JUDGMENT 1. - This appeal has been against the judgment of the learned Addtional District Judge. Churu dated April 21, 1976 by which the plaintiff-appellant's suit filed under Section 53, Transfer of Property Act has been dismissed. 2. The plaintiff-appellant filed the said suit with the averments, in short as follows. About 15 lacs were outstanding against the defendant- respondent No. 1 Prithvi Raj Daga as arrears of income-tax relating to several assessment years including assessment year 1952-53. During the penalty proceedings taken against him, it was revealed that he had transferred all his immovable properties, specifically described in Para No. 8 of the plaint the plaintiff-respondent No. 2 Sujangarh Investment and Trading Company for Rs. 93,000/- through registered sale-deed dated March 5, 1956. This sale-deed was void as it was executed to defeat the claim of the plaintiff and other creditors and it was without consideration. The defendant respondent Company was incorporated with this object and the members of the family and relations of the defendant respondent Prithvi Raj were only its share holders. Out of the properties sold, the defendant- respondent Company has transferred a' Nohra' to the defendant- respondents No. 3 to 8 through registered sale-deed dated March 19, 1959. It was also a sham transaction. Both these transactions were benami transactions. 3. The defendant-respondent Nos. 1 and 2 admit in their separate written statements that the sale-deed dated March 5, 1956 transferring the immovable properties was executed by the defendant No. 1 in favour of the defendant No. 2 for a consideration of Rs. 93,000/- The defendants Nos. 2 and 3 to 8 admit in their separate written statements that sale-deed dated March 19, 1959 was executed in respect of the 'Nohra' by the defendant No. 2 in favour of the defendants Nos. 3 to 8 for consideration of Rs. 5,000/-. All the defendants have averred that these sale-deeds have lawfully been executed for consideration and they represent valid transaction. The remaining part of the plaint allegations have been denied by them in their written statements. 4. On May 16, 1963, the following issues were framed by the learned trial Court : "1. Whether the plaintiff is a creditor within the meaning of Section 53 of T. P. Act and Section 23 of Indian Contract Act and is entitled to bring the suit ? P 2. 4. On May 16, 1963, the following issues were framed by the learned trial Court : "1. Whether the plaintiff is a creditor within the meaning of Section 53 of T. P. Act and Section 23 of Indian Contract Act and is entitled to bring the suit ? P 2. Whether the alleged sale deed is neither properly executed, nor registered in accordance with law and is without consideration ? P 3. Whether the alleged sale deeds are Benami, void or voidable for reasons mentioned in Para No. 7 of the plaint ? P 4. Whether the Court fee was paid on 18-4-1962, so the suit is out of limitation ? D 5. Whether the plaintiff is estopped from bringing the suit and, questioning the validity of the sale deed ? D 6. Whether Premraj, Gangadhar, Jodhraj, Nandlal, Sohanlal, Hari Prasad are necessary parties? If so, to what effect ? D No. 2. 7. Whether the suit is bad for mis-joinder of causes of action? D No. 1. 8. Have defendant Nos. 3 to 8 invested Rs. 42,000/- in costructing the building in the suit Nohra after purchasing it for Rs. 5,000/- from defendant No. 2 and before the institution of the suit? If so, what is its effect on the present suit ? 5. By order dated July 1, 1963, the issue Nos. 4 and 7 were decided in favour of the plaintiff. The issue No. 6 was decided in favour of the defendants and accordingly Premraj, Jodhraj, Gangadhar, Nandlal, Sohanlal and Hari Prakash were impleaded as defendant Nos. 3 to 8. Issue No. 1 was also decided in favour of the plaintiff vide order dated April 3, 1964. On December 11, 1964, the defendant No. 1 moved an application that the assessment order relating to the assessment year 1952-53 raising demand of over Rs. 6 lacs against him as income-tax has been set aside in appeal and as such the suit has become infructuous. By order dated April 29, 1964, this application was allowed and the suit was dismissed. First appeal No. 63 of 1965 was filed by the plaintiff appellant in this Court. This Court allowed the appeal by its judgment dated August 29, 1971. The operative part of the judgment runs as under: "In the result, the appeal is allowed, the decree dated 29th April, 1965 dismissing the suit is set aside. First appeal No. 63 of 1965 was filed by the plaintiff appellant in this Court. This Court allowed the appeal by its judgment dated August 29, 1971. The operative part of the judgment runs as under: "In the result, the appeal is allowed, the decree dated 29th April, 1965 dismissing the suit is set aside. The case will go back to the Court of Additional District Judge, Churu who will proceed to try the suit on the remaining issues from the stage it was left while dismissing the suit. Having regard to the circumstances of the case, there will be no order as to costs of this appeal." On January 24, 1975, March 20, 1975 was fixed for the plaintiff's evidence in the suit by the trial Court. On this date, the plaintiff sought adjournment, it was granted and May 15, 1975 was fixed for its evidence. Again, adjournment was sought by the plaintiff and July 10, 1975 was fixed for its evidence. Similarly, the case was adjourned to September 11, 1975, November 13, 1975, December 18, 1975 and March 11, 1976 on the plaintiff's request for adjournment to produce its evidence on the adjourned dates. On March 11, 1976, no witness was present. Accordingly, plaintiff's evidence was closed. After hearing the learned counsel for the parties, the suit was dismissed as said above by judgment dated April 21, 1976. 6. It has been contended by the learned counsel for the plaintift- appellant that the learned trial court has seriously erred in closing the plaintiff's evidence on March 11, 1976, on this date the learned counsel for the plaintiff-appellant was ill and as such the witnesses were not called. He further contended that on earlier dates, adjournments were granted on valid grounds and they should not have been taken into consideration while closing the plaintiff's evidence. He lastly contended that the trial Court should not have awarded costs of the defendants. 7. In reply, it has been contended by the learned counsel for the defendant respondents that the plaintiff was given several adjournments to produce its evidence but it was not produced and as such the trial Court was perfectly justified to close its evidence. He further contended that the trial Court did not decide issue No. 5 despite the fact that there was sufficient material on record. He further contended that the trial Court did not decide issue No. 5 despite the fact that there was sufficient material on record. If the issue would have been decided the suit would have also been dismissed on its basis. He lastly contended that the trial court has rightly awarded costs to the defendants. 8. In reply, the learned Counsel for the plaintiff-appellant contended that the finding of the income-tax Appellate Tribunal to the effect that the said sale-deed dated March 5, 1956 was valid, did not non-suit the plaintiff. 9. The first question for consideration in this appeal is whether the trial Court was not justified to close the plaintiff's evidence on March 11, 1976. Admittedly, after the remand of the suit by this court in previous first appeal No. 63 of 1965 following dates were fixed for the plaintiff's evidence: 1. March 20, 1975 2. May 15, 1975 2. July 10, 1975 4. September 11, 1975 5. November 13, 1975 6. December 18, 1975 and 7. March, 11, 1975 It is not in dispute that on all these dates no witness of the plaintiff was present and requests were made by the plaintiff for adjournment to produce witnesses and on all these dates except March 11, 1976 adjournments were granted to the plaintiff for producing its evidence. The last date fixed for plaintiff's evidence was March 11, 1976. Admittedly, no step was taken for summoning any witness by the plaintiff for this date. It is the case of the plaintiff that steps were not taken for summoning the witnesses and they were not produced as its counsel was ill. It is stated in Para 5 of the memo of appeal- "on that day, counsel for the plaintiff-appellant moved an application for adjournment on the ground of his illness." Thus the counsel came to the court on March 11, 1976 and again moved an application for adjournment for producing witnesses. It is not clear as to why steps were not taken for summoning the witnesses. Be that as it may, the witnesses could have been produced and examined on March 11, 1976 when the counsel could come to the court and move an application for adjournment. Order 17 Rule 3, Civil Procedure Code as then existed, ran as under : "3. Court may proceed notwithstanding either party fails to produce evidence, etc. Be that as it may, the witnesses could have been produced and examined on March 11, 1976 when the counsel could come to the court and move an application for adjournment. Order 17 Rule 3, Civil Procedure Code as then existed, ran as under : "3. Court may proceed notwithstanding either party fails to produce evidence, etc. When any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendence of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." Sub-rule (2) of Rule 70 of the General Rules (Civil), 1952 ran as under : "(2) The fact that a party is, through carelessness or negligence not ready to go on with a suit, is not in itself good cause for adjournment." In view of these facts, circumstances and law, the trial Court was perfectly justified to close the evidence of the plaintiff on March 11, 1976 and to proceed to decide the suit. 10. There is also great force in the contention of the learned counsel for the defendant-respondents that the issue No. 5 has not been decided by the learned trial Court and if the issue No. 5 would have been decided it would have gone in favour of the defendants and the suit would have been dismissed on this count also. The learned trial Court has quoted in its judgment under challenge the following portions of the order of the Income-tax Appellate Tribunal dated September 25,1974 passed in the appeals preferred by the Revenue (plaintiff-appellant here) against the defendant-appellant Prithviraj (assessee) relating to the assessment years 1957-58 and 1959-60: "It is further pointed out that this controversy has come up for decision before the Tribunal in the case of the assessee in respect of asstt. Yr. 1960-61, and in the case of Hans Raj Dag in the assessment of 1960-61 and 1961-62 and that the Tribunal had held in those appeals that the sale in question was genuine and that the properties no more belonged to the assessee, but that they belonged to the company. Yr. 1960-61, and in the case of Hans Raj Dag in the assessment of 1960-61 and 1961-62 and that the Tribunal had held in those appeals that the sale in question was genuine and that the properties no more belonged to the assessee, but that they belonged to the company. Even otherwise the Department was assessing the company on the income derived from the said income and that the Department could not be allowed to take contradictory stands with regard to the same. Properties in two different cases." We have carefully examined the rival contentions. In our opinion, nothing has been placed on record by way of additional evidence by the Department to persuade us to take different view in these appeals from the one taken by our learned brother's in the assessee's own case in respect of Asstt. Yr. 1960-61 in which case, also the facts were identical. Our learned brothers have clearly held in those appeals that the properties did not belong to the assessee after the date of the sale and that, therefore, there was no question of either the wealth represented by the said properties being treated as the wealth of the assessee or the income thereof being assessed in the hands of the assessee. We would, therefore, reject the Departmental appeals and allow the cross objections, which merely declare that the order of the Appellate Asstt. Commissioner was correct and that the same should be upheld." These extracts clearly go to show that the sale deed dated March 5, 1956 was treated as a valid document by the plaintiff itself and the properties transferred through it were assessed in the hands of the defendant No. 2 Sujangarh Investment and Trading Company Ltd, under the Income Tax Act and Wealth Tax Act. It has been observed in Ambu Nair v. Kelu Nair, AIR 1933 Privy Council 167 at p. 169, at page 169 , as follows : "It is a well accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honeyman, J. in Smith v. Baker, 8 C.P. 350: "at the same time blow hot and cold. He cannot, to use the words of Honeyman, J. in Smith v. Baker, 8 C.P. 350: "at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage." See also per Lord Kenyon, C.J., in Smith v. Hodson, 2 S, M.L.C. 140 where the same expression is used." Thus the plaintiff-appellant was estopped from questioning the validity of the said sale-deed dated March 5, 1956. The trial Court would have also dismissed the suit if this issue would have been decided by it. 11. Under the facts and circumstances of the case, the trial was perfectly justified to award costs of the suit to the defendants. Thus there is no force in the appeal. It deserves to be dismissed with costs. 12. In the result, the appeal is dismissed with costs.Appeal dismissed. *******