Judgment :- (RSA filed U/S. 100 of CPC against the judgment & decree DT.38.2006 passed in R.A.No.20/2005 on the filed of the civil judge (SR.DN), Kunigal, dismissing the appeal and confirming the judgment and decree DT.28.2005 passed in O.S.No72/1988 on the file of the Addl. Civil judge (Jr.Dn), Kunigal.) This second appeal is by the defendant before the trial court and he is aggrieved by the suit of the respondent/plaintiff for cancellation of the adoption deed dated 28.48 and for declaration of plaintiff’s title to the suit properties, being decreed and the lower appellate court confirming the same by dismissing the appeal preferred by the defendant. Thus, concurrent findings of the courts below are called in question. .2. Theplaintiffs case was that her husband Boregowda and Ningaiah @ Vadakantaiah were the sons of one Boregowda and both the sons mentioned above died long back and the plaintiff being the wife of 1st son Boregowda also lost her children and thereafter the plaintiff began to reside with her younger brother karigowda and it is the case of the plaintiff Chikkamma, that she has been in possession of the suit schedule properties following an order passed by the Deputy Commissioner for Inam Abolition and later the plaintiff gave half share in all the properties held by her in favour of defendant’s father and thereafter both the plaintiff and the defendant’s father enjoyed the respective properties and following the death of the defendant’s father, the defendant continued to enjoy his father’s share and as the plaintiff had become issueless after having lost her two children, she joined her younger brother Karigowda and lived with him. It is her case that the defendant i.e. the appellant .herein filed a suit in O.S.No.63/88 seeking permanent injunction against the plaintiff’s younger brother Karigowda and his son Kariyappa in respect of the suit schedule properly and it was in the said suit, that the defendant came up with the claim of he being the adopted son of the plaintiff Chikkamma, and after coming to know of this fact, the plaintiff filed the present suit for the aforesaid relief and it is her case that no adoption had taken place as contended by the defendant in the earlier suit and the defendant and his parents played fraud on the plaintiff and appeared to have got a document registered as adoption deed. The plaintiff had no qualification to take the defendant in adoption and likewise the defendant also had no qualification for being adopted. 3. On the basis of the aforesaid averments in the plaint, it is contended that the cause of action for the suit arose in the 1st week of July 1988 when the plaintiff came to know about the defendant having pleaded adoption in O.S.No.63/88 and therefore the suit be decreed as prayed for. 4. The appellant’s case before the trial court was that while the relationship between the parties as stated by the plaintiff being not disputed, yet it is specific case of the defendant that following the death of Chikkamma’s husband, the defendant was adopted by the said Chikkamma in the year 1948 and the adoption deed dated 28.1948 which is a registered document stands as testimony to this fact. It is his further case that the mother-in-law of the plaintiff had gifted items 5 and 7 of the suit property in favour of the defendant under the gift deed dated 16.4.1948 prior to the adoption of the defendant by the plaintiff and following the defendant becoming the adoptive child of the plaintiff, the defendant succeeded to the rest of the properties of the plaintiff and therefore the suit filed by the plaintiff is only at the instance of the sons of Kariyappa and as such, the suit of the plaintiff be dismissed. Another contention taken in the written statement was as per paragraph 17 which read as “The suit is hopelessly barred by law of dis-intertion”. 5. In the additional written statement filed by the defendant, it was contended that the defendant along. With Chikkamma continued to be the joint owner of other suit items. Following the death of Chikkamma, the defendant became the sole owner having inherited the undivided share of Chikkamma and as far as the alleged Will is concerned, the contention taken is that the said Will is not a genuine Will but it is the outcome of frand, forgery, coercion and undue influence and the said Will has been set up to defeat the claim of the defendant and the plaintiff Kariyappa has no locus stand to continue the suit which was originally filed by Chikkamma. .6. The trial court framed as many as eleven issues and two additional issues. .6. The trial court framed as many as eleven issues and two additional issues. As could be seen from the paper book pages 20 and 21 and both parties led evidence Learned trial judge after appreciating the evidence let in by the parties, accepted the case of the plaintiff that the adoption deed was not proved by the defendant as a valid one and secondly the Will was proved by the plaintiff and based on the said findings and also after opining that the suit properties came to the share of Chikkamma under a partition, the trial court decreed the suit of the plaintiff and the adoption deed was cancelled .and the plaintiff was declared as the owner of the suit properties and the defendant was also restrained from interfering with the plaintiff’s peaceful possession and enjoyment of the suit properties. The lower appellate court dismissed the appeal filed by the appellant by confirming the judgment of the trial court. 7. I have heard Shri Shankar S.Bhat, learned counsel for the appellants, and Smt. B.V.Vidyulatha, learned counsel for the respondent, and perused the entire material on record. 8. Thelearned counsel for the appellants at the outset submitted that the courts below ought to have dismissed the suit of the plaintiff as having been barred by limitation inasmuch as though the adoption deed dated 28.1948 is a registered document which has been produced as per Exs.D-4 and P-89, the plaintiff i.e., Chikkama, challenged the said adoption deed only in the year 1988 when the present suit was filed on 27.1988 and, therefore, after a lapse of nearly 40 years, the adoption deed is being called in question and, as such, the declaration sought for by the plaintiff to cancel the adoption deed is hopelessly barred by limitation. It is submitted that the appellant has taken the stand of the suit being barred by limitation in his written statement but, inadvertently, in place of the word “limitation”, the expression “disintention” has been mentioned. But, nevertheless, on going through the preceding words of the sentence which is at paragraph-17 of the written statement, one can easily discern that the plea of the suit being barred by limitation has been taken by the defendant. But, nevertheless, on going through the preceding words of the sentence which is at paragraph-17 of the written statement, one can easily discern that the plea of the suit being barred by limitation has been taken by the defendant. Therefore, the submission made is that the courts below ought to have dismissed the suit on the ground of is being barred by limitation and moreover, even before this court in the second appeal, such a plea can be raised as there is no bar for raising the plea of the suit being barred by limitation. 9. Nextly, it is argued that the courts below failed to accept the evidence placed by the defendant, both oral and documentary, as regards the adoption deed having been executed by Chikkamma and the said deed, which is produced at Ex.D-4, being a registered document, the courts below could not have called upon the defendant to prove the adoption deed. In this connection, by referring to the reasons assigned by the trial court, it is submitted that the trial court did not accept the adoption deed only on the ground of Chikkamma being the widow having not obtained the consent of the sapindas and also on the ground that a Hindu window cannot adopt a child and these reasons of the trial court, which are affirmed by the lower appellate court, cannot be sustained in law in the face of the decision of the Apex Court reported in A.I.R.1963 S.C. 185 and also another decision of the Apex Court reported in A.I.R. 1978 S.C. 1051. Therefore, the entire reasoning of the trial court for not accepting the adoption deed is contrary to the aforesaid decisions of the Apex Court and, as such, the said finding of the trial court is liable to be interfered in this second appeal as it is contrary to law laid down by the Supreme Court. .10. It is further contended by the learned counsel for the appellants that the trial court erred in relying .on the will Ex.P.1 and decreeing the suit of the plaintiff. .10. It is further contended by the learned counsel for the appellants that the trial court erred in relying .on the will Ex.P.1 and decreeing the suit of the plaintiff. The trial court did not properly appreciate the evidence placed before it and the various circumstances which have been brought out in the evidence of the plaintiff’s witnesses and the defendant’s witnesses and it will go to indicate that the will is a document brought up by the plaintiff to deprive the defendant of the benefits derived by him under the adoption deed. In this regard, the learned counsel referred to the evidence of P.Ws.1 and 4 to 7 and that of D.W.1. 11. Another submission made by the learned counsel in this regard is that, nowhere in the plaint is there an averment to the effect that the suit properties came to the hands of the plaintiff i.e., Kariyappa, under the will executed by Chikkamma. Therefore, the evidence without necessary pleadings could not have been accepted by the trial court. On the very same reasoning, the learned counsel also submitted that even with regard to the necessity of the consent of the sapindas for the adoption is concerned, there is no specific pleading in the plaint and, therefore, the trial court could not have put the burden on the defendant insofar as the validity of the adoption deed is concerned. 12. As regards the will is concerned, yet another submission made is that the will is dated 16.1988, long after the adoption deed and long after the gift deed executed in favour of the defendant in the year 1948. Regarding the contents of the will Ex.P-1, it is contended that the very mention in the will that Chikkamma had not taken any person in adoption itself goes to show that the will was set up by the plaintiff to deprive the defendant of getting the suit properties pursuant to the adoption deed. Even as regards the will, the findings of the trial court cannot be sustained as the circumstances pointed out by the learned counsel for the appellants will render the execution of the will suspicious. 10.13. Even as regards the will, the findings of the trial court cannot be sustained as the circumstances pointed out by the learned counsel for the appellants will render the execution of the will suspicious. 10.13. As far as the requirement of proving the will is concerned, the learned counsel referred to the relevant section of the Indian Succession Act to point out that the will has not been proved in accordance with the provision of Section 63 of the Indian Succession Act. In the light of the aforesaid contentions put forward, the learned counsel for the appellants argued that the courts below could not have decreed the suit of the plaintiff and accordingly, the substantial question of law framed by the court require to be answered in favour of the appellants. 114. On the other hand, the learned counsel for the respondent contended that the will has been proved by the plaintiff and, it being a registered document, the plaintiff has led the evidence by examining the scribe a P.W.2 and one of the attesting witnesses P.W.3 and, therefore, merely because of certain discrepancies in the evidence of these witnesses, it cannot be said that the will is not proved. As far as there being no pleadings as regards the will is concerned, the submission made is that the very prayer of the plaintiff for declaration of his title to the suit properties itself implies that the plaintiff is the owner of the suit properties which he got under the will. Once the will is upheld, the question into other aspects of the matter will not arise and so also going into the first two substantial questions of law raised for consideration does not arise. 115. As far as the adoption deed is concerned, the submission made is that the adoption is said to have taken place in the year 1948, prior to coming into force of the Hindu Adoption & Maintenance Act, 1956 and, therefore, the trial court was justified in taking the view that the adoption deed is invalid in the absence of Chikkamma obtaining the consent of sapindas. As prior to the coming into force of the aforesaid Act, the customary law was in force as regards adoption, the trial court is, therefore, justified in not accepting the adoption as valid. As prior to the coming into force of the aforesaid Act, the customary law was in force as regards adoption, the trial court is, therefore, justified in not accepting the adoption as valid. In this regard, the learned counsel also drew my attention to certain passages from the book, Mulla’s Principles of Hindu Law, Volume-I 20th Edition, to submit that the consent of the sapindas was required before the widow took in adoption. Reference was also made to the second volume of the very same book in this regard. 116. Therefore, relying on the observations contained in the aforementioned book and also referring to the decision of the Apex Court reported in A.I.R. 1963 S.C. 884, the learned counsel argued that the judgment of the trial court as affirmed by the lower appellate court calls for no interference and the suit of the plaintiff could not have been dismissed even on the narrow ground of absence of an issue, and, as such, the courts below have rightly accepted the case of the plaintiff. Hence, this appeal lacks merit and be dismissed. 117. Keeping in view the aforesaid contentions put forward by the learned counsel for the parties, it is time to answer the substantial question of law raised for consideration and the said question are as under: “1) Whether the courts below have committed an error in not considering the issue of limitation when the plaintiff is seeking for cancellation of the adoption deed executed on 28.1948? ii) Whether the lower courts have committed an error in holding the adoption deed to be invalid on the ground that the consent of sapinda is not taken? iii) Whether the courts below have committed an error in decreeing the suit on the basis of a will dated 16.1988? 18. Taking into consideration the first question of law raised as above, this court is required to answer the contention put forward by the learned counsel for the appellants as to the plaintiff suit being barred by limitation in seeking the relief of cancellation of the adoption deed. Form the pleadings and the material placed on record, it is established that the defendant claims to be the adopted son of Chikkamma and for this, reliance is placed on Ex-D-4, which is also Ex.P-89 i.e., the adoption deed. The said document is dated 28.1948 and it is a registered document. Form the pleadings and the material placed on record, it is established that the defendant claims to be the adopted son of Chikkamma and for this, reliance is placed on Ex-D-4, which is also Ex.P-89 i.e., the adoption deed. The said document is dated 28.1948 and it is a registered document. The suit is filed by the plaintiff for cancellation of the said deed. The period of limitation is three years for seeking declaration to the said effect. 19. It is an admitted fact that the suit was filed in the year 1988, almost after 48 years of the adoption deed. But, the crucial question is as to the point of time at which plaintiff Chikkamma became aware of the adoption deed. The stand taken by the plaintiff is that she became aware of the adoption only in the year 1988 when the defendant filed the suit, O.S.No. 63/1988, against the brother and brother’s son of the plaintiff. Therefore, if time is reckoned from the date of the aforesaid suit, then the question of the present suit of the plaintiff being barred by limitation does not arise. The plaintiff has not been able to show that the adoption deed Ex.D-4 was not executed on 28.1948. On the other hand, the very plaint averment is to the effect that the thumb mark of the plaintiff appears to have been obtained on a stamp paper and then the document was registered. In order to prove that the plaintiff was not aware of the adoption deed being executed by her in the year 1948, there is no evidence of the plaintiff before the trial court and Chikkamma did not enter the witness box to throw light on the aspect. The respondent herein is the son of Chikkamma’s younger brother. Therefore, in the absence of Chikkamma entering the witness box to deny the adoption deed executed in the year 1948 and the very adoption deed itself has been produced by the defendant by way of a certified copy as per Ex.D-4, the stand of the plaintiff that only in the year 1988, she became aware of the existence of the adoption deed cannot be accepted. 20. The very moment the adoption deed is registered, it is deemed to be a fact known to the parties to the adoption deed. 20. The very moment the adoption deed is registered, it is deemed to be a fact known to the parties to the adoption deed. Therefore, the plaintiff’s case that she became aware of the adoption deed only in the year 1988 cannot be accepted. Once the fact of the plaintiff having become aware of the adoption on the date on which it was executed i.e., 28.1948, is accepted, then, the suit seeking declaration that the adoption is not binding on the plaintiff and it needs to be cancelled ought to have been filed within the period prescribed under the Limitation Act for seeking such declaration. 21. In the instant case, the suit itself was filed almost after 40 years from the date of the adoption deed and, therefore, the suit of the plaintiff is hopelessly barred by limitation. No doubt, the trial court did not go into this aspect of the matter. But, it is clear from Section 3 of the Limitation Act that every suit instituted, appeal preferred, and an application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. In other words, it was the bounden duty of the court to have taken note of the aforesaid mandatory provision of Section 3 of the Limitation Act and the suit of the plaintiff ought to have been dismissed on that score alone. As far as the said question of law being raised in second appeal is concerned, it is well settled that there can be no bar to raise the plea of limitation even at the stage of second appeal. The first substantial question of law is, therefore, answered in the affirmative. 22. Coming to the validity of the adoption deed, the trial court did not accept the adoption deed only on the ground that the consent of the sapindas was not taken by window Chikkamma and secondly, the adoption was not for the purpose of fulfilling the spiritual obligations. Therefore, the point for consideration is whether the courts below were justified in holding that the adoption deed was invalid on account of the consent of the sapindas being not taken. Therefore, the point for consideration is whether the courts below were justified in holding that the adoption deed was invalid on account of the consent of the sapindas being not taken. As far as this crucial aspect is concerned, it has to be stated at the outset that there is no specific averment in the plaint that the adoption deed is invalid for want of obtaining the consent of the sapindas. 23. Though the learned counsel for the respondent referred to paragraph –9 of the plaint to contend that the plaintiff had no qualification for taking the defendant in adoption, yet, it is clear from the pleadings that the plaintiff did not take or make any specific averment in the plaint to the effect that the adoption of the defendant was invalid on account of Chikkamma not having obtained the consent of the sapindas. Therefore, in the absence of a specific plea forthcoming from the plaintiff, trial court could not have recorded a finding against the adoption deed. 24. Be that as it may, coming to the legal position, no doubt in the instant case, the adoption deed is of the year 1948 i.e., prior to coming into force of the 1956 Act. Dealing with the law of adoption by a widow, learned author Mulla, in the work referred to by the learned counsel for the respondent, at page 776 of the first volume, has observed that in the State of Madras, a widow may also adopt without her husband’s authority, where the husband was separated at the time of his death she obtained the consent of his sapindas and where he was joint, she obtains the consent of his undivided co-parceners. 25. In the instant case, it is not in dispute that at the time of adoption deed, Chikkamma had become a window, having lost her husband. Therefore, whether it was incumbent on her part to have obtained the consent of the sapindas is the point for consideration. Having gone through the comments of the learned author Mulla in the two volumes referred to by the learned counsel for the respondent, it is also necessary refer to the two decisions of the Apex Court on which the appellants’ counsel has placed reliance. 26. In the case of V.T.S. Chandrasekhara Mudaliar Vs. Having gone through the comments of the learned author Mulla in the two volumes referred to by the learned counsel for the respondent, it is also necessary refer to the two decisions of the Apex Court on which the appellants’ counsel has placed reliance. 26. In the case of V.T.S. Chandrasekhara Mudaliar Vs. Kulandaivelu Mudaliar, reported in A.I.R. 1963 S.C. 185, referring to the position prior to the coming into force of the 1956 Act, the Apex Court has observed thus: “As the widow acts only as a delegate or representative of her husband, her discretion in making an adoption is strictly conditioned by the terms of the authority conferred on her. But in the absence of any specific authorization by her husband, her power to take a boy in adoption is coterminus with that of her husband, subject only to the assent of the sapindas. To put it differently, the power to adopt is that of the widow as the representative of her husband and the requirement of assent of the sapindas is only a protection against the misuse of it. It is not, therefore, right to equate the authority of a husband with the assent of the sapindas. In essence, the adoption is an act of the widow and the role of the sapindas is only that adyisers.” The Apex Court, in the course of the above observation, also referred to the decision of the Judicial Committee in Balusu Gurulingaswamy Vs. Balusu Ramalakshmamna (I.L.R. 1922 Mad. 398, at page 408, and the said observations are to the following effect: “… …. If the consent of the husband’s krismen has been obtained, the window’s power to adopt is co-extensive with that of her husband. It is, therefore, clear that a Hindu widow in making an adoption exercises a power which she alone can exercise, though her competency is conditioned by other limitations which we shall consider at a later stage. Whether she was authorized by her husband to take a boy in adoption or whether she obtained the assent of the sapindas, her discretion to make an adoption, or not to make it, is absolute and uncontrolled. She is not bound to make an adoption and she cannot be compelled to do so. … ….” 27. Ina later decision in the case of G. Appaswami Chettiar Vs. She is not bound to make an adoption and she cannot be compelled to do so. … ….” 27. Ina later decision in the case of G. Appaswami Chettiar Vs. R.Sarangapani Chettiar, reported in A.I.R. 1978 S.C. 1951, the Apex Court considered the difference between the old Hindu Law relating to adoption and the one under the 1956 Act and has observed that though the 1956 Act is not applicable, the consent of sapindas required under the old Hindu Law has become unnecessary due to changed circumstances. The Apex Court dealt with the requirement of assent of sapindas in paragraph-13 of the aforesaid decision and has held as under: “The Hindu Adoptions and Maintenance Act, 1956 has codified the law of adoption and maintenance. The codified law has made several changes in the law of adoption. With the passing of the Hindu Succession Act, 1956, sons and daughters are treated equally in the matter of succession. Equality in status is recognized in the matter of adoptions also. The Hindu Adoptions and Maintenance Act, 1956, provides for adoption of boys as well as girls. Formerly a woman could adopt only to her husband but now she can adopt for himself. A window can now adopt a son or daughter to herself in her own right. No question of divesting of any property vested in any person arises for under the Succession Act she is entitled to take the property absolutely. Under the change circumstances, therefore, the questions of the sapinda’s consent or depriving him of his reversionary interest or the motive of the widow for adoption do not arise. The adoption in the instant case was in 1953 before the Act come into force. The court has to take into account the changed circumstances particularly disappearance of the basis of the requirements of sapinda’s assent on the ground of presumed incapacity of the woman.” 28. Therefore, it is clear from the aforesaid observations of the Apex Court that under the changed circumstances, the questions of sapinda’s consent or depriving him of his reversionary interest or the motive of the widow for adoption do not arise. Therefore, it is clear from the aforesaid observations of the Apex Court that under the changed circumstances, the questions of sapinda’s consent or depriving him of his reversionary interest or the motive of the widow for adoption do not arise. Further, the Apex Court has clearly stated that though the Act came into force in 1956 and the adoption in the case before it was prior to it in the year 1953, before the Act came into force, it has to be taken into account the changed circumstances particularly disappearance of the basis of the requirement of sapinda’s assent on the ground of presumed incapacity of the women. In fact, the Apex Court has also referred to the decision reported in A.I.R. 1963 S.C. 185 and has quoted the relevant passage, which runs as under: “The basis for the assent of the kinsmen by reason of the presumed incapacity of women for independence seems to have disappeared during the hundred years society has advanced.” 29. In the light of the aforesaid law laid down by the Apex Court and particularly a mention being made of the disappearance of the basis of the requirement of sapinda’s assent, I am of the view that in the case on hand also, the trial court could not have held the adoption deed as invalid merely on account of sapinda’s consent being not obtained. The above decision of the Apex Court is squarely applicable to the case on hand as, in the instant case also, the adoption deed is of the year 1948, whereas the Act came into force in 1956. 30. For the aforesaid reasons, I hold that the courts below were not justified in holding that the adoption deed is invalid merely on the ground of the consent of the sapindas being not taken. As such, the second substantial question of law is also answered in the affirmative. 3.31. 30. For the aforesaid reasons, I hold that the courts below were not justified in holding that the adoption deed is invalid merely on the ground of the consent of the sapindas being not taken. As such, the second substantial question of law is also answered in the affirmative. 3.31. Coming to the last of the substantial question of law raised for consideration, though the plaintiff-1(a) has placed reliance on Ex.P-1, the will said to have been executed in his favour by Chikkamma, the very fact that the will surfaced in the year 1988, hardly within a month of the defendant filing the suit in O.S.No. 63/1988, and the will also mentioning that Chikkamma had not taken anyone in adoption and had not given her properties to anyone, it is clear, that the said will came into existence only to take away the effect of the adoption deed executed as far back in the year 1948. .32. Secondly, the plaintiff has not averred in her plaint that she had bequeathed the suit properties in favour of the present respondent under a will. As such, in the absence of a specific plea forthcoming from the plaintiff in regard to the will being in existence and she having bequeathed the suit properties in favour of the present respondent, the trial court ought to have taken into account this circumstance also apart from the other circumstances referred to by the learned counsel for the appellants. The said circumstances are, P.W.4 mentioning that there is a different ink used while signing at Ex.P-8(g) and at Ex.P-8(h) and the time at which the will was executed is not being spoken to consistently by P.W.2, the scribe, and P.W.3, an attesting witness, and yet another circumstances is P.W.2 admitting that he did not obtain attestation for the signature of Chikkamma in the will, Notwithstanding all these circumstances, the date of execution of the will on 16.1988, long after the adoption deed coming into existence, itself ought to have given rise to the will being .surrounded by suspicious circumstances. 4.33. The trial court did not look into the above aspects and the pleadings and the evidence on record and so also the appellate court erred in simply toeing the line of reasoning by the trial court. 4.33. The trial court did not look into the above aspects and the pleadings and the evidence on record and so also the appellate court erred in simply toeing the line of reasoning by the trial court. Therefore, when the plaintiff herself does not come up with the specific plea to the effect that she has executed the will in favour of her brother’s son i.e., the respondent herein, the trial court could not have given mush importance to the oral evidence placed on record which had lacked necessary support from the pleadings. For the aforesaid reasons, the finding of the trial court in accepting the case of the plaintiff based on the will also cannot be sustained as the said finding is totally perverse and contrary to the pleadings and the evidence on record. Therefore, the answer to the third substantial question of law raised for consideration is also in the affirmative. .34. In arriving at the above conclusions as regards the substantial questions of law raised for consideration are concerned and in coming to the view that interference is called for against the judgments of the courts below, I have also taken note of the parameters of law laid down by the Apex Court with regard to interference by the High Court in second appeal against the concurrent findings of facts. The instant case falls within exceptions (i), (ii) and (iii) of the exceptions referred to by the Apex Court in the case of Kashmir Singh Vs. Harnam Singh reported in 2008 AIR SCW 2417, and the law laid down by the Apex Court in the said case as regards interference is as under: .“(A) As a general rule, the High Court will not interfere with the concurrent findings of facts unless the case comes within the well recognized exceptions viz., (i) the courts below have ignored the material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting finding.” 5.35. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting finding.” 5.35. For the foregoing reasons, interference with the view taken by the courts below in inevitable and the other decisions referred to by the learned counsel for the respondent cannot be pressed into service particularly in the light of this court having held that the suit of the plaintiff is hopelessly barred by limitation. 6.36. In the result, I pass the following order: The appeal is allowed. The judgments of the courts below are set aside and the suit of the plaintiff is dismissed. No costs.