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2018 DIGILAW 2426 (BOM)

Shripat v. Natthu

2018-10-08

A.S.CHANDURKAR

body2018
JUDGMENT : A.S. Chandurkar, J. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the original defendants who are aggrieved by the declaration granted by the trial Court to the effect that sale-deeds dated 08.06.1977 and 10.05.1991 are illegal. Further relief granted is to restrain the defendants from interfering with the possession of the plaintiffs. That decree has been affirmed by the appellate Court. 2. The facts in brief are that it is the case of the plaintiffs that the plaintiff no.1 was the owner of field Survey No.28/1 which was subsequently renumbered as Survey no.42 admeasuring 1 Hectare 19 R. In the year 1977, the plaintiff no.1 fell ill and he was not able to move around. The plaintiff no.2 who was related to him supported the plaintiff no.1 in his illness. As the plaintiff no.1 was not having sufficient funds, plaintiff no.2 borrowed an amount of Rs. 2,500/- from the defendant no.1. This amount was used for treatment of the plaintiff no.1. After the plaintiff no.1 recovered from his illness, the defendant no.1 sought repayment of aforesaid amount. The plaintiff no.1 however was unable to repay the same and hence the defendant no.1 insisted for execution of a sale-deed in his favour. According to the plaintiffs, there was an oral agreement that the suit property would be re-conveyed in the name of plaintiff no.1 after the loan was fully satisfied by the plaintiff no.1. On that basis, sale-deed dated 08.06.1977 for area admeasuring 2.80 acres came to be executed in favour of defendant no.1. It is the case of the plaintiff no.1 that the possession was never handed over and the sale-deed was executed as security for the money lending transaction. It is further pleaded that substantial amount was repaid to the defendant no.1 and hence in the month of March1985, the plaintiff no.1 sought accounts of the amount repaid. It was found that the plaintiff no.1 had to repay Rs. 500/- after which the defendant no.1 was to re-convey the suit field. As the plaintiff no.1 had to repay the aforesaid amount as well as certain dues were also payable to plaintiff no.2, he executed a sale-deed on 09.04.1985 in favour of plaintiff no.2. Thereafter, the plaintiff no.1 approached the defendant no.1 to repay the amount of Rs. 500/- but the defendant no.1 refused to accept the same. As the plaintiff no.1 had to repay the aforesaid amount as well as certain dues were also payable to plaintiff no.2, he executed a sale-deed on 09.04.1985 in favour of plaintiff no.2. Thereafter, the plaintiff no.1 approached the defendant no.1 to repay the amount of Rs. 500/- but the defendant no.1 refused to accept the same. The defendant no.1 thereafter took steps to enter his name in the revenue records on 21.07.1985 and as the plaintiffs apprehended dispossession, the aforesaid suit came to be filed. The relief sought in the suit was a declaration that sale-deeds dated 08.06.1977 and 10.05.1991 were illegal. Ancillary prayer for permanent injunction was also sought. 3. The defendant no.1 filed his written statement at Exhibit 22. It was pleaded that the sale-deed dated 08.06.1977 was an out and out sale-deed as plaintiff no.1 was in need of money. There was no agreement to re-convey the suit property to the plaintiff no.1. Possession was also delivered on the date of the sale-deed and the defendant no.1 continued to be in possession. It was then pleaded that plaintiff no.2 had purchased a portion of field Survey no.28/1 from the plaintiff no.1 on 29.07.1976 which field was adjacent to the field purchased by defendant no.1. As plaintiff no.2 wanted to purchase the suit field so as to make a compact block, he insisted on execution of such sale-deed on 09.04.1985. It was thus prayed that suit was liable to be dismissed as it was also filed beyond the period of limitation. The defendant no.2 in whose favour the suit property was sold on 10.05.1991 was impleaded as defendant no.2 and he adopted the written statement filed by the defendant no.1. 4. During pendency of the suit, pursis was filed at Exhibit 68 on 12.01.1995 stating therein that the plaintiff no.1 had expired before three years and that he had not left any legal heirs. The other parties led evidence and the trial Court recorded a finding that the transaction on the basis of which sale-deed dated 08.06.1977 was executed was one of money lending and that said sale-deed was executed by way of security for the loan. The trial Court further held that the plaintiffs had failed to prove that they had repaid the loan amount to the defendant no.1. The suit was accordingly decreed. The trial Court further held that the plaintiffs had failed to prove that they had repaid the loan amount to the defendant no.1. The suit was accordingly decreed. The appellate Court on re-appreciating the evidence affirmed those findings and dismissed the appeal. Being aggrieved, the defendants have filed this second appeal. 5. While admitting the second appeal, the following substantial questions of law were framed. (i) Whether the suit without seeking a declaration and relief of specific performance on account of agreement of re-conveyance was maintainable ? (ii) Whether the suit falls under Art. 54 or Art.59 of the Limitation Act ? Thereafter on 05.09.2018, an additional substantial question of law came to be framed. (iii) In the light of the plaint averments that sale-deed dated 08/06/1977 in favour of defendant No.1 was nominal in nature and there was an oral agreement between plaintiff No.1 and defendant No.1 to re-convey the suit property in favour of plaintiff No.1, on the death of plaintiff No.1 and he not being survived by legal heir, whether the suit as a whole abated ? 6. Shri V.V. Bhangde, learned counsel for the appellants, in support of the appeal made following submissions: (a) It was submitted that the suit as filed with simplicitor prayer that sale-deeds dated 08.06.1977 and 10.05.1991 were illegal was not maintainable in view of the fact that according to the plaintiffs there was an agreement of re-conveyance with the defendant no.1. The plaintiff no.1 had offered the balance amount of Rs. 500/- to the defendant no.1 for the purposes of re-conveyance but the said amount was not accepted by the defendant no.1. It was therefore necessary for the plaintiffs to have sought a declaration as well as the relief of specific performance with regard to the agreement of re-conveyance. In absence of any such relief of specific performance having been sought, no relief could have been granted to the plaintiffs. In that regard, learned counsel placed reliance on the decision in N.V. Srinivasa Murthy & Others Versus Mariyamma (Dead) by proposed LRS. & Others, (2005) 5 SCC 548 and submitted that in somewhat similar facts it was held by the Hon'ble Supreme Court that the relief of specific performance was necessary. It was submitted that this vital aspect was not considered by both the Courts. (b) Both the Courts erred in holding that the suit was filed within limitation. & Others, (2005) 5 SCC 548 and submitted that in somewhat similar facts it was held by the Hon'ble Supreme Court that the relief of specific performance was necessary. It was submitted that this vital aspect was not considered by both the Courts. (b) Both the Courts erred in holding that the suit was filed within limitation. According to the learned counsel the relief of specific performance ought to have been sought and on that basis, the suit ought to have been filed within the limitation prescribed by Article 54 of the Limitation Act, 1963. Though the sale-deed in question is executed on 08.06.1977, the suit in question was filed only on 29.07.1985 which was beyond the prescribed period of limitation. On the basis of the plaint averments, it was clear that the relief as sought was barred by limitation. (c) It was then submitted that as per the plaint averments, the sale-deed dated 08.06.1977 in favour of defendant no.1 was a nominal transaction and there was an oral agreement between the plaintiff no.1 and the defendant no.1 to re-convey the suit property in favour of plaintiff no.1. The plaintiff no.1 having expired on 10.08.1991 without leaving any legal heirs, the suit as a whole abated as no relief could be granted with regard to the oral agreement between the plaintiff no.1 and defendant no.1. The case as pleaded in the plaint to have the re-conveyance of the property was personal to the plaintiff no.1 and with his death that right came to an end and it did not survive in favour of plaintiff no.2. Moreover, in the light of the plaint averments, plaintiff no.2 who purchased the property on 09.04.1985 would not get any legal right to prosecute the suit. In that regard, learned counsel placed reliance on the decisions in Phool Rani & Others Versus Sh.Naubat Rai Ahluwalia, (1973) 1 SCC 688 , Motilal Mahavirprasad Sharma & Another Versus Manojkumar Vithalrao Ghiya, (1981) MhLJ 211, Nirav Deepak Modi Versus Najoo Bhiwandiwala & Others, (2015) 1 AllMR 739 and thus submitted that suit itself was liable to be dismissed. He also placed reliance on the decisions in Indu Kakkar Versus Haryana State Industrial Development Corporation Ltd. & Another, (1999) 2 SCC 37 and Heirs of Vrajlal J. Ganatra Versus Heirs of Parshottam S. Shah, (1996) 4 SCC 490 . He also placed reliance on the decisions in Indu Kakkar Versus Haryana State Industrial Development Corporation Ltd. & Another, (1999) 2 SCC 37 and Heirs of Vrajlal J. Ganatra Versus Heirs of Parshottam S. Shah, (1996) 4 SCC 490 . It was thus submitted that the decree as passed in favour of the plaintiffs was unsustainable and same was liable to be set aside. 7. Per contra, Shri R.L. Khapre, learned counsel for the respondents, supported the impugned judgment. In that regard, he made the following submissions: (I) The suit as filed was maintainable in view of the fact that declaration as to the nature of the sale-deed dated 08.06.1977 had been specifically sought. It was the case of the plaintiff no.1 that the said sale-deed was by way of security for a money lending transaction and hence illegal. It was not necessary for the plaintiffs to seek the relief of specific performance of the agreement of re-conveyance especially when the declaration as to the invalidity of the said sale-deed was sought. He submitted that the ratio of the decision in N.V. Srinivasa Murthy & Others in fact supported the case of the plaintiffs. (ii) The suit as filed was within limitation which was rightly found by both the Courts. The cause of action as pleaded indicated that same arose when the defendant no.1 sought to correct the revenue records in the year 1985 and the suit filed immediately thereafter was within limitation. The limitation was governed by Article 59 of the Act of 1963. (iii) It was submitted that the plaintiff no.1 had executed the sale-deed of the property in favour of plaintiff no.2 on 09.04.1985. All rights of the plaintiff no.1 thus stood transferred in favour of plaintiff no.2 which fact was mentioned in the plaint itself. As the plaintiff no.1 was not survived by any legal heir and plaintiff no.2 had got title to the suit property, the suit would not abate on the death of plaintiff no.1. Placing reliance on the decision in Shantilal Thakordas & Others Versus Chimanlal Maganlal Telwala, (1976) 4 SCC 417 , it was submitted that the earlier decision in Phool Rani had been overruled and therefore it could not be said that the suit abated as a whole. Placing reliance on the decision in Shantilal Thakordas & Others Versus Chimanlal Maganlal Telwala, (1976) 4 SCC 417 , it was submitted that the earlier decision in Phool Rani had been overruled and therefore it could not be said that the suit abated as a whole. (iv) It was further submitted that considering the fact that the sale-deed in favour of the defendant no.1 executed on 08.06.1977 was nominal, the suit as filed was rightly decreed. The learned counsel referred to the decisions in Shalinibai Trimbakrao Begde & Others Versus Narayan Harnaji Bhalme & Others, (2006) 6 MhLJ 752 and Bhimbadhar Rout Versus Kuna Senapati & Another, (1995) AIR Orissa 258, in that regard. It was thus submitted that there was no reason to interfere with the findings recorded by both the Courts. 8. I have heard the learned counsel for the parties at length and I have also gone through the records of the case. For considering the first substantial question of law, it would be necessary to refer to the pleadings in the plaint. In paragraph 2 of the plaint, it has been stated that in the year 1977, the plaintiff no.2 on behalf of the plaintiff no.1 borrowed an amount of Rs. 2,500/- from the defendant no.1. After the plaintiff no.1 was medically treated and he recovered from his illness, the defendant no.1 demanded the hand loan from the plaintiff no.1. It is then pleaded in paragraph 3 of the plaint that as the plaintiff no.1 was unable to repay the hand loan, the defendant no.1 insisted on executing the sale-deed of the suit field on an oral agreement that it would be re-conveyed by a sale-deed in favour of the plaintiff no.1 whenever the loan was fully satisfied. On these terms, the plaintiff no.1 executed the sale-deed dated 08.06.1977. It is further pleaded that the same was a money lending transaction and the plaintiff no.1 continued in possession. In paragraph 4 of the plaint, it is pleaded that the plaintiff no.1 in March1985 asked the defendant no.1 about the account of the loan and it was then settled that the plaintiff no.1 had to repay only Rs. 500/- after which the defendant no.1 would have to re-convey the suit field. In paragraph 4 of the plaint, it is pleaded that the plaintiff no.1 in March1985 asked the defendant no.1 about the account of the loan and it was then settled that the plaintiff no.1 had to repay only Rs. 500/- after which the defendant no.1 would have to re-convey the suit field. As the plaintiff no.1 had to repay the loan amount and also to repay the hand loan to plaintiff no.2, he sold the suit field to the plaintiff no.2 on 09.04.1985. In paragraph 6, it is stated that after the suit field was sold, the plaintiff no.1 went to the defendant no.1 to repay the amount of Rs. 500/- but the defendant no.1 refused to accept the same and threatened the plaintiffs that he would take possession. The defendant no.1 then sought to enter his name in the revenue records and that gave a cause of action to the plaintiffs to file the aforesaid suit. In the written statement, the defendant no.1 has pleaded that the transaction in question was not in lieu of any amount lent to the plaintiffs and it was an outright sale. 9. Before the evidence could be recorded the plaintiff no.1 expired. The plaintiff no.2 was examined at Exhibit 69. He has reiterated that after the suit field was sold by plaintiff no.1 to him, plaintiff no.1 had been to the house of plaintiff no.1 for repaying the amount of Rs. 500/- but the defendant no.1 refused to accept the said amount. PW3Wasudeo at Exhibit 74 has stated that the oral agreement of re-conveyance took place in his presence and that the plaintiff no.1 had been to the house of defendant no.1 for repaying that amount of Rs. 500/-. The defendant no.1 in his deposition has denied that the plaintiff no.1 had come to him for repaying the amount of Rs. 500/-. The trial Court had framed an issue being Issue No.3 as to whether the plaintiff no.1 proved that he had repaid the loan amount to the defendant no.1 as alleged. The trial Court answered that issue in the negative by observing that there was no evidence on record to indicate how much amount the plaintiff no.1 had repaid to the defendant no.1. Similarly, the appellate Court framed Point No.2 and answered the same in negative. The trial Court answered that issue in the negative by observing that there was no evidence on record to indicate how much amount the plaintiff no.1 had repaid to the defendant no.1. Similarly, the appellate Court framed Point No.2 and answered the same in negative. From the aforesaid it is clear that it is the specific case pleaded by the plaintiffs that there was an agreement of re-conveyance with the defendant no.1 and on repayment of the amount of Rs. 2,500/-, the suit field would be re-conveyed by the defendant no.1 in favour of the plaintiff no.1. Both the Courts have held that it was proved by the plaintiff no.1 that the defendant no.1 had agreed to re-convey the suit field in favour of plaintiff no.1 after the loan was repaid. However, a finding is recorded by both the Courts that repayment of the entire loan amount has not been duly proved by the plaintiffs. It is in this backdrop that the aspect as to whether the plaintiffs ought to have prayed for the relief of specific performance as to the agreement of re-conveyance has to be considered. 10. It is the specific case of the plaintiff no.1 that as he was suffering from illness, the amount of Rs. 2,500/- was required to be borrowed by the plaintiff no.2 on his behalf for his treatment. It is also the case of the plaintiff no.1 that the defendant no.1 insisted for executing the sale-deed in his favour and there was an oral agreement that the suit field would be re-conveyed by executing a sale-deed in favour of plaintiff no.1 whenever the loan amount was fully satisfied. According to the plaintiff no.1 himself, after the sale-deed dated 09.04.1985 executed by him in favour of plaintiff no.2, he had gone to the defendant no.1 to repay the amount of Rs. 500/- but the same was not accepted by the defendant no.1. The evidence recorded in that behalf is consistent with the aforesaid pleadings. It can thus be seen that according to the plaintiff no.1 in terms of the oral agreement with the defendant no.1 substantial amount of the sum borrowed was repaid and amount of Rs. 500/- was the balance. This amount was not accepted by the defendant no.1. The evidence recorded in that behalf is consistent with the aforesaid pleadings. It can thus be seen that according to the plaintiff no.1 in terms of the oral agreement with the defendant no.1 substantial amount of the sum borrowed was repaid and amount of Rs. 500/- was the balance. This amount was not accepted by the defendant no.1. In other words, though the plaintiff no.1 was ready and willing to perform his part of the oral agreement with the defendant no.1 as a condition for re-conveyance of the suit field in his favour, the defendant no.1 did not accept that offer and thus refused to re-convey the suit field. 11. If this was the specific case of the plaintiff no.1 which was pleaded and evidence in that regard was also brought on record, it is clear that it was necessary for the plaintiff no.1 to have prayed for the relief of specific performance of the oral agreement of re-conveyance. When according to the plaintiff no.1 the execution of the sale-deed dated 08.06.1977 was the outcome of a loan transaction and that the entire amount that was borrowed from the defendant no.1 was repaid, it was necessary for the plaintiff no.1 to prove that despite such repayment, the suit field was not being re-conveyed to him. A mere declaration that the sale-deed dated 08.06.1977 was illegal would not suffice. That sale would be rendered illegal only if it was the case of the plaintiff no.1 that the transaction of sale dated 08.06.1977 was the outcome of a money lending transaction and the same was never intended to transfer title. However, as it was the case of the plaintiff no.1 that there was an oral agreement of re-conveyance, it was necessary for the plaintiff no.1 to have sought the relief of specific performance of the oral agreement of re-conveyance. If that relief would have been granted to the plaintiff no.1, only thereafter would the sale-deed dated 08.06.1977 be rendered illegal. Thus, in absence of the relief of specific performance being sought by the plaintiff no.1, there is no legal reason to simplicitor declare the sale-deed dated 08.06.1977 as well as the subsequent sale-deed dated 10.05.1991 to be illegal only on the ground that the first sale-deed was executed by way of security for the hand loan. Thus, in absence of the relief of specific performance being sought by the plaintiff no.1, there is no legal reason to simplicitor declare the sale-deed dated 08.06.1977 as well as the subsequent sale-deed dated 10.05.1991 to be illegal only on the ground that the first sale-deed was executed by way of security for the hand loan. Admittedly, according to the plaintiff no.1 himself, the entire amount of loan was not repaid as the defendant no.1 had refused to accept the amount of Rs. 500/- that was offered by the plaintiff no.1. It is thus found that both the Courts erred in declaring the sale-deed dated 08.06.1977 to be illegal in the absence of any relief being sought by the plaintiff no.1 as to specific performance of the oral agreement of re-conveyance. 12. The decision in N.V. Sriniwasa Murthy was sought to be relied upon by both the parties. The facts of that case indicate that the father of the plaintiff therein had borrowed an amount of Rs. 2,000/- from the predecessor-in-title of the defendants and in lieu thereof a registered sale-deed was executed alongwith the contemporaneous oral agreement that on return of the borrowed amount with interest, re-conveyance-deed would be executed in favour of the borrower. It was pleaded in the plaint that certain amounts borrowed had been repaid from time to time. Thereafter despite entire outstanding amount having been repaid, the re-conveyance-deed was not executed. In the suit, relief of declaration that the plaintiffs were absolute owners of the suit land coupled with a prayer for permanent injunction was sought. On aforesaid facts, it was held that the foundation of the suit was the initial sale-deed dated 05.05.1953 executed in lieu of loan transaction for securing the amounts borrowed. It was noted that the amount borrowed was fully repaid and there was an oral agreement of re-conveyance. It is in this factual background that the Hon'ble Supreme Court held that on the said averments in the plaint, relief of declaration that sale-deed dated 05.05.1953 to be a loan transaction as well as further relief of specific performance of the oral agreement of re-conveyance of the property ought to have been claimed. It is in this factual background that the Hon'ble Supreme Court held that on the said averments in the plaint, relief of declaration that sale-deed dated 05.05.1953 to be a loan transaction as well as further relief of specific performance of the oral agreement of re-conveyance of the property ought to have been claimed. A mere declaration that the plaintiffs were the absolute owners of the suit fields could not have been claimed without seeking a declaration that the sale-deed executed was on account of a loan transaction and not an outright sale. The cause of action for seeking such declaration and obtaining re-conveyance-deed was the repayment of the entire loan. It is found that in the present case, though a declaration as to the invalidity of sale-deed dated 08.06.1977 has been sought, the subsequent relief of specific performance of the oral agreement of re-conveyance has not been sought. That relief was all the more necessary as according to the plaintiff no.1 though Rs. 500/- as balance loan amount was offered to the defendant no.1, he had refused to accept the same. Re-conveyance was subject to repayment of the entire loan amount. It is thus found that the ratio of this decision supports the contentions of the appellants and not those of the respondents. Substantial question of law at Serial Number (I) is accordingly answered by holding that it was necessary for the plaintiff no.1 to have sought the relief of specific performance of the oral agreement of re-conveyance in the light of the plaint averments and the causes of action as pleaded. 13. As regards the aspect of limitation, in the light of the relief sought in the plaint of a declaration that the sale-deed dated 08.06.1977 being illegal and the cause of action as pleaded to have arisen when the name of defendant no.1 was mutated in the revenue records on 21.07.1985, it is found that the suit would be governed by the provisions of Article 59 of the Act of 1963. The plaintiff no.2 claimed to be in possession pursuant to the sale-deed dated 09.04.1985 and there was no relief of possession of the suit property being prayed for. Instead the relief of permanent injunction so as to restrain the defendants from disturbing the possession of the plaintiffs was sought. The plaintiff no.2 claimed to be in possession pursuant to the sale-deed dated 09.04.1985 and there was no relief of possession of the suit property being prayed for. Instead the relief of permanent injunction so as to restrain the defendants from disturbing the possession of the plaintiffs was sought. It is thus held that in the light of the plaint averments and the relief sought in the suit, the same would fall under Article 59 of the Act of 1963. Even if it is assumed that the plaintiff no.1 ought to have also sought the relief of specific performance of the oral agreement of re-conveyance as averred in the plaint, the balance loan amount of Rs. 500/- was offered to the defendant no.1 after the sale-deed dated 09.04.1985 was executed by the plaintiff no.1 in favour of plaintiff no.2. The suit as filed on 29.07.1985 would be within limitation even if provisions of Article 54 of the Act of 1963 were to be applied. In any event the suit is found to be within limitation. Substantial question of law at Serial Number (II) is answered by holding that in the light of the reliefs claimed in the plaint based on the cause of action as pleaded the suit would fall under Article 59 of the Act of 1963. 14. The question as to abatement of the suit as a whole would have to be considered again in the light of the reliefs sought in the plaint. It can be seen that sale-deed dated 08.06.1977 was executed by plaintiff no.1 in favour of defendant no.1 and it is stated that it was by way of security for the amount advanced to the plaintiff no.1. Thereafter on 09.04.1985, the plaintiff no.1 executed sale-deed of the suit property in favour of plaintiff no.2. As noted above, the plaintiff no.1 expired on 10.08.1991 during pendency of the suit. As per the pursis at Exhibit 68 he did not leave behind any legal heirs and the plaintiff no.2 continued with the suit. Thereafter on 09.04.1985, the plaintiff no.1 executed sale-deed of the suit property in favour of plaintiff no.2. As noted above, the plaintiff no.1 expired on 10.08.1991 during pendency of the suit. As per the pursis at Exhibit 68 he did not leave behind any legal heirs and the plaintiff no.2 continued with the suit. In the light of the relief as prayed for in the plaint as to declaration of sale-deed dated 08.06.1977 to be illegal and considering the fact that it is the case of the plaintiff no.2 that a valid title stands transferred in his favour by virtue of sale-deed dated 09.04.1985, he would be entitled to continue with the suit for seeking the aforesaid declaration as regards invalidity of the sale-deed dated 08.06.1977. It would have been a different matter if the plaintiff no.1 would have sought the relief of specific performance of the oral agreement of re-conveyance entered into with the defendant no.1. In that situation, the effect of abatement of the suit on account of death of plaintiff no.1 would have assumed importance. The aspect of abatement would again have to be considered in the light of the reliefs sought in the plaint. In that view of the matter, the contentions in that regard sought to be raised by the appellants by relying upon the decisions in Motilal Mahavirprasad Sharma & Another and Nirav Deepak Modi do not assist said submissions. It is rightly pointed out on behalf of the respondents that the decision in Phool Rani stands overruled by the subsequent decision in Shantilal Thakordas & Others. Substantial question of law at Serial Number (III) is answered by holding that in the light of the reliefs sought in the suit, the suit did not abate as a whole on the death of plaintiff no.1 and his legal heirs not being brought on record. 15. In the light of the answer given to the substantial question of law at Serial Number (I) that it was necessary for the plaintiff no.1 to have sought the relief of specific performance of the oral agreement of re-conveyance and that relief not having been sought, the suit is liable to be dismissed. 15. In the light of the answer given to the substantial question of law at Serial Number (I) that it was necessary for the plaintiff no.1 to have sought the relief of specific performance of the oral agreement of re-conveyance and that relief not having been sought, the suit is liable to be dismissed. Accordingly, the judgment in Regular Civil Suit No.153 of 1985 (Old) [Regular Civil Suit No.18 of 1989 (New)], dated 06.02.1996 as well as the judgment in Regular Civil Appeal No.372 of 1996, dated 18.10.2004 are quashed and set aside. Regular Civil Suit No.153 of 1985 (Old) [Regular Civil Suit No.18 of 1989 (New)] stands dismissed leaving the parties to bear their own costs. 16. Second Appeal No.82 of 2005 is thus allowed with no order as to costs.