The
real nature of transaction that is mortgage or sale can be
ascertained from language of the document and attending
circumstances. The document was held as a mortgage.
14. As against this learned Advocate Shri Mishra submitted
that the plaintiff has nowhere pleaded and deposed that the
transaction as evidenced in the agreements would amount to
mortgage. Except at one stage, plaintiff has nowhere referred this
transaction as that of mortgage. Hence according to him
registration is not required. Learned Advocate Shri Mishra relied
upon following judgments:
a) Ganpat and others Vs. Nanaji and another reported in AIR
1981 Bombay 335 - The issue involved was whether the document
in question is a release deed or mortgage deed. The owner/vendor
of the land has agreed to sell the land to the purchaser. The
purchaser paid certain earnest money. The transaction could not
be materialized. The vendor was liable to return earnest amount.
So instead of returning that amount, he entered into an agreement
with the purchaser. He put the purchaser into possession for five
11 sa 55-2008.odt
years. This Court has interpreted the difference between a deed of
mortgage and deed of lease. After considering the contents of the
document, it was held that the transaction is not of a mortgage but
a lease.
b) Namadev Keshav Hindalekar Vs. Nazar Sheriyar Mazada
reported in AIR 1983 Karnataka 19 - there was an issue whether
the document is a lease deed or mortgage deed. While deciding
such an issue what should be the approach of the Court, that has
been laid down.
"Nomenclature given to a document by the scribe or
even by the parties is not always conclusive. In construing a
document, it is always necessary to find the intention of the party
executing it and such intention has to be gathered from the
recitals and the terms in the entire document and from
surrounding circumstances". (para 12)
While elaborating the difference in between mortgage
and lease, it has been observed "when interest in property is
transferred as a security for repayment of debt, it is a mortgage
whereas in a lease it is a transfer of a right to enjoy the property".
(para 12)
c) According to learned Advocate Shri Mishra, the
transaction was not that of a mortgage and as such registration is
12 sa 55-2008.odt
not compulsory. To buttress his submission he relied upon a
judgment in case of Dattatreya Shanker Mote and others Vs.
Anand Chintaman Datar and other s reported in (1974) 2 Supreme
Court Cases 799. The Hon'ble Supreme Court has interpreted the
difference between a transaction of charge and mortgage. It was
held that "charge can be created either by act of parties or by
operation of law whereas the mortgage can only be created by act
of parties. Charge is a wider term and includes mortgage, every
mortgage is a charge but every charge is not mortgage". (para 7)
What are the effect of every kind of transfer of property and
different phraseography used in different sections of the Transfer
of Property Act is also explained. (para 15, 16 and 17) In case of a
charge the transferor has a subsisting interest though limited to
some extent by the charge-holder's right to recover the monies
due from the specific immovable property. Whereas in case of
mortgage, the mortgagor has the equity of redemption left in him.
(para 17)
15. If we consider the principles laid down in above
referred judgments, following principles emerges :-
a) The title given to document is not important, we have to
consider the contents of the agreement.
13 sa 55-2008.odt
b) The intention of the parties for executing that document
is important and it can be inferred from contents of that
document and by surrounding circumstances. If it is a
mortgage, it requires attestation by two witnesses and
registration (Section 59 of Transfer of Property Act).
c) Mortgage involves transfer of an interest for securing
payment of the debt (as compared to the lease wherein
there is a transfer of right to enjoy the property).
d) Only because the liability is past and for discharging that
liability lease deed has been executed, a relationship
does not turn into that of mortgagor or mortgagee.
e) Charge can be created by act of parties or by operation
of law whereas mortgage can only be created by act of
parties.
f) Charge is a wider term and it includes mortgage also
and in that every mortgage is a charge but every charge
is not a mortgage.
g) Section 100 of the TP Act does not lay down a specific
manner or procedure as to how charge is created. That
is to say the procedure about registration and attestation
as described in Section 59 of the TP Act.
h) In mortgage there is transfer of interest that is to say
14 sa 55-2008.odt
right to appropriate balance amount and right to sell the
mortgage property. Whereas a charge only gives right to
payment out of property without transferring that
property.
i) If instrument creates a charge of the value of more than
Rs.100/-, the document must be registered under
Section 17 (1) (b) of the Registration Act. (para 17 of
the judgment in case of M.L. Abdul Jabhar Sahib Vs.
H.V. Venkata Sastri and others reported in AIR 1969
Supreme Court Cases 1147.
Findings of the Courts
16. It will be material to consider the findings of the Court
below on the aspects about the nature of second agreement. The
findings of the First Appellate Court are as follows:
i) The first appellate Court had posed a question before himself
"as to whether the documents can be said to be proved and could
be read in evidence" . The finding given is
" Both the agreements could be read in evidence".
While coming to this conclusion, First Appellate Court relied upon
the provisions of Sections 65 and 66 of the Evidence Act. The
15 sa 55-2008.odt
original of these agreements were not traceable to defendant. The
admission given by defendant that there was an agreement for
sale was also considered.
ii) It was further observed that,
"possession was delivered as a security and it may
amount to mortgage. The mortgagor has every right to redeem the
property till decree of foreclosure is passed. Even otherwise, on
the basis of title, the plaintiff can claim the possession of the
property since the time defendant refused to accept money as per
agreement, more particularly in view of agreements and when
defendant failed to prove that he got 7 acres land in partition".
17. Learned Advocate Shri Choube has challenged these
findings. According to him the First Appellate Court has not dealt
with the necessity of registration of the deed of mortgage. He
invited my attention to the relevant observations from the Trial
Court judgment.
Observations by Trial Court
"The defendant has taken objection for referring the
document as it is not admissible in evidence. The
plaintiff has tried to refer the copy of unregistered
mortgage deed in the evidence. As per the Section 59 of
16 sa 55-2008.odt
the Transfer of Property Act, the mortgage deed must be
registered, otherwise it is not admissible in the
evidence".
Conclusion
18. On this background when the evidence adduced by the
plaintiff and defendant are perused we may find that plaintiff in
his evidence has stated following facts:
" fofgjhps ik.kh djhrk deh iMr vlY;kus eh iz ok lkafxrys dh eh fofgj
fodr ?ks.;kl r;kj vkgs o rks eatwj >kyk lgk gtkj ikp'ks :i;kr fod.;kps
Bjys fofgj fod.;kpk lkSnk lu 1980&81 lkyh >kyk izrhonhus fofgj [kjsnhpk
djkj ekÖ;k lkscr dsyk gksrk rks djkj lu 1980&1981 lkyh dj.;kr vkyk
gksrk i.k iSlkP;k v<p.kh eqGs eh rks djkj d: 'kdyks ukgh- "
This is so far as the first agreement is concerned.
19. In respect of second agreement the plaintiff has
deposed thus:
" R;kuarj 1981&1982 e/;s ijr fofgj [kjsnhpk djkj ekÖ;k o iz n` oknhr >kyk
o eh iSlkps ekscnY;kr iz-ok- dcqy dsys gksrs dh nksu ,dj 'ksr R;kP;k dMs xgk.k
Bsorks o djkj iq.kZ djrks vkf.k jdesph O;oLFkk >kY;kl tehu lksMoqu ?ksbZy R;kuarj
eh 1985&1986 lkyh iz- ok- dMs nksu ,dj tehu lksMqu fofgjhph jDde :-
17 sa 55-2008.odt
[email protected]& ?ks.;kl udkj fnyk o xgk.k Bsoysyh tfeu R;kP;k Lor%pk ekydhph
vkgs vls lkaxr gksrk- "
20. It is an admitted fact that those two agreements are not
produced by the plaintiff. But they were produced by the
defendant. Both the witnesses though may not be aware about
exact contents of the agreement, their evidence suggest that they
have attested the second agreement. Whereas defendant Pundlik
in his evidence has denied execution of any agreement and sale of
right to well water for Rs.6500/-. During cross examination he
was confronted with the list of documents at Exhibit 13 filed by
him and the agreement filed at Sr No.1. He admits production of
document as per list at Exhibit 13. He admits possession of their
originals but losing the originals. From this evidence there is
reason to believe that two agreements were certainly executed
between plaintiff and defendant.
21. The nature of second agreement has to be tested on the
background of above evidence. The following facts emerge-
a) He had given two acres of the land to defendant in
consideration of the money to be paid towards well
water.
18 sa 55-2008.odt
b) It was decided to release the land on payment of the
amount.
c) Defendant refused to release the land on payment
offered by the plaintiff.
Findings
22. The emphasis of learned Advocate Shri Mishra is that
there is only reference of mortgage at one stage and the
transaction cannot be considered as a mortgage. If we consider
the principles reproduced above and the evidence, we may find
that the following ingredients are missing:
a) right to sell mortgaged property if the dues are not cleared,
b) right to appropriate usufruct towards outstanding.
These ingredients are explained in types of mortgages laid down
in Section 58 of the TP Act. Any transaction can be described as
'mortgage' when if it falls within a meaning of mortgage under
Section 58 (a) of the TP Act and satisfying requirement of one of
the kinds of mortgage given in Section 58 of the TP Act. The
phrase "transfer of an interest" used in Section 58 (a) has to be
understood in the context of kinds of mortgages given in Section
58 (b-g) of the TP Act. Merely because at the one stage plaintiff
19 sa 55-2008.odt
has referred the word 'mortgage' transaction will not amount to
mortgage unless its ingredients are satisfied'. So when that
ingredients are not there, it is difficult to believe that their
transaction is of mortgage. Learned Advocate Shri Mishra is right
that the transaction will not amount to mortgage. However, this
much observation is not helpful to the plaintiff. Because the
transaction may amount to charge. The ingredient about transfer
of an interest is absent and hence the transaction may amount to
creation of charge. As explained in case of Dattatreya
Mote(supra), in case of charge- interest is not transferred but
there is only a right to payment out of property. Present case falls
into that category. However as the second agreement is reduced
into writing, the provisions of Section 17 (1)(b) of Registration
Act are applicable. As held in case of M.L. Abdul Jabhar Sahib
(supra), charge reduced into writing also requires registration (as
it is the act of the parties). The First Appellate Court has wrongly
concluded that it is transaction of mortgage. It was overlooked
that "the ingredient about transfer of an interest" is missing. So
the findings of the Appellate Court that it is a mortgage is required
to be set aside.
23. Section 49 of the Registration Act bars the Court from
20 sa 55-2008.odt
receiving any document in evidence if such document is required
to be registered. The requirement of registration may be under
Section 17 of Registration Act or by provision of TP Act. The
provisions of Section 17 (1)(b) of the Registration Act will come in
to picture. So the second agreement being unregistered cannot be
considered in evidence.
Mode of proof
24. It is admitted fact that the originals of two agreements
were not produced. The Trial Court rightly refused to admit the
second agreement in evidence as it is unregistered. Trial Court
rightly observed "therefore the copy of which the plaintiff has
tried to refer it in evidence by way of secondary evidence is also
not admissible" (para 17). Whereas the First Appellate Court
though was right in accepting the plaintiff's evidence as secondary
evidence has overlooked the issue about necessity of registration.
In para nos.8 and 9 of the judgment, the First Appellate Court has
rightly considered the proof of circumstances by the plaintiff to
adduce secondary evidence. But it is settled law that primary or
secondary evidence can be given in respect of document which is
admissible in evidence. The document i.e. agreement dated
21 sa 55-2008.odt
17/06/1981 which is inadmissible in evidence cannot be tendered
even if it is original. The First Appellate Court has totally
overlooked this fact. However there was no wrong on the part of
First Appellate Court in considering photocopy of first agreement
dated 06/11/1980 as the case for secondary evidence is made out.
Use for collateral purpose
25. Learned Advocate Shri Mishra alternatively submitted
that unregistered agreement can be considered for collateral
purpose as contemplated in proviso to Section 49 of the
Registration Act. In order to buttress the submission he relied
upon following judgments:
a) S. Kaladevi Vs. V.R. Somasundaram and others reported in AIR
2010 Supreme Court Cases 1654. In the said judgment, the
Hon'ble Supreme Court dealt with an issue about considering
unregistered sale-deed in evidence. There was a suit for specific
performance on the basis of sale-deed. Though it was lodged for
registration, it could not be registered due to an order attaching
the property. When unregistered sale-deed is tendered in evidence
not as an evidence of completed sale, but as a proof of oral
agreement, it can be received in evidence. It is important to note
22 sa 55-2008.odt
that in above mentioned case, the suit was for specific
performance and proviso to Section 49 of the Registration Act
permits consideration of unregistered agreement.
b) In case of Thulsidhara and another Vs. Narayanappa and others
reported in 2019 (3) Civil Law Journal 882, unregistered deed of
partition was considered as a family arrangement. It was
described as Palupatti means list of properties partitioned. (para
no.9)
26. The law on the point of "use of compulsorily registrable
agreement not registered for collateral purpose" is well settled.
The collateral purpose is a purpose other than the main purpose. It
must be independent of main purpose. The law on this point is
summarized by the Hon'ble Supreme Court in case of K.B. Saha &
Sons (P) Ltd. V. Development Consultant Ltd . reported in (2008)
8 Supreme Court Cases 564. The Principles were summarized in
para no. 34 of the said judgment.
27. So I am afraid that the unregistered deed can be
considered for collateral purpose. The collateral purpose
suggested by learned Advocate Shri Mishra was "evidencing
transaction in between the plaintiff and defendant not as a
23 sa 55-2008.odt
mortgage". The purpose suggested by him is founded on the
ingredients of mortgage only. So the said purpose cannot be said
to be independent of the main purpose for which the plaintiff
made an attempt to consider as evidence.
Conclusion
28. For the above discussion the transaction in between
plaintiff and defendant recorded in the agreement dated
17/06/1981 was certainly a transaction amounting to charge. The
second agreement being unregistered cannot be considered as
evidence of mortgage transaction. It cannot be considered for
collateral purpose too. The First Appellate Court though has
rightly given benefit of secondary evidence to the plaintiff, has
committed wrong in reading that document into evidence. It is
more strange on the part of First Appellate Court to consider that
agreement in evidence in spite of giving a finding that the
agreement is a mortgage. The said finding needs to be set aside.
Even if the first agreement dated 06/11/1980 is proved, it can
only suggest that defendant sold his right to use well water. On
that basis any inference about possession of suit land handed over
to defendant cannot be drawn.
24 sa 55-2008.odt
29. The scope of second appeal is limited but if the finding
of First Appellate Court is based on non consideration of legal
provisions, this Court can step in and can correct the findings. So
this Court has to conclude that plaintiff has failed to prove his case
of mortgage by adducing legal admissible evidence. Hence "this
Court concludes that photocopies of two agreements have no
evidentiary value and question no.1 is answered accordingly". So
also the First Appellate Court has wrongly admitted the agreement
into evidence and hence that question has to be answered in the
affirmative. Hence the judgment and decree passed by the First
Appellate Court needs to be set aside and that of the Trial Court
needs to be restored. Hence the following order is passed:
ORDER
i) Second appeal is allowed.
ii) The judgment and decree passed by the Court of Ad-hoc
District Judge No.1, Nagpur dated 16/01/2008 in
Regular Civil Appeal No.457/1997 is set aside.
iii) The judgment of the Trial Court thereby dismissing the
suit is restored.
iv) If the plaintiff/respondent has deposited Rs.7000/- (as
25 sa 55-2008.odt
directed by First Appellate Court), it be retained to his
legal representatives.
30. Parties to bear their own costs.
JUDGE
R.S. Sahare
