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Madhya Pradesh High Court · body

2005 DIGILAW 61 (MP)

Gordhan Singh v. Abdulji Alamji

2005-01-11

S.K.GANGELE

body2005
JUDGMENT 1. This is the plaintiff's second appeal against the judgment and decree passed in Civil Appeal No. 10-A/1988 dated 22.4.1989 reversing the judgment and decree passed by the trial Court in Civil Suit No. 38-A/1987 dated on 26.8.1988. The appeal was admitted for hearing vide order dated .7.8.1989 on the following substantial questions of law: 1.Whether the suit filed by the appellants is barred by the provisions of section 47 of the C.P.C. 2.Whether in the facts and circumstances of the case the respondent is estopped from raising or agitating the objection? 2. The plaintiff filed a suit for eviction against the defendant respondent for delivery of possession of the land bearing S.No. 418/2 total area 0.218 acre situated at village Bandhikedi, Tahsil Mandsaur. It was pleaded by the plaintiff that one• Khumansingh S/o Himmatsingh executed an agreement dated 22.7.1964 for sale of the land 0.218 acre situated at S.No. 418/2. When he did not perform his part of the agreement, the plaintiff filed the suit against Khumansingh, which was registered as Civil Suit No. 37-A/66 and decreed in favour of the plaintiff by judgment and decree dated 17.7.1970. On 24.11.1977, Himmatsingh, heir of Khumansingh, executed a sale deed in favour of plaintiff because Khumansingh had died. It is further pleaded that on 7.1.1978, the defendant illegally took possession of a plot of the aforesaid land measuring 84 ft. x 39 ft. and constructed a shop. 3. The defendant denied the claim of the plaintiff. It was pleaded by the defendant that the land measuring 84 ft. x 39 ft. was sold by earlier land owner Khumansingh on 23.5.1966 to Abhay Kumar S/o Narendra Kumar by a registered sale deed in a consideration of Rs. 500/and said Abhay Kumar further sold the aforesaid plot to the defendant on 3.10.1975 by a registered sale deed in a consideration of Rs. 3000/- and he was also put in possession. Thereafter, he received sanction for construction of a shop and constructed the shop by investing Rs. 50,000/- in the year 1976. It has further been pleaded by the defendant that the plaintiff in Suit No. 37-A of 1966 tried to implead Abhay Kumar as a party, which was rejected by the trial Court. Thereafter, he received sanction for construction of a shop and constructed the shop by investing Rs. 50,000/- in the year 1976. It has further been pleaded by the defendant that the plaintiff in Suit No. 37-A of 1966 tried to implead Abhay Kumar as a party, which was rejected by the trial Court. The suit is not maintainable because earlier the plaintiff filed an execution proceeding of the decree obtained in Civil Suit No. 37-A/1966 and he had withdrawn the said execution proceedings, hence as per provisions of section 47 of the Code of Civil Procedure, the suit is not maintainable. 4. The trial Court held that there was an agreement by Khumansingh to sell a land on 22.7.1964 in favour of the plaintiff and when he did not perform his part of the agreement, plaintiff filed a suit which was registered as Civil Suit No. 37-A/1966 and the suit was decreed and in pursuance of the decree of the suit a sale deed was executed by the Court of the land in favour of the plaintiff. It has further been held by the Court, amongst the aforesaid land, Khumansingh sold a plot measuring 84 ft. x 39 ft. to one Abhay Kumar on 23.5.1966 by a registered sale deed for a consideration of Rs. 500/- and also delivered possession to him. Thereafter the said Abhay Kumar again sold the land to the defendant on 3.10.1975 in a consideration of Rs. 3000/-. The trial Court further held that the plaintiff is not barred by filing this suit on the basis of estoppel and also on the basis of the provisions of section 47 of the Civil Procedure Code because the plaintiff filed execution proceedings of a decree passed in earlier Civil Suit No. 37-A/1966, which was withdrawn subsequently, and decreed the suit with regard to delivery of possession of the suit property, it has also been ordered that the defendant may remove the construction and give vacant possession to the plaintiff. 5. Against the aforesaid judgment and decree, the defendant filed an appea1. The learned appeal Judge has held that the plaintiff got the suit property in pursuance to a decree passed in Civil Suit No. 37-A/66. 5. Against the aforesaid judgment and decree, the defendant filed an appea1. The learned appeal Judge has held that the plaintiff got the suit property in pursuance to a decree passed in Civil Suit No. 37-A/66. In that appeal, it was argued by the appellant that in execution proceedings of the judgment and decree of Case No. 37-A/1966 the present respondent moved an application restraining the execution and submitted that the plaintiff could file a separate suit, hence the defendant is barred on the principle of estoppel challenging the maintainability of the suit. It has further been stated that withdrawal of proceedings under section 47, CPC by the plaintiff did not bar him to file a subsequent suit for possession. The learned appellate Court negativated the contention of the appellant that the defendant-respondent is barred by raising the objection on the basis of estoppel about maintainability of the present suit and further held that because the plaintiff had withdrawn the execution proceedings filed by him under section 47 of the CPC with regard to execution of the decree of the subsequent suit for possession, present suit is not maintainable because the relief of possession was available to the plaintiff in the execution proceedings, and allowed the appeal, set aside the judgment and decree passed by the trial Court and dismissed the suit filed by the plaintiff. 6. Learned senior counsel appearing for the appellant has vehemently argued that the appellate Court has committed an error of law by holding that the suit of the plaintiff is not maintainable in view of section 47 of the Civil Procedure Code because of withdrawal of execution of the decree passed in Civil Suit No. 37-A of 1966. He relied on in support of his aforesaid contention on the judgment reported in AIR 1928 Bombay 65 [Basappa Budappa Halavalad v. Bhimangowda 'Slhiddangowda Patil). The learned counsel further argued that the respondent-defendant is estopped from challenging the question of maintainability of the present suit on the principle of estoppel because the defendant filed an application in execution proceedings that the plaintiff can file a separate suit for this purpose. In support of this contention the learned counsel relied on two decisions of this Court reported in 1963 JLJ 181 = AIR 1964 MP Page 124 [B.S. Lali v. Sardarmal Lalwani) and 1960 JLJ 90 = AIR 1960 MP 138 [Phuluwa and others v. Laxmichand Sitabai). In support of this contention the learned counsel relied on two decisions of this Court reported in 1963 JLJ 181 = AIR 1964 MP Page 124 [B.S. Lali v. Sardarmal Lalwani) and 1960 JLJ 90 = AIR 1960 MP 138 [Phuluwa and others v. Laxmichand Sitabai). 7. The learned counsel for the respondent submitted that the facts of the case cited by the learned senior counsel for the appellant are different. It has specifically been submitted by him that as per section 52 of the Transfer of Property Act if a transferor pendente lite, the defendant had limited interest and he filed objection before the executing Court and the plaintiff on his own withdrawn the execution proceedings on the basis of the objection filed by the defendant. The present suit is not maintainable in view of provisions of section 47 of CPC. The learned counsel relied on a judgment of the apex Court reported in 1998(1) JLJ 403 = AIR 1998 SC 743 . 8. Before answering the rival question of the parties and the proposition of law it is necessary to mention brief facts of the case. 9. It is an admitted position that Khumansingh executed an agreement on 22.7.1964 with regard to sale of two bighas of land situated at Mhow-Neemuch Road in a consideration of Rs. 1500/- said agreement has been filed as Ex. P-6 in the suit. Thereafter he did not execute the sale deed so the plaintiff-appellant filed a suit for specific performance of contract on the basis of above agreement on 12.4.1966 with regard to execution of the sale deed in favour of the plaintiff which was registered as Civil Suit No, 37-A/1966, the suit was decreed on 17.8.1970. 10. On 23rd May, 1966 after filing the said suit Khumansingh sold portion of the aforesaid land measuring 84 ft. x 39 ft. to one Abhay Kumar Slo Narendra Kumar in a consideration of Rs. 5001-, the sale deed has been filed as Ex. D-2. Said Abhay Kumar sold the aforesaid plot to the defendant firm Mulla Adamji & Co. in a consideration of Rs. 30001- by a registered sale deed dated 3.10.1976, which has been filed as Ex. D-l, MIs. Mulla Adamji & Co. constructed a shop over the aforesaid land after getting permission from the Municipal Council in the year 1976. 11. D-2. Said Abhay Kumar sold the aforesaid plot to the defendant firm Mulla Adamji & Co. in a consideration of Rs. 30001- by a registered sale deed dated 3.10.1976, which has been filed as Ex. D-l, MIs. Mulla Adamji & Co. constructed a shop over the aforesaid land after getting permission from the Municipal Council in the year 1976. 11. The plaintiff-appellant filed an execution proceeding of the decree on 1.11.1976 before the Civil Judge Clause II Mandsaur obtained in Civil Suit No. 37-A/66. In that execution proceedings the defendant filed an objection mentioning that he became the owner of the portion of the property on the basis of a sale deed dated 3.10.1975 and he is not bound by the judgment and decree passed in the present suit because he was not a party to the suit. He further submitted that after getting possession of the said land he obtained permission for construction from the Panchayat on 20.2.1976 and thereafter made a construction over the land in the year 1976. It has further been submitted that the plaintiff had a right after pleading their title to file a separate suit on the basis of title. 12. The objection has been filed as Ex. P-9 in the present suit. Vide order dated 12.9.1979 the execution proceedings has been disposed of in terms of the prayer made by the plaintiff. Vide order dated 12.9.1979. The order is important for decision of the present case : "The learned Civil Judge ordered that the plaintiff-decree-holder filed two applications on 1.4.1976 and on 1.11.1976 mentioning that he does not want to press the application dated 1.1.1976 and they' wanted the execution of the decree upto the extent that as per the decree a sale deed be executed against the judgment debtor of the suit land and has been submitted that because there is no relief with regard to possession in favour of the decree holder in the decree hence he had not pressed relief for possession with regard to specific performance of the contract and execution of the sale-deed, there was no objection by the judgment debtor. The executing Court observed that on 1.1.1976 the plaintiff made an amendment in the execution proceeding and also sought the relief of possession but that application was not pressed by the plaintiff, hence at this stage it has not been decided that whether the plaintiff is entitled for possession or the decree is binding on the defendant and the executing Court directed to execute a sale deed as per the decree and the execution proceedings were disposed of accordingly, vide order dated 18.8.1977. " 13. Thereafter the plaintiff filed the present suit for possession, on the basis of the above facts and circumstances of the case evidence on record. The main point for determination for this Court is "Whether the defendant is estopped from challenging the maintainability of the present suit, and the suit is not maintainable on the basis of provisions of section 47 of the Civil Procedure Code ?" 14. It is an admitted position that the plaintiff himself did not press the application with regard to grant of relief of possession in the execution proceedings of the decree passed in C.S. No. 37-N1966 and limited the relief upto the execution of the sale deed, although in the objection the defendant mentioned that after pleading the title the plaintiff may file a civil suit but in the present case the plaintiff himself withdrawn the relief with regard to possession in the execution proceedings. It is an admitted position that a decree for specific performance of the contract was granted by the Court in favour of the plaintiff. 15. In AIR 1963 MP 186 [Dadulal Hanumanlal v. Smt. Deo Kunwarbai] it has been held by this Court with regard to grant of relief of possession of suit property in pursuance to a decree for specific performance of contract when the decree is silent about the possession as under: "Where a suit for specific performance of a contract of sale with a prayer for possession, the plaintiff is held entitled to the reliefs claimed in the plaint and a decree for specific performance is passed and the same is confirmed in appeal, the executing Court is entitled to order delivery of possession to the decree-holder, while executing the decree under the provisions of 0.21 Rr. 32 and 34. 32 and 34. This right of the executing Court in fact is well recognises as its inherent right if either the contract or the decree is silent about delivery of possession. Since under S. 55 of the Transfer of Property Act the right to ask for possession and right to obtain the same in the absence of a contract to the contrary, implicit in the contract to transfer the property, the decree-holder automatically gets that right to demand possession from the party conveying the property and that party in such a situation being only the Court, which has replaced the judgment debtor and which has to act, therefore, on his behalf as his statutory agent, if necessarily becomes liable to perform that part of the contract relating to delivery of possession also. What the Court does is nothing but obeying the decree". 16. This principle has further been reiterated by the Single Bench of this Court in a judgment reported in 1983 .TLJ 422 [Bata Shoe Co. v. Preetamdas and others]. The Hon'ble Court has held as under: "While executing the decree for specific performance, the Court is not only concerned with the execution of the deed but a further step in the light of section 55 of the Transfer of Property Act also to be directed. AIR 1972 SC 1371 , AIR 1972 SC 1826 and AIR 1955 Cal. 2267 relied on. 17. It is clear from the aforesaid provisions of law that the relief of possession was available to the plaintiff at the time of execution of the decree and that relief can also be obtained against the defendant who purchased the suit property during the pendency of the suit proceedings and he became the predecessor pendente lite, as held by a Division Bench of this Court in AIR 1971 MP 109 [Smt. Vraj Kunwarbai and others v. Kunjbiharilal Krishnachandra and others]. 18. The Hon'ble Supreme Court in (2001) 10 SCC 715 [Hukamchand v. Omchand and others] has held that the transfer of interest of a person in pendente lite progress of litigation remain unaffected. 18. The Hon'ble Supreme Court in (2001) 10 SCC 715 [Hukamchand v. Omchand and others] has held that the transfer of interest of a person in pendente lite progress of litigation remain unaffected. The Hon'ble Lordships of the Supreme Court held as under: "The only exception is when the transfer of property forming the subject matter of the suit, pendente lite, results in wiping out the cause of action itself or deprives the transferee of the right to decree, such as where the cause of action was personal to the original plaintiff. Otherwise the only result is that such transferee steps into the shoes of his predecessor-in-interest and remains bound by the result of the suit and would not, at a later stage, be permitted to raise the plea that he was not bound by the result of litigation because he was not brought on record of the suit and impleaded as a party". 19. From the above principle of law it is clear that the transferee steps into the shoes of his predecessor and he is bound by the result of the suit and would not be permitted to raise the objection and plead that he was not bound by the result of the litigation because he was not a party on record of the suit and impleaded as a party, hence the plaintiff had a right to get possession in the execution proceeding which' he had initiated in pursuance of the decree granted to him in Civil Suit No. 37-A/66 but he himself did not press that relief. In the aforesaid circumstances it cannot be said that the respondent-defendant was estopped raising the objections with regard to maintainability of the suit, on the basis of the principle of estoppel. 20. The Hon'ble Supreme Court in [ (2003) 2 SCC 355 ] B.L. Shreedhar v. K.M. Munireddy (Dead) and others has held as under with regard to estoppel after analysing various judgments of the Courts and Hon'ble the Supreme Court: "An estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case, a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it. But where such is not the case, a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it. If a man either by words or by conduct has intimated that he consents to an act which has been done and that he will not offer any opposition to it, although it could not have been lawfully done without his consent, and he thereby induces other to do that which they otherwise might have abstained from, he cannot question the legality of the act he had sanctioned to the prejudice of those who to give faith to his words or to the fair inference to be drawn from his conduct." Cases relied on : Ashpitel v. Bryan [(1863) 3 B & S 474 = 122 ER 179 = 32 LJQB 91]; Simm v. Anglo American Telegraph Co. [(1879) 5 QBD 188 = 49 LJQB 392 = 42 LT 37 (CA)]; Pickard v. Sears [(1837) 6 Ad & El 469 = 112 ER 179]; Duchess of Kingston case [(1776) 1 East PC 468 = 1 Leach 146 = 168 ER 175); Thompson v. Palmer [(1933) 49 CLR 547]; Grundt v. Great Boulder [(1937) 59 CLR 675]; Central Newbury Car Auctions v. Unity Finance [(1957) 1 QB 371 = (1956) 3 All ER 905 = (1956) 3 WLR 1068 (CA)]; Canada & Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd. [(1946) 3 WWR 759 = 1947 AC 46]; Greenwood v. Martins Bank [1933 AC 51 = 1932 All ER 318 = 101 LJKB 623 = 147 LT 441 (HL)], relied upon. Depuru Veeraraghava Reddi v. Depuru Kamalamma [ AIR 1951 Mad. 403 = (1950) 2 MLJ 575 ]; S. Shanmugam Pillai v. K. Shanmugam Pillai [ (1973) 2 SCC 312 = AIR 1972 SC 2069 ]; Provash Chandra Dalui v. Biswanath Banerjee [1989 Supp. (1) SCC 487 = AIR 1989 SC 1834 ]; Indira Bai v. Nand Kishore [ (1990) 4 SCC 668 ] relied upon. General Finance & Co. v. Liberator [(1878) 10 Ch D 15 = (1874-80) All ER Ext. 1597 = 39 LT 600]; Duke of Leeds v. Earl of Amherst [(1846) 2 Ph 117 = 41 ER 886 = 16 LJ Ch 5]; De Bussche v. Alt. General Finance & Co. v. Liberator [(1878) 10 Ch D 15 = (1874-80) All ER Ext. 1597 = 39 LT 600]; Duke of Leeds v. Earl of Amherst [(1846) 2 Ph 117 = 41 ER 886 = 16 LJ Ch 5]; De Bussche v. Alt. [(1878) 8 Ch D 286 = (1874-80) All ER 1247 = 38 LT 370]; Lala Beni Ram v. Kundan Lall [(1899) 26 IA 58]; Ramsden v. Dyson [(1866) 1 HL 129 = (1865) LR 1 E & I Ap. 129 = 14 WR 926 (HL)]; Sarat Chunder Dey v. Gopal Chunder Laha [(1892) 19 IA 203] cited. 21. It is clear from the above judgment of the apex Court that there would not be any estoppel against the defendant with regard to questioning the jurisdiction of the plaintiff by filing the maintainability of the present suit. 22. The next question is with regard to maintainability of the suit in view of the withdrawal of execution proceeding by the plaintiff of a decree with regard to possession of suit land, filed in pursuance to a decree passed in Civil Suit No. 37-N67. The plaintiff himself did not press the relief available to him, in such circumstances, in the opinion of this Court, the second suit filed by the plaintiff for possession is not maintainable on the basis of following principle of law. 23. In AIR 1973 SC 2423 (Harnandrai v. Debidutt Bhagwatl Prasad and others) has held as under: "It is important to remember that after the decision of the Privy Council in Ganapathy's case 45 Ind App. 54 = (AIR 1917 PC 121) there has been an amendment of section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment debtor must in our view be determined by the executing Court and not by a separate suit". 24. Having regard to this, all questions arising between the auction-purchaser and the judgment debtor must in our view be determined by the executing Court and not by a separate suit". 24. The Hon 'ble Supreme Court in AIR 2001 SC 2552 (Dhurandhar Prasad Singh v. Jai Prakash University and others) has held as under: "Under section 47 all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the Court executing the decree and not by a separate suit". 25. On the basis of the above principle of law it is clear that the second suit filed by the plaintiff is not maintainable. However, it is necessary to discuss the judgment relied on by the learned senior counsel for the appellant. Learned senior counsel relied on the judgment reported in AIR 1964 MP 124 (Chunnilal Onkarmal Ltd. and another v. Mohanlal Balkrishna Agrawal and another) with regard to estoppel but in that case the defendant appeared in the execution proceedings and objected to the maintainability of the execution of the application which was rejected by the executing Court and upheld by the Judicial Commissioner, Bhopal, and the objection was that the plaintiff ought to have filed a suit to enforce of the aforesaid proceedings in the context of the above fact the learned Division Bench held that there could not be a question of bar with regard to the second suit filed by the plaintiff on the basis of estoppel. But these are not the fact in the present case. In the present case the plaintiff himself did not press the relief with regard to grant of possession in the execution proceedings. The second case which is relied by the learned counsel for the appellant is reported in 1928 Bombay page 65 (Basappa Bludappa Halavalad v. Bhimangowda Shiddagowda). In the aforesaid case it has been held that the transferee during the pendency of the suit of the property in suit is bound by the decree in the suit. The second case which is relied by the learned counsel for the appellant is reported in 1928 Bombay page 65 (Basappa Bludappa Halavalad v. Bhimangowda Shiddagowda). In the aforesaid case it has been held that the transferee during the pendency of the suit of the property in suit is bound by the decree in the suit. It is immaterial whether he had or had not notice of the pending proceedings and it has further been held that the transferee pendente lite is not representative of the transferor within the meaning of section 47 of the CPC and the same suit is maintainable on the basis of judgment of the Hon'ble apex Court B.L. Shreedhar (supra) and AIR 2001 SC 2552 . In the light of the two judgments quoted above of the apex Court the judgment of Bombay High Court cannot be relied upon. 26. The question has to be seen as per the provisions of the order 21 rule 97, CPC which is as under: "Resistance or obstruction to possession of immovable property: (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Rule 97 of order 21 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by "any person" is obtaining possession of the property, such decree holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the Court to proceed to adjudicate upon such complaint in evidenced with the procedure laid down Silver line Forum Pvt. Ltd. v. Rajiv Trust, AIR 1998 SC 1754 . Hence the judgment quoted by the learned senior counsel for the appellants cannot be relied on the principle of precedence. 27. The Hon'ble apex Court in (2003) 2 SCC 111 (Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others) held as under: "A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. 27. The Hon'ble apex Court in (2003) 2 SCC 111 (Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others) held as under: "A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision [See Ram Rakhi v. Union of India, AIR 2002 Del. 458 (FB)]., Delhi Admn. (NTC) of Delhi v. Manoharlal, [ (2002) 7 SCC 222 ], Haryana Financial Corpn. v. Jagdamba Oil Mills (2002) 3 SCC 496 and Nalini Mahajan (Dr.) v. Director of Income Tax (Investigation) (2002) 257 ITR 123 (Del.)." 28. A constitution Bench of the Hon'ble Supreme Court in (2003) 3 SCC 553 (Padma Sunara Rao (Dead) and others v. State of T.N. and others) has further held as under: "Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a word of difference between conclusions in two cases". 29. The Hon'ble Supreme Court further in (2002) 3 SCC Page 496 (Haryana Financial Corporation and another v. Jagdamba Oil Mills and another) quoted Lord Denning with regard to precedents in para 22 of the judgment as under : "The following words of Lord Denning in the matter of applying precedents have become locus classicus: "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide case (as said by Cardozo) by matching the colour of one case against the colour of another. In deciding such cases, one should avoid the temptation to decide case (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." * * * * * "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear or obstructions which could impede it". 30. Hence, I am unable to agree with the contentions advanced by the learned senior counsel for the appellant. 31. On the basis of above principle of law, facts and circumstances of the case, I held that the suit filed by the appellant-plaintiff was barred as per the provisions of section 47 of the Civil Procedure Code and the defendant were not estopped from raising or agitating the objection with regard to maintainability of the present suit filed by the plaintiff I answer the substantial question of law accordingly. On the basis of above analysis of facts of the case and evidence on and the position of law, I do not find any substance in the appeal filed by the plaintiff, it is dismissed without any costs and the judgment and decree passed by the Appellate Court is upheld. ....................