Judgment : 1. This second appeal is filed by the plaintiff inveighing the judgement and decree dated 25.6.2008 passed by the Principal Subordinate Munsif, Coimbatore, in A.S. No. 21 of 2008 wherein and by which the judgment and decree dated 16.03.2007 recorded in O.S. No. 2088 of 2005 on the file of the I Additional District Munsif, Coimbatore, were reversed allowing the First Appeal at the instance of the defendant. 2. The plaintiff has filed the suit for grant of mandatory injunction direcrting the defendant to return the original sale deed dated 11.9.1990 standing in her name. 3. The facts leading to the filing of the suit are set out as under:- The plaintiff, who purchased the suit property measuring an extent of 7 cents and 28 sq.ft. of land in S. No. 160/3B in Coimbatore, by virtue of a sale deed dated 11.9.1990 from one M.Sundarrajan, entrusted the same to the defendant who was running a firm under the name and style of ‘Arputharaj Associates’ for the purpose of construction of a shop and a house under a construction agreement on 29.11.1995 as per which, an advance of 1.5 Lakhs was paid for the proposed construction which was estimated at a total cost of Rs. 7 Lakhs. The time fixed was between 5 and 7 months for completion of the construction. On the date of agreement itself, the plaintiff had handed over the original title deed dated 11.9.1990 to the defendant for the purpose of obtaining building permit, etc. Thus the defendant was holding the title as a trust deed. The plaintiff further contended that she had also given 10 cheque leaves drawn on Dhanalakshmi Bank, Peelamedu Branch. It is stated that though the plaintiff did not have an account in the said Dhanalakshmi Bank, at the instance of the defendant, an account was opened on 06.11.1995 and a cheque book was obtained which was given to the defendant. As the defendant failed to finish the construction within the time agreed, the plaintiff was requesting him to complete the construction and hand over possession. While so, on 07.3.2002, the plaintiff received a notice under Section 138 of the Negotiable Instruments Act alleging that the plaintiff owed a sum of Rs. 7,14,000/- under the cheque bearing No. 659074 dated 19.02.2002 drawn on Dhanalakshmi Bank. The plaintiff also replied to the same suitably. However, the defendant did not proceed further. While so, on 07.3.2002, the plaintiff received a notice under Section 138 of the Negotiable Instruments Act alleging that the plaintiff owed a sum of Rs. 7,14,000/- under the cheque bearing No. 659074 dated 19.02.2002 drawn on Dhanalakshmi Bank. The plaintiff also replied to the same suitably. However, the defendant did not proceed further. Again, on 25.10.1995, the plaintiff caused legal notice to the defendant demanding return of the original documents and the balance of the cheque leaves. Though the defendant received the notice, there was no response. Hence, the suit has been filed for directing the defendant to return the original title deeds. 4. The defendant contested the suit, inter alia, contending that the he never collected the original title deed. Though the defendant admitted that there was an agreement between him and the plaintiff for construction, he denied the receipt of 10 cheque leaves drawn on Dhanalakshmi Bank. The notice dated 07.3.2002 issued under Section 138 of the Negotiable Instruments Act was admitted by the defendant. According to him, the plaintiff had borrowed money from one Suresh and as a security, she had deposited the original title deeds with him. Therefore, there was no cause of action against the defendant. Hence, prayed for dismissal of the suit. 5. Before the trial Court, the plaintiff examined herself as P.W.1 and marked Exs. A.1 to A.10. To nullify the evidence of the plaintiff, the defendant examined himself as D.W.1 and marked Exs. B.1 to B.5. 6. The trial Court / learned I Additional District Munsif, Coimbatore, on consideration of the evidence adduced and the materials available thereon, decreed the suit as prayed for. Challenging the same, the defendant preferred appeal in A.S. No. 21 of 2008. The Lower Appellate Court, after appreciating the facts, reversed the judgment of the trial Court and allowed the appeal dismissing the suit. Feeling aggrieved, the plaintiff has come up with this Appeal. 7. Challenging the same, the defendant preferred appeal in A.S. No. 21 of 2008. The Lower Appellate Court, after appreciating the facts, reversed the judgment of the trial Court and allowed the appeal dismissing the suit. Feeling aggrieved, the plaintiff has come up with this Appeal. 7. At the time of admission of this appeal, this Court formulated the following substantial questions of law for consideration:- (a) When it is well settled in law that Appellate Court should not interfere with finding of trial Judge on question of facts unless there is special feature about evidence of particular witness which has escaped trial Judge's notice or there is sufficient balance of improbability to displace his opinion as to where credibility lies, whether the Lower Appellate Court is correct in law in reversing the judgment of the trial Court (2000 (1) CTC 505)? (b) Whether the Lower Appellate Court is correct in law in reversing the well considered judgment and decree of the trial Court, without adverting to any of the reasons given by the trial Court, especially when it is a final Court of fact and when it is incumbent upon it to decide the appeal by considering the entire evidence on record and the probabilities of the case? (c) Whether the lower Appellate Court is justified in law in making special pleadings on behalf of the respondent when the respondent himself has not taken a plea that the suit is bad for nonjoinder of parties and further more when he remained silent and failed to reply the legal notice (Ex. A.4) issued by the appellant? 8. Heard the learned counsel appearing for the parties and perused the records. 9. Learned counsel appearing for the plaintiff / appellant contended that in order to defeat the legitimate right of the appellant, the defendant has introduced one Suresh in this case with whom the appellant has got no relief to seek nor any contract would bind. When the construction agreement is admitted by the defendant, who is an Engineer, in all probabilities, he would have received the title deeds of the property together with cheque received by him for Rs.7,14,000/-. As the defendant has admitted the execution of the construction agreement under Ex. When the construction agreement is admitted by the defendant, who is an Engineer, in all probabilities, he would have received the title deeds of the property together with cheque received by him for Rs.7,14,000/-. As the defendant has admitted the execution of the construction agreement under Ex. A.2 dated 29.11.1995, the only question to be seen is whether the plaintiff is entitled for return of the document which is alleged to be in the custody of the defendant to be returned to him. The exchange of notices between the parties are important in considering the said issue. 10. A perusal of Ex. A.3 dated 07.3.2002 issued by the defendant to the plaintiff under Section 138 of the Negotiable Instruments Act, would show that the plaintiff had availed financial assistance from the defendant and the total amount borrowed with interest comes to Rs.7,14,000/- and the cheque issued for the said sum in Cheque No. 659074 dated 19.02.2002 drawn on Dhanalakshmi Bank was dishonoured. Hence, the notice was issued. It is also seen from the materials available on record that though the defendant had issued the above notice, he had not proceeded further by filing a complaint under Section 138 Negotiable Instruments Act. The next document is Ex. A.4 issued by the plaintiff to the defendant on 25.10.2005 itself demanding for the return of the original title deed. As the same was not complied with, the plaintiff had issued the said notice for the return of original title deeds along with the cheque book drawn on Dhanalakshmi Bank. Yet another document is Ex. A.6 dated 25.02.2006 issued issued by one Suresh to the plaintiff under Section 138 of the Negotiable Instruments Act demanding a sum of Rs.3,75,000/-. 11. From the materials available on record, it is seen that the suit was filed on 23.11.2005 after issuing the pre-suit notice on 25.10.2005 under Ex. A.4. Ex. A.6 is dated 25.02.2006 which is subsequent to the suit. Learned counsel appearing for the appellant / plaintiff contended that the plaintiff does not know who the said Suresh was and the cheque which was dishonoured. According to the plaintiff, there is no privity of contract between the said Suresh and herself and Ex. A.6 was sent after the institution of the suit, ie., on 25.02.2006, as per which the next number of the cheque leaf, ie., 659075, was issued and presented by the defendant on 14.10.2005. According to the plaintiff, there is no privity of contract between the said Suresh and herself and Ex. A.6 was sent after the institution of the suit, ie., on 25.02.2006, as per which the next number of the cheque leaf, ie., 659075, was issued and presented by the defendant on 14.10.2005. Ex. A.3 notice by the defendant for the dishonour of cheque bearing No. 659074 was issued on 07.3.2002 whereas the cheque bearing No. 659075 dated 14.10.2005 is alleged to have been dishonoured and notice was issued under Ex. A.6 on 25.02.2006. The period between the issuance of the two cheques is 3= years. The above said facts do not appear to be a normal happening as the length of time is more than 3 = years between two cheques. 12. Another aspect is that the defendant having issued notice under Section 138 of the Negotiable Instruments Act for a huge sum of Rs. 7.14 Lakhs, has not proceeded further. It is also not the case of the defendant that the money was paid subsequently by the plaintiff. Therefore, it was contended by the learned counsel for the appellant that Ex. A.6 notice was issued at the instance of the defendant through one Suresh with whom the plaintiff has got no acquaintance or privity. A reading of Ex. A.6 also would go to show that the said Suresh was set up by the defendant to issue the said notice and to show that the original document dated 11.9.1990 was handed over to the said Suresh when she borrowed the loan of Rs.3 Lakhs. The issuance of Ex. A.6 is also a counter blast to the filing of the suit. The dates of Exs. A.3 to A.6 would go to prove the foul play by the defendant. Interestingly, in between these two notices, the plaintiff also had sent Ex. A.4 notice dated 24.10.2005 which is the pre-suit notice. Instead of responding to the same, Ex. A.6 was issued by one Suresh, at the instance of the defendant. 13. The principles of preponderance of probabilities would decide the civil case, which is more applicable in the given set of facts. The sequence of the notice and conduct of parties would only support the case of the plaintiff. Instead of responding to the same, Ex. A.6 was issued by one Suresh, at the instance of the defendant. 13. The principles of preponderance of probabilities would decide the civil case, which is more applicable in the given set of facts. The sequence of the notice and conduct of parties would only support the case of the plaintiff. Though the defendant tried to deny the fact that he had not received the original sale deed and the cheque leaves, when the execution of the construction agreement is admitted, the rest of it follows. The lower Appellate Court failed to take note of the fact that Ex. A.6 was issued only after institution of the suit by the appellant which would go to show that the respondent had attempted to divert the claim and make plea that the said Suresh is having the title deeds belonging to the appellant. In the absence of any evidence, the Lower Appellate Court was wrong in reversing the well-considered judgment of the trial Court. 14. In this regard, learned counsel appearing for the appellant tried to impress upon the Court on the duty of the appellate Court. He pressed into service the decision of the Hon'ble Apex Court in Sarju Pershad Ramdeo Sahu vs. Jwaleshwari Pratap Narain Singh and others [ AIR 1951 SC 120 ] wherein in paragraphs 12 and 13, it has been held as follows:- Para 12: There were thus two conflicting versions placed before the Court and each side attempted to substantiate its case by verbal testimony of witnesses. The trial Judge was to decide which of the two versions was correct and he accepted the story of the plaintiff and rejected that of the defendant. Para 13: The learned Judges of the High Court in dealing with the appeal do observe at the beginning of their discussions that on a question of fact the appellate Court should be slow to differ from the conclusions arrived at by the trial Judge who had seen and heard the witnesses ; but in their opinion, this rule did not apply to the present case as the trial Judge here did not base his conclusions on the impressions created in his mind by the witnesses who deposed before him. What the trial Judge relied upon, it is said, was not the demeanour of the witnesses as index of their credibility but upon the inherent improbability of the circumstances deposed to by the defendant's witnesses. It is observed by the High Court that the trial judge, when he found the defendant's story to be improbable, should have considered whether or not there were improbable features in the plaintiff's case also, and whether the evidence of the plaintiff and his servant Buddhu Lal merited credence at all. The learned Judges at the High Court then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the deft. s case was unreliable. These reasons are held to be inconclusive and unsound and the High Court further found that the plaintiff's story as narrated by him and his servant, is improbable and not worthy of belief. 15. No doubt, one cannot say that the trial Judge can always be treated as infallible in determining the demeanour of the parties. The Court of first instance can go wrong on a question of fact in estimating the value of oral testimony of parties. The First Appellate Court being the final Court of facts, ought to have considered the evidence as a whole to see any element of improbability arising from proved circumstances. 16. On a conspectus of entire facts and circumstances of the case and on taking note of oral and documentary evidence adduced by the witnesses on either side and also, in the light of the detailed qualitative and quantitative discussion mentioned supra, this Court comes to an inevitable conclusion that the Lower Appellate Court, being a final Court of fact, dismissed the appeal without considering the reasons given by the trial Court regarding the failure on the part of the defendant to establish his case thereby leading to perverse finding. In the reasoning set out in the decision cited supra, this Court is inclined to hold that the preponderance of probabilities are in favour of the plaintiff and the questions of law raised are answered materially and substantially in favour of the plaintiff. In the reasoning set out in the decision cited supra, this Court is inclined to hold that the preponderance of probabilities are in favour of the plaintiff and the questions of law raised are answered materially and substantially in favour of the plaintiff. In the light of the foregoing discussion, the Second Appeal succeeds and stands allowed and the judgment and decree of the trial Court dated 16.03.2007 passed in O.S. No. 2088 of 2005 are restored decreeing the suit in favour of the plaintiff and directing the defendant to return the original sale deed dated 11.9.1990 to the plaintiff. Consequently, the judgment and decree passed by the Lower Appellate Court are set aside. However, in the circumstances of the case, there shall be no order as to costs.