Judgment :- 1. Lone defendant Chanabasanagouda of an original Suit bearing O.S.No.298/1989 is before this Court challenging the judgment and decree passed against him for relief of specific performance of contract and affirmation of the same by the First Appellate Court i.e., the Court of Senior Civil Judge, Haveri in R.A. No. 18/1992. Respondent is the lone plaintiff in the said suit. Parties will be referred to as plaintiff and defendant as per their ranking given in the trial Court. 2. The facts leading to the filing of the suit in O.S.No.298/ 1989 are as follows: Plaintiff was the absolute owner of land measuring 15.29 acres in survey No.67/2B of Shishuvinhal village, Shiggaon taluk. According to the plaintiff, he was in financial crisis and therefore, approached the defendant proposing to sell 5 acres of land on the southern side of survey No.67/2B in favour of defendant on 25.04.1985 and it was agreed to sell 5 acres of land in favour of defendant for Rs.20,000/-and sale deed was got executed on 25.04.1985 by receiving the entire consideration of Rs.20,000/- and possession of the schedule property was also handed over to the defendant on the same day. According to him, an agreement of re-conveyance was entered into between him and the defendant on the same day i.e., 25.04.1985, under which defendant agreed to reconvey the property provided the plaintiff paid a sum of Rs.20,000/- within three years from 25.04.1985. Defendant is stated to be enjoying the suit schedule property as the absolute owner. Plaintiff orally called upon the defendant to execute the deed of reconveyance by receiving a sum of Rs.20,000/-. But he did not come forward and hence plaintiff had to get a legal notice issued on 23.04.1988 calling upon him to receive a sum of Rs.20,000/- and repay the property documents of sale received. The defendant did not come forward to execute regular sale deed in spite his readiness and willingness and hence he had to file a suit for specific performance of contract based on the agreement of sale. 3. According to the defendant, the sale deed is an out and out sale deed and that he had never agreed to reconvey the property and he had never executed any agreement on 25.04.1985 or on any other date, and that the said alleged agreement of sale is a concocted document. The suit is stated to be barred by time. 3. According to the defendant, the sale deed is an out and out sale deed and that he had never agreed to reconvey the property and he had never executed any agreement on 25.04.1985 or on any other date, and that the said alleged agreement of sale is a concocted document. The suit is stated to be barred by time. With these pleadings, he had prayed for dismissal of the suit. 4. On the basis of the above pleadings, following issues came to be framed: i. Whether the plaintiff proves that the defendant agreed to recovery the suit land to the plaintiff as per the agreement dated 25.04.1985 on plaintiff's paying Rs.20,000/- to the defendant within 3 years from 24.04.1985? ii. Whether the plaintiff further proves that he is always ready and willing to perform his part of the contract? iii. If issue Nos. 1 and 2 are answered in the affirmative, then whether the plaintiff is entitled for a decree of specific performance? iv. Whether the plaintiff is entitled to any reliefs claimed by him? v. Whether the defendant proves that the suit is barred by time? vi. What decree or order? 5. Plaintiff is examined him sell as PW1 and one Somangoud Sankanagouda Naganagoudar, an attestor to the agreement of re-conveyance is examined as PW2. 8 exhibits have been got marked on his behalf. Defendant is examined as DW1 and two witnesses have been examined on his behalf. No documents have been marked on behalf of the defendant. Ultimately suit is decreed as prayed for by answering issues 1 to 5 in the affirmative. Defendant has been directed to execute the regular sale deed by receiving a sum of Rs.20,000/- and it is this judgment and decree dated 02.04.1992, which was called in question before the Court of Senior Civil Judge at Haveri by filing an appeal under Section 96 of CPC in R.A. No. 18/1992. 6. Several grounds had been urged on behalf of the defendant challenging the said judgment and decree. After hearing the arguments and perusing the records, the learned Senior Civil Judge has framed the following five points for consideration: i. Whether the plaintiff is ever ready and willing to perform his part of the contract? ii. Whether trial Court has committed an error in considering the non-examination of the scribe in proof of the agreement for re-conveyance? iii. After hearing the arguments and perusing the records, the learned Senior Civil Judge has framed the following five points for consideration: i. Whether the plaintiff is ever ready and willing to perform his part of the contract? ii. Whether trial Court has committed an error in considering the non-examination of the scribe in proof of the agreement for re-conveyance? iii. Whether the suit of the plaintiff is barred by time? iv. Whether the judgment and decree passed by the trial Court is capricious and illegal and bad in law and calls for interference? v. What order or decree? The learned Senior Civil Judge has answered points 1 to 4 in the negative and ultimately dismissed appeal by a considered judgment dated 27.07.2007. It is these concurrent findings, which are called in question on various grounds as set out in the appeal memo. 7. My learned predecessor had framed the following substantial questions of law on 19.04.2001: i. Whether the Court below were justified in holding that the suit for re-conveyance filed on 23.05.1988 after 3 years from 25.04.1985 the date filed for specific performance of the alleged re-conveyance agreement is not barred by limitation under the First part of the Art. 54 of Indian Limitation Act, 1963? ii. Whether the Courts below erred in holding that the reconveyance agreement is proved when the scribe of the said agreement is not examined? 8. After hearing arguments from the learned Counsel for the appellant and perusing the important grounds urged in this appeal memo, on 24.02.2014, questions of law have been rearticulated: i. Whether both the Courts have committed a serious error in coming to the conclusion that the sale deed dated 25.04.1985 is out and out sale deed and not mortgage by conditional sale deed? ii. Whether both the Courts have erred in holding that the suit is not barred by limitation? 9. After recasting the substantial questions of law both the learned advocates have submitted their arguments. Perused the records. 10. Point No.1: As could be seen from the plaint averments, it appears that the case of plaintiff is that, he has executed the sale deed in favour of defendant on 25.04.1985 by receiving the consideration of Rs.20,000/- as he was in financial difficulty. He is stated to have handed over the possession of the suit property from the defendant on the same day. He is stated to have handed over the possession of the suit property from the defendant on the same day. It is his case that, on the same day i.e., on 25.04.1985, there was an agreement between himself and defendant under which defendant had agreed to reconvey the property provided plaintiff repaid a sum of Rs.20,000/- within three years from 25.04.1985. Further case of the plaintiff is that, the defendant has become the Kabjedar of the schedule land on the basis of the mutation entry effected by the revenue authorities on the basis of the sale deed. He is stated to be enjoying the property as the absolute owner. It is his case that, he orally requested the defendant to reconvey the property by receiving the sum of Rs.20,000/- and he did not come forward and as such, he had got a legal notice issued on 23.04.1988 through an advocate. In spite of receipt of legal notice, defendant did not come forward to reconvey the property. In the reply got issued by him, the defendant has emphatically denied the execution of agreement of sale, which is marked as Ex.D3. He has denied not only execution of agreement of reconveyance, but also has contended that the sale deed is an out and out sale deed and that he has been in lawful possession of the property as the absolute owner. In the written statement filed, the defendant has specifically denied the execution of agreement of reconveyance. According to him, he has never executed any agreement of sale and that it is only concocted agreement. Plaintiff is examined himself as PW1 to vouchsafe execution of the agreement of sale and he has also examined one Somanagoud as PW2 to vouchsafe the same. The said Sri.Somangoud examined as PW2 is an attestor. 11. The trial Court has specifically held that, Ex.P3, the agreement of reconveyance has been proved in accordance with law. The First Appellate Court has concurred with the said findings in regard to due execution of Ex.D3. Whether said factual findings can he disturbed by the second Appellate Court under Section 100 of CPC is the question. Suggestion put to PW1 that Ex.P3 has been created by playing fraud play on the defendant has been specifically denied. The First Appellate Court has concurred with the said findings in regard to due execution of Ex.D3. Whether said factual findings can he disturbed by the second Appellate Court under Section 100 of CPC is the question. Suggestion put to PW1 that Ex.P3 has been created by playing fraud play on the defendant has been specifically denied. Further, suggestion put to PW1 that it was specifically created with a sole intention of denying the right of the plaintiff over the suit property has also been specifically denied. 12. PW2 Somanagoudar is also a resident of Shishivinahal village and is known to the plaintiff as well as the defendant. He has identified his signature as found in Ex.P3 as P3(d). According to him, one Gangadhereppa Basappa Tippanagoudar and Basappa Yallappa Bentur were also present and they have attested the said document as attesting witnesses. It is his case that, Ex.P3 was written only on the instructions of defendant. He has identified the signatures of defendant as Ex.P3(b). The signatures of Tammanagouda and Naganagouda also found a place, apart from Somanagoudar in Ex.P3. He has deposed that, talks of agreement of reconveyance took place prior to the registration of sale deed. In fact, he has admitted suggestion put to him that only after agreement of reconveyance was drafted, a registered sale deed was executed. Suggestion put to him that he was not present at the time when the said transaction took place has been specifically denied. Suggestion put to him that he is a close relative of plaintiff has been specifically denied. Admittedly, PW2 is a disinterested witness and has no axe to grind against the defendant. Apart from this, he has volunteered that defendant is also his relative. 13. Therefore, plaintiff has vouchsafed the due execution of Ex.P3 by examining reliable witness i.e., PW2. Therefore, this second Appellate Court cannot interfere with the well considered finding in regard to the due execution of Ex.P3. 14. What is argued before this Court by the learned Counsel for the appellant is that, the contents of paragraph Nos. 3 and 4 of plaint would disclose that the transaction in question was Dot an out and out sale transaction, but a clear case of mortgage by conditional sale. 14. What is argued before this Court by the learned Counsel for the appellant is that, the contents of paragraph Nos. 3 and 4 of plaint would disclose that the transaction in question was Dot an out and out sale transaction, but a clear case of mortgage by conditional sale. In this regard, the learned Counsel for the appellant has vehemently argued that the talks in regard to reconveyance took place on the same day when the sale deed was executed, more particularly, when the plaintiff was in financial crisis. It is in this regard he has drawn the attention of this Court to the relevant portion of the evidence of PW1 - plaintiff recorded on 16.07.1991. PW1 has admitted about a similar suit being filed against one Doddaningappa in the Civil Judge Court at Haveri and about the same contention being taken up by him in the said suit. He has admitted that in the said suit also, he has averred in regard to the nature of transactions. The relevant portion of cross-examination of PW1 is as follows: "It is true to say that in the said suit also I averred that suit transaction is mortgage and sale is not an out and out sale. In the said suit also Sir. NMK is my advocate" 15. Placing reliance of this portion of deposition, learned Counsel for the appellant has vehemently argued that this is an important admission, which goes to the very root of the case of the plaintiff arid therefore, transaction cannot be considered as one of reconveyance of property based on the agreement; but a clear case of mortgage with conditional sale. He has vehemently argued that, since both documents having come into being on the same day, the agreement in regard to reconveyance should have found place in the sale deed as per Section 58(c) of the Transfer of Property Act. He has vehemently argued that, in the light of the agreement of reconvayance being not incorporated in the agreement of sale, there cannot be any reconveyance. 16. It is true that in Ex.P3, which is styled as agreement of reconveyance, there is a reference about sale deed executed by plaintiff in favour of defendant. On a plain reading of Ex.P3, it appears that Ex.P3 came into being only after the sale deed was executed. 16. It is true that in Ex.P3, which is styled as agreement of reconveyance, there is a reference about sale deed executed by plaintiff in favour of defendant. On a plain reading of Ex.P3, it appears that Ex.P3 came into being only after the sale deed was executed. If sale deed was not prior to Ex.P3, there could not have been any reference of sale deed in Ex.P3. It is in this regard, a decision in the case of Bishwanath Prasad Singh Vs. Rajendra Prasad & Anr. reported in AIR 2006 SC 2965 is relevant. Relying upon Section 58(c) of the Transfer of Property Act, Hon'ble Supreme Court has held, "if the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not." Accordingly, reconveyance is an option contract and the right has to be exercised within the period of limitation provided therefor. The said decision rendered in Bishwanath Prasad Singh's (supra) has been followed subsequently by the Hon'ble Supreme Court in the case of Manjabai Krishna. Patil (D) by LRS Vs. Raghunath Revafi Patil & Anr. reported in (2007) 12 SCC 427 . Relying upon this decision rendered in Bishwanath Prasad Singh's case in paragraph 12 of Manjabai Krishna Patil’s case, it is held that, where two documents are executed, the transaction in question would not amount to a mortgage by way of conditional sale. In a case of this nature, ordinarily the same would be considered to be a deed of sale coupled with an agreement of reconveyance. 17. In paragraph 13 of Manjabai Krishna Patil's case, Bishwanath Prasad Singh's case has been referred to and followed. 18. While taking into consideration admission as contemplated under Section 17 of the Evidence Act, more particularly, in regard to immovable properties, the Courts are expected to be cautious. One or two sentences cannot be drawn out of context and cannot be blown out of proportion to nullify the effect of transaction or the effect of pleadings as a whole. In the present case, the case put forward by the plaintiff is based on an out and out sale executed by him on 25.04.1985 and execution of an agreement of reconveyance by the defendant on the same day. In the present case, the case put forward by the plaintiff is based on an out and out sale executed by him on 25.04.1985 and execution of an agreement of reconveyance by the defendant on the same day. In fact, in the present case, plaintiff has specifically averred that, defendant has become the absolute owner of the property and that he is in possession of the same. It is his case that, defendant has become the kabjedar of the suit schedule property and that he had agreed to reconvey the property. On the other hand, defendant's case is one of total denial of execution of Ex.P3. 19. In the light of Ex.P3 being proved to the hilt by examining one of the important attestors and in the light of two separate documents having come into being on the same day, it can be certainly held that the transaction in question is not a mortgage by conditional sale, but an out and out sale in favour of defendant and defendant in turn having agreed to reconvey the property within three years provided the plaintiff were to repay a sum of Rs.20,000/-. 20. What exactly is the case put forward by the plaintiff in the connected suit, in which a reference is made by him during the course of cross-examination is not forthcoming. Therefore, much credence cannot be attached to the so-called admission culled out from the mouth of PW1 during the course of cross- examination. Notice of this Court is drawn to the relevant portion of cross-examination of defendant, who is examined as DW1. During the course of examination-in-chief, defendant has deposed that his signature is found on Ex.P3, which was obtained on blank paper. This appears to be not palatable. 21. Hence the trial Court has not committed any error in coming to the conclusion that the registered deed dated 25.04.1985 marked as Ex.P1 is an out and out sale deed and Ex.P3 is an out and out agreement of reconveyance under which defendant has agreed to reconvey the property provided the plaintiff were to repay the sum of Rs.20,000/- within three years. Even the First Appellate Court has concurred with the factual finding given by the trial Court in regard to due execution of Ex.P3 and registered deed dated 25.04.1985 marked as Ex.P1 as an out and out sale deed under which defendant has had become absolute owner in possession. Hence substantial question of law No.1 framed on 24.02.2014 is answered in the negative. 22. Point No.2: The Trial Court held that the suit is not barred by time. The First Appellate Court has concurred with the said finding given on limitation. Suit came to be filed within three years from the date of execution of Ex.P3. Time stipulated in Ex.P3 was three years. Notice was got issued well in time and suit was filed immediately after the reply was received from the defendant. Therefore, the suit filed by the plaintiff seeking reconveyance of the property is in time and hence the finding given by the trial Court in regard to limitation and confirmed by the First Appellate Court is proper. 23. In this view of the matter, there are no good grounds to interfere with the well considered judgment of the trial Court and the First Appellate Court. Both the Courts have adopted right approach to the real state of affairs by assessing the evidence on the touchstone of intrinsic probabilities. By no stretch of imagination, the judgment of the trial Court and the First Appellate Court could be construed as illegal or perverse. Hence the appeal is liable to be dismissed without there being any scope for interference with the well considered factual findings. ORDER Appeal filed under Section 100 of CPC is dismissed with costs. Judgments of the trial Court and the First Appellate Court are upheld with costs.