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2018 DIGILAW 1863 (ALL)

Ram Bahadur v. Brij Mohan

2018-08-27

SIDDHARTH

body2018
JUDGMENT : 1. Heard Shri M.N. Pandey, learned counsel for the appellant and Shri Kamlesh Singh, learned counsel for the respondent. 2. This is defendant's second appeal against the judgment and decree dated 21.11.2007 passed by Shri Ramesh Shankar, District Judge, Mainpuri in Civil Appeal No.11 of 2003 confirming the judgment and decree dated 9.5.2003 in part and partly setting aside the judgment and decree of the trial court passed in Original Suit No.187 of 1996 by the Civil Judge (J.D.), Mainpuri. 3. The plaintiff instituted a suit for specific performance of two contracts of sale dated 28.11.1992 and 28.12.1994 against the defendant. Alternative prayer for refund of the advance sale consideration along with interest was also prayed. 4. 3. The plaintiff instituted a suit for specific performance of two contracts of sale dated 28.11.1992 and 28.12.1994 against the defendant. Alternative prayer for refund of the advance sale consideration along with interest was also prayed. 4. The plaintiff's case is that defendant Ram Bahadur is the owner in possession of Bhumidhari plot No.869, area 0.401 hectare situated in Mauza Jasrau, Pargana Tahsil and District Mainpuri; that defendant agreed to sell his half share in the aforesaid property to the plaintiff for an amount of Rs.18,000/- and plaintiff paid Rs.14,000/- as advance sale consideration and executed registered agreement to sell dated 28.12.1992; that a period of two years was provided in the agreement for the purpose of execution of sale deed after taking the remaining sale consideration; that plaintiff kept on requesting the defendant to execute the sale deed, but he kept on avoiding him and later defendant posed a condition before the plaintiff that in case he is willing to purchase his remaining half part of his property, he will execute the sale deed of the entire property; that accordingly, another registered agreement to sell dated 28.12.1994 was executed between the parties and it was agreed that within two years the sale deed shall be executed; that the sale consideration of Rs.18,000/- was agreed and Rs.14,000/- was again given to the defendant as advance sale consideration by the plaintiff; that plaintiff requested the defendant to execute the sale deed, but he kept on avoiding him and finally a notice dated 4.1.1996 was given by the plaintiff to the defendant to appear before the Sub-Registrar, Mainpuri on 16.1.1996 for executing the sale deed; that after receipt of notice defendant sought six months' further time for executing the sale deeds, but did not kept his words; that on 31.10.1996 plaintiff again sent a notice to the defendant, which he returned and it was received back around 8.11.1996; that on 8.11.1996 the plaintiff had already got his attendance noted before the Sub-Registrar and he sent the third notice dated 18.11.1996 to the defendant to execute the sale deed on 30.11.1996, but the defendant refused to accept the notice; that the plaintiff appeared before the Sub-Registrar, Mainpuri and get his attendance noted; that the plaintiff was always ready and willing to get the sale deed executed along with the money, but the defendant did not executed the same and hence, the suit was instituted. 5. Defendant filed his written statement admitting ownership and possession of the disputed property, but denied that he ever entered into any agreement with the plaintiff for selling his land, which is the only means of his livelihood; that defendant stated that he performed the marriage of his daughter in 1990 and had taken considerable loan; that in the meantime his son became ill and he had to spent about Rs.20,000/- on his treatment, therefore, he could not return the loan; that he had to take loan from the plaintiff of Rs.14,000/- and for securing the same he got the agreement executed on 28.12.1992; that it was agreed that the defendant will repay the loan within two years, which he has done, but he did not get the agreement to sell back from the plaintiff; that plaintiff informed him that after the time fixed in the agreement for execution of sale deed has come to an end, he cannot do anything against him, in case it is required, he will get the same cancelled; that defendant went to the Sub-Registrar's office on 28.12.1994 for getting the agreement to sell dated 28.12.1992 cancelled, but plaintiff got another agreement executed on 28.12.1994 regarding his land; that plaintiff never had the means to purchase his land and he never gave any notice for execution of the sale deed; that plaintiff was never ready and willing to get the sale deed executed and he had no money for the purpose; that suit of the plaintiff is barred by time from the agreement dated 28.11.1992 and the agreement dated 28.12.1994 is forged and fabricated and not binding on him; that the agreement was never read over and explained to him; that he was only told that these documents are being executed on 28.12.1994 for cancellation of the earlier agreement dated 28.12.1992. 6. 6. The plaintiff filed his application denying the averments in the written statement and stated that he never took any loan from the defendant; that in both the agreements there is only mention of the agreements being agreement to sell and only to usurp Rs.28,000/- paid by the plaintiff the defendant is making false allegations; that the plaintiff sent three notices to the defendant, but he never replied to the same; that his suit is not barred by time and he was and he still willing to get the sale deeds executed; that he had necessary funds available since the time of the agreement and it is still available with him. 7. On the basis of the pleadings of the parties necessary issues were framed by the trial court, which are as follows: 1. Whether the defendant entered into agreement to sell of half part regarding plot No.869, area 0.401, for an amount of Rs.18,000/- vide agreement dated 28.12.1992 or the amount of Rs.14,000/- was paid by the plaintiff to the defendant as loan? 2. Whether the plaintiff entered into an agreement to sell regarding half portion of plot No.869, area 0.401 on 28.12.1994 and paid Rs.14,000/- to the defendant as advance sale consideration? 3. Whether the plaintiff had always being ready and willing to get the sale deeds executed from the defendant as per the agreement to sell dated 28.12.1992 and 28.12.1994? 4. Whether the plaintiff has no cause of action for instituting the suit? 5. Whether the suit is barred by time regarding agreement to sell dated 28.12.1992? 6. To what relief, if any, is the plaintiff entitled? 7. Issue No.1 was decided by the trial court holding that the agreement to sell dated 28.12.1992 was executed in lieu of loan. Issue No.2 was decided by the trial court holding that the second agreement to sell dated 28.12.1994 was executed by the defendant in favour of plaintiff after accepting Rs.14,000/- and the issue was decided in favour of the plaintiff. Issue No.3 was decided holding that the plaintiff was always ready and willing to get the sale deeds executed in pursuance of the agreements dated 28.12.1992 and 28.12.1994. Issue No.4, regarding jurisdiction of the civil court to entertain the suit was decided in favour of the plaintiff. Issue No.5 was decided holding that the suit is not barred by time regarding first agreement to sell dated 28.12.1992. Issue No.4, regarding jurisdiction of the civil court to entertain the suit was decided in favour of the plaintiff. Issue No.5 was decided holding that the suit is not barred by time regarding first agreement to sell dated 28.12.1992. Issue No.6 was decided holding that since the first agreement dated 28.12.1992 was executed for securing the loan of Rs.14,000/-, which was not returned by the defendant to the plaintiff, therefore, the defendant was directed to return Rs.14,000/- to the plaintiff within two months along with 12% interest per annum. It was also found that the agreement to sell dated 28.12.1994 was valid and therefore, the plaintiff was held entitled to a decree of specific performance of contract and the suit was decreed directing the defendant to get the sale deed executed in favour of plaintiff as per the agreement to sell dated 28.12.1994 within two months. 8. Aggrieved by the judgment of the trial court the defendant preferred Civil Appeal No.11 of 2003 before the lower appellate court , which reversed the part of the decree of the trial court regarding return of Rs.14,000/- to the plaintiff along with 12% interest holding the amount to be loan and the suit of the plaintiff was fully decreed by the lower appellate court for execution of the two sale deeds in favour of the plaintiff in pursuance of the agreement to sell dated 28.12.1992 and 28.12.1994. 9. Aggrieved by the judgment and decree of the lower appellate court the defendant has preferred this second appeal. This appeal is listed under Order 41 Rule 11 C.P.C. before this Court. 10. Learned counsel for the parties have agreed that the appeal may be admitted and heard on all the substantial questions of law framed in the memorandum of appeal, which are as follows: 1. Whether the lower appellate court has committed substantial error of law in ignoring the findings of the trial court with regard to the agreement dated 28.12.1992, which was found to be an agreement executed for the purpose of securing loan and it was treated as agreement to sell along with agreement dated 28.12.1994? 2. Whether the lower appellate court can grant relief beyond pleadings and reliefs claimed by the plaintiff? 3. 2. Whether the lower appellate court can grant relief beyond pleadings and reliefs claimed by the plaintiff? 3. Whether the lower appellate court was correct in treating the agreements dated 28.2.1992 and 28.12.1994 as agreement to sell while the same was not proved by the witness of the same? 4. Whether the courts below were correct in not considering the admission of plaintiff who has admitted that the agreement was executed for the security of withdrawing of the amount which has been taken by the defendant? 5. Whether without framing issue with regard to the main dispute of the land in question, the court can decide the same on the basis of presumption? 6. Whether the appellate court can proceed on the basis of presumption without reversing the finding of trial court? 7. Whether the court below can grant relief beyond the pleading and relief claimed by the plaintiff setting up a third case? 8. Whether the courts below were justified in ignoring admission of the plaintiff and proceeded ignoring the evidence of DWs? 9. Whether the entire land in question, which is being alleged to be subject matter of agreement to sale executed, will come under the purview of Specific Performance Act? 11. Learned counsel for the parties have stated that they are prepared to argue the case and do not want any adjournment. Since learned counsel for the parties have expressed their willingness to argue the appeal today itself and have not sought any time to prepare the case on the substantial questions of law framed in this appeal, therefore, the Court has proceeded to hear the appeal. 12. Learned counsel for the defendant-appellant has submitted that the judgments and decrees passed by both the courts below are illegal. The trial court passed the judgments and decrees on the basis of the evidence of only the witnesses of the plaintiff and did not consider the evidence led by the defendant. The plaintiff admitted in his cross examination that he has no knowledge of the date of agreement nor he sent any notice to the defendant for execution of the agreement to sell. The trial court decided issue No.1 holding that the agreement to sell dated 28.12.1992 is an agreement to return the amount, but the lower appellate court has reversed the finding on the basis of presumption ignoring the admission of the plaintiff. The trial court decided issue No.1 holding that the agreement to sell dated 28.12.1992 is an agreement to return the amount, but the lower appellate court has reversed the finding on the basis of presumption ignoring the admission of the plaintiff. The land in dispute is the only source of livelihood of the defendant and therefore, the court below should not have examined the discretion vested in it in favour of the plaintiff and the suit should have been dismissed. In the agreements to sell dated 28.12.1992 and 28.12.1994, Naresh Chandra and Ram Chandra, who are witnesses, are also mediators. Both the witnesses have stated that the agreement was not read before them and they were not aware of their contents. The trial court has travelled beyond the pleadings and has granted the relief of return of the amount of Rs.14,000/-, mentioned in the agreement dated 28.12.1992, without there being any relief in this regard in the plaint, which is not permissible in law. No evidence regarding readiness and willingness was led by the plaintiff since he admitted in his cross examination that he never sent any notice to the defendant for execution of the sale deed. Both the disputed agreements were based on fraud and the courts below have wrongly decreed the suit of the plaintiff. 13. Learned counsel for the appellant has argued that the agreements in dispute were not agreements to sell but agreements for securing loan. The trial court rightly recorded the findings to this effect. From the evidence on record it was clearly proved that the real intention behind the execution of the agreement was providing security for loan. The form of the document will not override the real intent behind its execution which was admitted by the plaintiff in his statement. He has relied upon the judgment of the Apex Court in the case of Tejram Vs. Patirambhau, 1997 LawSuit(SC) 594 and has relied upon para 4, which is as follows: "4. Having regard to respective contentions, the question that arises for consideration is; whether the respondent has paid Rs.48,000/- as cash consideration towards sale transaction? It is seen that document purporting to be an agreement of sale was not , in fact, in truth and in reality, not an agreement of sale, witness No.2, the scribe of the agreement admitted in the examination-in-chief that he had executed several similar documents. It is seen that document purporting to be an agreement of sale was not , in fact, in truth and in reality, not an agreement of sale, witness No.2, the scribe of the agreement admitted in the examination-in-chief that he had executed several similar documents. All those documents i.e., 10 out of 8, relate to specific performance; all of them are of those who took loan from the respondents. It is an admitted position that the respondent is a money- lender. Under these circumstances, the document purporting to be an agreement for sale is in fact not an agreement for sale; it is towards the unpaid interest on the loan taken by the respondent. It is seen that the High Court also accepted that the appellant had taken a loan in 1965 for a sum of Rs.1500/- and repaid Rs.3500/-. Shri Deshpande says that the sum of Rs. 15,000/- is not factually correct; it is actually only Rs.1,500/-. If it is true sale transaction and the respondent being a businessman and having purported to have paid Rs.48,000/-, one would expect that he would seek possession or he would pay the balance consideration and request for execution of the sale deed. Instead, he kept quite for full 3 years. be that as it may, it would appear that there was money transaction between the appellant and the respondent and the respondent, being money-lender, was taking documents, purporting to be an agreement of sale, from the loanees. In the event of the loanees failure to pay the loan amount along with interest stipulated by him, the documents would, obviously, be executed, with a view to enforce the repayment of loan and interest accrued thereon. it is unlikely that being a money-lender and having parted with Rs.48,000/- as cash, he would have kept quite either for seeking possession of the property or payment of Rs.2,000/- immediately and then sought specific performances; it would be unlikely in the normal circumstances that he would have waited for 3 years for issuing notice and then filing suit on the last date. Under these circumstances, the Courts below rightly came to the conclusion that it is not an agreement for sale or purports to be a sale in truth and in reality, but in view of the admission made by the respondent by way of endorsement that he had received Rs.48,000/- and in the absence of any specific circumstances and in view of the doubtful conduct of both the parties, it is not possible for us to reach any satisfactory conclusion on the basis of evidence as to what a was the amount actually due to paid by the appellant to the respondent and what amount is still payable. Under these circumstances, we are of the considered view that the ends of justice would be met if the conclusion reached by the High Court that a sum of Rs.48,000/- was paid by the respondent to the appellant, is confirmed. However, respondent is not entitled to payment of any interest or cost, as ordered by the High Court. Under these circumstances, the order of the Division Bench of the High Court for payment of Rs.65,280/- is set aside. Instead, there will be a decree for a sum of Rs.48,000/- in lump-sum without any interest." 14. Further reliance has been placed on the judgment of the Apex Court in the case of Union of India Vs. Ibrahim Uddin and another, 2012 LawSuit(SC) 433. To advance the argument that admission is the best piece of evidence that the other side can rely upon, he has relied upon paragraph 20 and 21 of the aforesaid judgment, which are as follows: "20. Admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission. It would be appropriate that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission. (Vide: Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi & Ors., AIR 1960 SC 100 ; Basant Singh v. Janki Singh & Ors., AIR 1967 SC 341 ; Sita Ram Bhau Patil v. Ramchandra Nago Patil, AIR 1977 SC 1712 ; Sushil Kumar v. Rakesh Kumar, AIR 2004 SC 230 ; United Indian Insurance Co Ltd. v. Samir Chandra Choudhary., (2005) 5 SCC 784 ; Charanjit lal Mehra & Ors v. Kamal Saroj Mahajan & Anr., AIR 2005 SC 2765 ; and Udham Singh v. Ram Singh & Anr., (2007) 15 SCC 529.) 21. In Nagubai Ammal & Ors. v. B.Shama Rao & Ors., AIR 1956 SC 593 , this Court held that admission made by a party is admissible and best evidence, unless it is proved that it had been made under a mistaken belief. While deciding the said case reliance has been placed upon the judgment in Slatterie v. Pooley, (1840) 6 M & W 664, wherein it had been observed "What a party himself admits to be true, may reasonably be presumed to be so." 15. Learned counsel for the plaintiff-respondent has argued that the judgment of both the courts below are based on correct reasonings after relying upon the material on record and call for no interference by this Court. Learned counsel has relied upon the paragraph nos.14 to 60 of the judgment of the Apex Court in the case of Gurdev Kaur Vs. Kaki, 2006 LawSuit(SC) 1221: 2006 AIR(SC) 1975. In support of his contention that in second appeal the findings regarding questions of fact cannot be interfered and therefore, the judgment of the lower appellate court cannot be interfered by this Court in exercise of its jurisdiction under Section 100, C.P.C. he has placed further reliance on the judgment of the High Court of Jharkhand in the case of Deoki Nandan Kejriwal Vs. Gaya Prasad Gond (Sah); Kedar Prasad Gond (Sah), 2006 LawSuit(Jhar) 101 and has relied upon paragraph 6 thereof, which is as follows: 6. In their judgments and the decrees the courts below have held that performance of the contract, execution of the sale deed and in agreement the time was not the essence of the said contract. Gaya Prasad Gond (Sah); Kedar Prasad Gond (Sah), 2006 LawSuit(Jhar) 101 and has relied upon paragraph 6 thereof, which is as follows: 6. In their judgments and the decrees the courts below have held that performance of the contract, execution of the sale deed and in agreement the time was not the essence of the said contract. It has come on record (Exhibit 2 [A]) that the father of the defendants had taken further payment of Rs. 1,000/- on 06.12.1989. The said statement was made before the Land Reforms Deputy Collector in a legal proceeding (Exhibit 3), under Section 4(h) of the Bihar Land Reforms Act, which also goes to show that there was no prescribed period for performance of the contract and for execution of the sale deed. Considering the terms of the contract and other evidences on record, learned trial court as well as the lower appellate court have come to the concurrent finding that the agreement was subsisting and it was not cancelled and that the money taken as advance by the defendants was not forfeited and in that view also both the courts below have held that the suit was not barred by limitation. So far as the payment of court fee is concerned, learned lower appellate court has considered the circumstances inasmuch as there is no denial that the plaintiff/respondents are the members of the Scheduled Tribe. However, in the appeal, which is the continuation of the suit, the appellate court has directed to pay the requisite court fee in the suit only Page 971 because there was no certificate of Legal Aid Committee on record. The judgment and decree of the trial court has been affirmed on merit by the lower appellate court in which the required court fee was paid on the memorandum of the appeal. Both the courts below on thorough appraisal of the facts, evidences and materials on record and on due consideration of factual and legal aspects have concurrently recorded their findings in favour of the plaintiffs-respondents. The said concurrent findings of facts are binding on this second appellate court. The decision cited by learned Counsel are rendered on different facts and are not applicable to the facts of this case. The grounds urged by learned Counsel for the appellants do not give rise to any substantial questions of. law to be formulated and decided in this second appeal. The decision cited by learned Counsel are rendered on different facts and are not applicable to the facts of this case. The grounds urged by learned Counsel for the appellants do not give rise to any substantial questions of. law to be formulated and decided in this second appeal. This appeal is accordingly dismissed." 16. Finally reliance has been placed upon the judgment of the Punjab & Haryana High Court in the case of Rupinder Singh Vs. Sajjan Singh alias Balbir Singh, 2005 LawSuit(P & H) 402. Paragraph 4 of the aforesaid judgment has been relied by the counsel, which is as follows: "4. Having heard the learned Counsel I am of the considered view that no interference in the findings recorded by the two Courts would be warranted. There are categorical findings that defendant-appellant No.1 has executed agreement to sell dated 20.1.194 and the sale-deed was required to be executed on or before 1.3.1994. It has further been proved that defendant-appellant No.1 received a sum of Rs.20,000/- as earnest money as against the total consideration of Rs.91,000/- settled between the parties. In his effort to defeat the right of the plaintiff-respondent, defendant-appellant had executed sale-deed on 15.2.1994 after the institution of the suit in favor of his real sister which has been set aside on the plea of principle of lis pendence contemplated by Section 52 of the Transfer of Property Act, 1882. These are pure findings of facts which would not warrant interference of this Court in exercise of jurisdiction under Section 100 of the Code. No question of law infact has been raised." 17. After hearing the rival submissions and going through the authorities cited, the Court finds that the judgment of the trial court is based on correct appreciation of the evidence on record. A perusal of the statement of the plaintiff, PW-1, shows that he has admitted in his statement that the earlier agreement to sell dated 28.12.1992 was a document of security to secure the loan of Rs.14,000/- advanced by him to the defendant. In his cross examination he has admitted that he never sent any notice for execution of the sale deed in pursuance of the aforesaid agreement. He has further admitted that the amount of Rs.14,000/- was not returned by the defendant to him, but the defendant never asked him to return the agreement to sell to him. In his cross examination he has admitted that he never sent any notice for execution of the sale deed in pursuance of the aforesaid agreement. He has further admitted that the amount of Rs.14,000/- was not returned by the defendant to him, but the defendant never asked him to return the agreement to sell to him. The trial court has considered the statement of the plaintiff while deciding the issue No.1 in the suit and has held that the first agreement dated 28.12.1992 was executed only for securing the loan advanced by the plaintiff to the defendant and therefore, the trial court rightly directed the defendant to return the amount of Rs.14,000/- to the plaintiff with 12% interest. Since from the evidence on record the second agreement to sell dated 28.12.1994 was found to be valid, therefore, the trial court rightly decreed the suit for Specific Performance of Contract of Sale regarding the second agreement dated 28.12.1994. The lower appellate court has presumed that since both the agreements are registered, therefore, the defendant cannot dispute that the first agreement was not executed as an agreement to sell, but was executed as a document securing the loan. The lower appellate court has read between the lines and has recorded the finding that the parties are closely related and there was no need for execution of agreement to sell and only a document securing the loan could have been executed. It has further recorded the finding that there was no need for execution of an agreement to sell the land by the defendant by means of registered document when he only wanted to give security for his loan. The lower appellate court has found that once the document has been executed and registered as an agreement to sell, it cannot be considered to be security document. Lower appellate court has failed to consider the statement of the plaintiff, who himself has admitted that he had got the first agreement dated 28.12.1992 executed only to get the loan given by him to the defendant secured. Lower appellate court has failed to consider the statement of the plaintiff, who himself has admitted that he had got the first agreement dated 28.12.1992 executed only to get the loan given by him to the defendant secured. Once the plaintiff himself admitted that the document dated 28.12.1992 was in fact got executed by the defendant in his favour to secure the loan and this admission was not subsequently explained by him in his statement any further, then the trial court rightly reached the conclusion that in view of the admission of the plaintiff, he is estopped from disputing the document. 18. Reliance of the counsel for the defendant-appellant on the Apex Court's Judgment in support of his contentions on the cases of Tejram (supra) and Union of India (supra) is well founded. 19. The reliance of the learned counsel for the plaintiff-respondent on the judgments in the case of Gurdev Kaur (supra), Deoki Nandan Kejriwal (supra) and Rupinder Singh (supra) is regarding the well settled legal proposition regarding the scope of second appeal under Section 100 of the Code. However, it has been held by the Apex Court that a second appeal can be entertained even on a question of fact provided that the High Court is satisfied that the findings of the court below are vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded are perverse. (Vide: Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604 ; Smt. Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353 ; Satya Gupta (Smt.) @ Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423 ; Ragavendra Kumar v. Firm Prem Machinary & Co., 2000 AIR(SC) 534; Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd., 2000 AIR(SC) 1261; Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., 2010 AIR(SC) 2685; and Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 ). 20. In view of the above consideration the first and third substantial questions of law are decided holding that the trial court has rightly held that the agreement to sell dated 28.12.1992 was not an agreement to sell, but it was a document executed for the purpose of securing loan advanced by the plaintiff to the defendant, but the agreement dated 28.12.1994 was agreement to sell. The second and seventh substantial questions of law are decided holding that relief granted by lower appellate court is not beyond the pleadings and the relief claimed. No arguments have been advanced in this regard by the counsel for the appellant. Substantial questions of law Nos.4, 6 & 8 are decided holding that the lower appellate court has wrongly ignored the admission of plaintiff while fully decreeing the suit of the plaintiff as clear from the judgment of Union of India Vs. Ibrahim Uddin (supra). The findings of trial court are well considered and have not been fully considered by the lower appellate court. Substantial questions of law Nos.5 to 9 are irrelevant and no arguments have been advanced by the parties in this regard. The judgment and decree of the lower appellate court is set aside. 21. Consequently, this second appeal is allowed. No order as to costs.