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2019 DIGILAW 2378 (MAD)

Sakunthala v. K. Ganesan

2019-09-13

C.V.KARTHIKEYAN

body2019
JUDGMENT : (Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree passed in A.S.No. 1 of 2011 dated 23.12.2014 on the file of the Court of II Additional District Judge, Chidambaram confirming the Judgment and Decree passed in O.S.No.125 of 2003 dated 18.01.2006 on the file of the Court of Subordinate Judge, Chidambaram.) 1. The legal representatives of the deceased defendant in O.S.No.125 of 2003 on the file of the Sub Court, Chidambaram, are the appellants herein. 2. O.S.No. 125 of 2003 had been filed by the plaintiff K.Ganesan against the defendant S.Narayanaswamy, seeking specific performance of an agreement of sale dated 18.11.1992 and in default for the Court to execute the sale deed and for a further direction against the defendant to deliver possession of the suit properties free from any obstruction and for costs of the suit. 3. By Judgment dated 18.01.2006, the suit was decreed. The defendant then filed A.S.No. 1 of 2011 before the II Additional District Court, Chidambaram. Pending the Appeal, he died and his legal representatives, namely, his widow and daughter were brought on record. By Judgment dated 23.12.2014, the appeal was dismissed and the Judgment and Decree of the trial Court in O.S.No. 125 of 2003 was confirmed. 4. Aggrieved by the said Judgment, the legal representatives of the defendant then filed the present Second Appeal. 5. The Second Appeal had been admitted on 25.06.2015 on the following substantial questions of law:- “a. Whether the Courts below erred in law in not applying the first limb of the Article 54 of the Limitation Act when Ex.A-1 stipulates six months time for performance of contract?; b. When the plaintiff had filed another suit for specific performance against the defendant in the year 1993, whether the Courts below erred in law in holding that the plaintiff was ready and willing to perform his part of contract for more than a decade in the absence of any demand in writing?; c. Whether the findings of the Courts below with regard to limitation and readiness and willingness are perverse?.” O.S.No.125 of 2003 (Sub Court, Chidambaram): 6. The plaintiff K.Ganesan claimed that the defendant S.Narayanaswamy had agreed on 18.11.1992 to sell the suit properties situated at C.Kothangudi Village, Chidambaram Taluk, measuring 1.92 acres for a total consideration of Rs.2,92,000/-. The agreement was also registered. The plaintiff K.Ganesan claimed that the defendant S.Narayanaswamy had agreed on 18.11.1992 to sell the suit properties situated at C.Kothangudi Village, Chidambaram Taluk, measuring 1.92 acres for a total consideration of Rs.2,92,000/-. The agreement was also registered. An advance of Rs.10,000/- was paid. The balance was to be paid within a period of six months and should be paid at the time of registration of the sale deed. The registration copy of the agreement of sale was filed along with the plaint. It was also stated that at the time of the agreement of sale, the defendant had represented that he has absolute title to the suit properties by virtue of an agreement of sale in his favour dated 10.11.1986 which was between himself and the then owners of the suit properties, namely, Natarajan and his younger brother, minor Sivakumar. It was further claimed that the defendant was to get the sale deed executed in his favour by them within a period of six months after the said minor Sivakumar attained the age of majority. It was stated that subsequently, the time fixed in the suit agreement was extended. The defendant had stated that there was a delay in getting the sale deed executed in his favour by Natarajan and Sivakumar and stated that it would take some more time. It was also stated that incidentally on the same day, namely, 18.11.1992, the defendant had also entered into another registered agreement of sale with the plaintiff with respect to other properties measuring 3.35½ acres for a consideration of Rs.5,10,000/-. It was also stated that with respect to that agreement, the plaintiff herein had filed O.S.No. 106 of 1993 on the file of the Sub Court, Chidambaram and after contest, the suit was decreed. It was further stated that the defendant herein had given evidence in that suit admitting existence of the present agreement of sale and that he was also to execute the sale deed in favour of the plaintiff. 7. The plaintiff further claimed that he had always been ready and willing to perform his part of the agreement. It was further stated that the defendant herein had given evidence in that suit admitting existence of the present agreement of sale and that he was also to execute the sale deed in favour of the plaintiff. 7. The plaintiff further claimed that he had always been ready and willing to perform his part of the agreement. It was stated that in April 2003, the plaintiff came to know that the defendant had already purchased the property from Natarajan and Sivakumar on 16.11.1998 and the sale deed had also been registered in the name of the plaintiff on 13.06.2001 after completion of formalities under Section 47(A) of the Indian Stamp Act. The plaintiff then demanded the defendant to execute a sale deed in accordance with the agreement dated 18.11.1992. Since the defendant evaded, notice dated 01.07.2003 was issued. The defendant sent a reply on 13.07.2003. It was stated by the plaintiff that the defendant had stated a false case by introducing a third party, Suthakar Real Estate, Cuddalore. However, the plaintiff filed the present case within the period of limitation from the date of knowledge of the execution of the sale deed in favour of the defendant by Natarajan and Sivakumar. It was further stated that though the agreement of sale was for lands for measuring 1.92 acres, the sale deed in favour of the defendant dated 16.11.1998 showed that the defendant had purchased only 1.55½ cents. The plaintiff had therefore proportionately reduced the sale consideration from Rs.2,92,000/- to Rs.2,36,500/-. The plaintiff adjusted the advance amount of Rs.10,000/-. He further claimed that he was ready and willing to pay the balance sale consideration. It was under these circumstances that the suit had been filed seeking specific performance of the agreement of sale dated 18.11.1992. 8. In his written statement, the defendant denied each and every averment. He stated that the properties originally belonged to Ammani, w/o Meenakshi Sundaram Pillai of Thanjavur. She had executed a registered settlement deed on 31.08.1981 settling the properties in favour of her grandsons, Natarajan and Sivakumar. Natarajan, on attaining the age of majority had sold the western half of by the properties, by sale deed dated 18.07.1985. It was stated that Sivakumar had attained majority during the year 1991. It was further stated that M/s.Suthakar Real Estate, also tried to enter into the property and interfere with the peaceful possession of the defendant. Natarajan, on attaining the age of majority had sold the western half of by the properties, by sale deed dated 18.07.1985. It was stated that Sivakumar had attained majority during the year 1991. It was further stated that M/s.Suthakar Real Estate, also tried to enter into the property and interfere with the peaceful possession of the defendant. Consequently, the defendant had filed a suit against Natarajan and his minor brother Sivakumar represented their guardian/mother Meenakshi Ammal and also against M/s. Suthakar Real Estate. The suit was decreed on 28.02.1996. The defendant further claimed that he never represented to the plaintiff that he would get a sale deed executed in his favour within a period of six months. It was stated that long prior to 18.11.1992, Sivakumar had attained the age of majority. This fact was well known to the plaintiff. It was further stated that thereafter the defendant had purchased the total area 1.55½ acres from Natarajan and Sivakumar by registered sale deed dated 16.11.1998 which was also presented for registration on 19.11.1999. There were proceedings under Section 47A of the Indian Stamp Act. It was stated that the suit was a gross abuse since it was hopelessly barred by limitation. The defendant therefore stated that the suit should be dismissed. 9. The defendant thereafter filed an additional written statement claiming that on the date of agreement of sale, namely, 18.11.1992, he was not the owner of the property and had no power to execute any sale deed. It was stated that the suit should be dismissed. 10. On the strength of the above pleadings, the learned Sub Judge framed the following issues for trial:- “(1) Whether the plaintiff is entitled to specific performance of the sale agreement as prayed for?; (2) Whether the sale agreement was sham and nominal and is therefore in valid?; (3) Whether the suit is barred by time?; and (4) To what other relief is the plaintiff entitled to?” 11. The plaintiff and the defendant were then invited to adduce evidence. Accordingly, the plaintiff examined himself as PW-1 and examined another witness Kanagasabai as PW-2. The defendant Narayanaswamy examined himself as DW-1. During trial, the plaintiff marked Exs.A-1 to A-11. Ex.A-1 was the agreement of sale between the plaintiff and the defendant. Ex.A-4 dated 16.11.1998 was the registration copy of the sale deed in favour of the defendant. Accordingly, the plaintiff examined himself as PW-1 and examined another witness Kanagasabai as PW-2. The defendant Narayanaswamy examined himself as DW-1. During trial, the plaintiff marked Exs.A-1 to A-11. Ex.A-1 was the agreement of sale between the plaintiff and the defendant. Ex.A-4 dated 16.11.1998 was the registration copy of the sale deed in favour of the defendant. Exs.A-7 to A-11 were the marked portions in the deposition of the defendant in the earlier suit in O.S.No. 106 of 1993. The defendant marked Exs. B-1 to B-5. Ex.B-1 was the settlement deed executed by Ammani in favour of her minor grandsons Natarajan and Sivakumar. Ex.B-2 dated 10.11.1986 was the agreement executed between Natarajan and others with the defendant. 12. On appreciation of the oral and documentary evidence, the learned Sub Judge held that the defendant had actually signed Ex.A-1 agreement for sale and had admitted while deposing evidence in O.S.No. 106 of 1993 to the present agreement. The relevant portions of that evidence were also marked as Exs.A-7 to A-11. The learned Sub Judge held that in view of the admissions, Ex.A-1 was a validly executed agreement. The learned Sub Judge also found against the defendant in that he admitted to the other agreement of sale also dated 18.11.1992 with respect to the remaining portion of the land but had denied the present agreement of sale. It was also observed that the defendant had not purchased the suit property within the period of six months as stipulated in the agreement. It was also stated that the suit was within the period of limitation since it had been filed within three years from date of knowledge of refusal. It was also found that the agreement of sale was neither sham nor nominal and that it was valid and binding upon the defendant. It was finally held that the defendant was bound to perform his part of the agreement. Finally, the suit was decreed. A.S.No. 1 of 2011 (II Additional District Court, Chidambaram): 13. Aggrieved by the said Judgment, the defendant then filed the said First Appeal. Pending the First Appeal, the defendant died and his legal representatives were brought on record. The learned II Additional District Judge also concurred with the findings of the trial Court with respect to the finding that the agreement was valid and binding on the appellant/defendant and that it cannot be rejected as being sham and nominal. Pending the First Appeal, the defendant died and his legal representatives were brought on record. The learned II Additional District Judge also concurred with the findings of the trial Court with respect to the finding that the agreement was valid and binding on the appellant/defendant and that it cannot be rejected as being sham and nominal. It was also held that the suit was not barred by limitation since the respondent/plaintiff had knowledge of the sale in favour of the appellant only in year 2003 and immediately thereafter had filed the suit. It was therefore stated that the second limb of Article 54 of the limitation Act which stipulates that the period of limitation was three years, from the date of refusal would come into play. The learned II Additional District Judge also held that time cannot be the essence of the contract. It was also found that the suit had been filed within three years from the date of knowledge of refusal and consequently, the appeal was dismissed and Judgment of the Trial Court was confirmed. S.A.No. 423 of 2015: 14. Aggrieved with the above Judgment, the legal representatives of the defendant then filed the present Second Appeal. The Second Appeal had been admitted on the following three substantial questions of Law:- “a. Whether the Courts below erred in law in not applying the first limb of the Article 54 of the Limitation Act when Ex.A-1 stipulates six months time for performance of contract?; b. When the plaintiff had filed another suit for specific performance against the defendant in the year 1993, whether the Courts below erred in law in holding that the plaintiff was ready and willing to perform his part of contract for more than a decade in the absence of any demand in writing?; c. Whether the findings of the Courts below with regard to limitation and readiness and willingness are perverse?.” 15. Heard arguments advanced by Mrs. Chitra Sampath, learned Senior Counsel for Mr.M.Kamalahasan, learned counsel for the appellants and Mr. S.Parthasarathy, learned Senior counsel for Mr.R.Bharat Kumar, learned Counsel for the respondent. 16. Mrs. Chitra Sampath, learned Senior Counsel took the Court through the facts of the case. Heard arguments advanced by Mrs. Chitra Sampath, learned Senior Counsel for Mr.M.Kamalahasan, learned counsel for the appellants and Mr. S.Parthasarathy, learned Senior counsel for Mr.R.Bharat Kumar, learned Counsel for the respondent. 16. Mrs. Chitra Sampath, learned Senior Counsel took the Court through the facts of the case. She pointed out that the plaintiff and defendant in the suit had entered into two separate agreements of sale on the same date on 18.11.1992 with respect to two separate portions measuring 3 acres and 35½ cents and 1 acre and 92 cents respectively of the same larger piece of land. With respect to enforcing the specific performance of the agreement relating to 3 acres and 35½ cents, the agreement holder K.Ganesan had filed O.S.No. 106 of 1993 on the file of the Sub Court, Chidambaram and after contest, the suit was decreed by Judgment dated 22.07.1998. However with respect to the other agreement of sale, which is the subject matter of the present Second Appeal, and which related to 1 acre and 92 cents, the suit was instituted only in the year 2003 in O.S.No. 125 of 2003 seeking specific performance, not of 1 acre 92 cents, but of 1 acre and 55½ cents. It was stated that in the agreement of sale, the total consideration was fixed at Rs.2,92,000/- for 1 acre and 92 cents. That consideration was reduced proportionately to Rs.2,26,500/- by the plaintiff while instituting the suit. The learned Senior Counsel pointed out that the consideration had not been agreed in terms of value per square feet, or per cent, or per acre and consequently, instituting the suit by refixing the consideration unilaterally itself was a ground to reject specific performance since this was not contemplated under the terms of the agreement. The learned Senior Counsel further pointed out that the agreement itself contained a clause to perform the agreement within a period of six months from the date of the agreement. The advance amount paid was only Rs.10,000/-. The defendant, who had agreed to convey the land did not have title on the date of the agreement of sale. He was only an agreement holder. The properties stood in the name of Natarajan, s/o. T.M.Nagarajan and his younger minor brother Sivakumar, who was represented by their mother Meenakshi Ammal. The advance amount paid was only Rs.10,000/-. The defendant, who had agreed to convey the land did not have title on the date of the agreement of sale. He was only an agreement holder. The properties stood in the name of Natarajan, s/o. T.M.Nagarajan and his younger minor brother Sivakumar, who was represented by their mother Meenakshi Ammal. The learned Senior Counsel stated that since a time limit was given to perform the agreement, the first limb of Article 54 of the Limitation Act should be applied, which specified that a suit should be instituted within a period of three years from the date fixed for performance of the agreement. The learned Senior Counsel was insistent that the suit was barred by limitation. 17. It was also pointed out that from the date of the agreement till 01.07.2003, the plaintiff K.Ganesan had neither sought specific performance nor had claimed that he was ready and willing to pay the balance sale consideration and to perform his part of the agreement. It was therefore pointed out by the learned Senior Counsel that the suit should fail not only on the ground of being barred by the law of limitation but also on the ground that the plaintiff was never ready and willing to perform his part of the agreement. The learned Senior Counsel pointed out that even if recourse is taken to the second limb of Article 54 of the Limitation Act, then the defendant Narayanasamy had acquired title to the suit property on 16.11.1998 and the suit not having been filed even within three years from that date, the suit was barred by limitation. The learned Senior Counsel stated that reliance placed by both the Courts below on a purported admission by the defendant during his evidence, O.S.No. 106 of 1993 was misplaced and that admission, can, at the most be used for the fact that an agreement was entered into between the parties, but can never be stretched to explain the circumstances surrounding the second agreement. It was pointed out that the circumstances surrounding the agreement indicated there was an attempt by a third party real estate agent, namely, Suthakar Real Estate to force the aforesaid Natarajan and his brother Sivakumar, to convey the property and to ward off such threat, the suit agreement had been entered into. It was pointed out that the circumstances surrounding the agreement indicated there was an attempt by a third party real estate agent, namely, Suthakar Real Estate to force the aforesaid Natarajan and his brother Sivakumar, to convey the property and to ward off such threat, the suit agreement had been entered into. It was therefore pointed out that the agreement was only a sham and nominal one and was never meant to be acted upon. The learned Senior Counsel in this regard, placed reliance on the Supreme Court Judgment reported in 1977 AIR 1712 [Sita Ram Bhau Patil Vs. Ramachandra Nago Patil] for the proposition relating to Section 17 of the Indian Evidence Act, namely, admission of any fact in issue or of relevant fact. The learned Senior Counsel also relied on Civil Appeal No. 7363 of 2000 [State of Rajasthan & Ors. Vs. Shiv Dayal and another] dated 14.08.2019 with respect to the scope of Section 100 Cr.P.C., and insisted that even in the Second Appeal stage, this Court can reexamine and re-appreciate the evidence both oral and documentary. The learned Senior Counsel stated that the appellants were entitled to point out that the findings on fact were bad in law since they were based on no evidence and on misreading of material documentary evidence. The learned Senior Counsel therefore stated that the Appeal should be allowed and the suit in O.S.No.125 of 2003 on the file of the Sub Court, Chidambaram, should be dismissed. 18. Mr.S.Parthasarathy, learned Senior Counsel for the respondent seriously disputed and challenged the arguments so advanced. According to him, both the Courts below had given a specific finding of fact as regards the execution of the agreement dated 18.11.1992 between the parties on the basis that the defendant in the suit whom the appellants represent as legal representatives had categorically admitted during his evidence in the parallel suit between the two parties in O.S.No. 106 of 1993 before the Sub Court, Chidambaram that the present agreement dated 18.11.1992 had infact been executed and entered upon into by him and that though he had no title on that date, he had agreed to convey the property after obtaining title from Natarajan and his brother Sivakumar. The learned Senior Counsel stated that though a sale deed had been registered in the name of the defendant on 16.11.1998, the respondent herein had no notice of the same and constructive notice was known only in April/May 2003. The document was actually registered only after the formalities under Section 47-A of the Stamp Act were completed. The learned Senior Counsel stated that the sale stood completed only on its registration and therefore stated that immediately when it only came to the knowledge of the respondent, he had initiated steps by issuing an Advocate's notice and then filing the suit within a few months thereafter. The learned Senior Counsel therefore stated that the second limb of Article 54 alone would apply which provided for institution of a suit within a period of three years from the date of notice of refusal by the vendor. The learned Senior Counsel further stated that though the agreement had been entered into for sale of 1.92 acres, the available lands on the date of institution of the suit were only 1.55 ½ acres and therefore, the sale consideration was also proportionately readjusted and the learned Senior Counsel stated that this was perfectly justifiable. It was also pointed out by the learned Senior Counsel that since both the Courts below had returned a definite finding of fact that the defendant in the suit had admitted that an agreement had been entered into and that he was under obligation to execute the sale deed within a period of six months from the date he actually obtained title, unless those findings on fact were held to be perverse, this Court in Second Appeal cannot re-appreciate the said facts, even if two views are possible. The learned Senior Counsel also stated that the conduct of the defendant must also be examined since, though he had obtained a sale deed on 16.11.1998, he had not informed the respondent herein and the fact that the agreement was kept pending under Section 47A of the Stamp Act was a relevant fact for determining the period of limitation since only on registration did the defendant acquire marketable title. The learned Senior Counsel relied on (2005) 12 SCC 764 [S.Brahmanand and Others Vs. K.R.Muthugopal (died) and Others], for the principles under Article 54 of the Limitation Act. The learned Senior Counsel also relied on 2019 SCC OnLine SC 907 [R.Lakshmikantham Vs. The learned Senior Counsel relied on (2005) 12 SCC 764 [S.Brahmanand and Others Vs. K.R.Muthugopal (died) and Others], for the principles under Article 54 of the Limitation Act. The learned Senior Counsel also relied on 2019 SCC OnLine SC 907 [R.Lakshmikantham Vs. Devaraji] for the proposition that the rule of equity does not apply and so long as the suit for specific performance was filed within the period of limitation, delay cannot be put against the plaintiff. The learned counsel also relied on (2017) 13 SCC 705 [ Dagadabai (dead) by legal representatives Vs. Abbas Alias Gulab Rustum Pinjari], with respect to the scope of Section 100 Civil Procedure Code and pointed out that unless perversity is found, concurrent findings on facts were binding at the Second Appellate stage. The learned Senior Counsel also relied on (2015) 1 SCC 705 [Zarina Siddiqui Vs. A.Ramalingam] wherein the Supreme Court had observed that when a defendant suppressed material facts and made distorted statements to mislead the Court, discretion cannot be exercised in favour of the defendant by refusing to grant specific performance. 19. The learned Senior Counsel was emphatic in his submission that the appeal had no merits and should be dismissed. 20. I have carefully considered the arguments advanced. 21. The respondent K.Ganesan and S.Narayanaswamy, whom the appellants represent in their capacity as legal representatives had entered into an agreement of sale Ex.A-1, on 18.11.1992. This agreement was registered as Document No. 3022 of 1992 in the Office of the Registrar, Chidambaram. The agreement was with respect to 1.92 acres of nanja land in C.Kothangudi Village, Chidambaram Taluk in R.S.No. 73/1 to an extent of 0.79 acres, R.S.No. 76/6 to an extent of 0.15 acres, R.s.No. 74/5B to an extent of 0.28 acres, R.S.No. 76/7 to an extent of 0.02 half acres, R.S.No.110/2 to an extent of 0.34 and 1½ acres and R.S.No. 70/1 to an extent of 0.33 acres. Each one of the said lands were part of larger extent in the very same Resurvey numbers. The remaining portion measured 3.35 ½ acres. Both the parties, namely, K.Ganesan and S.Narayanaswamy had also entered into a separate agreement of sale with respect to the said 3.35 ½ cents of land on the very same day, namely, 18.11.1992. That agreement of sale had not been produced as evidence. The remaining portion measured 3.35 ½ acres. Both the parties, namely, K.Ganesan and S.Narayanaswamy had also entered into a separate agreement of sale with respect to the said 3.35 ½ cents of land on the very same day, namely, 18.11.1992. That agreement of sale had not been produced as evidence. However in that agreement, S.Narayanaswamy had entered into the said agreement in his capacity as title holder of the 3.35 ½ acres of land. At this juncture, it must be mentioned that the entire lands covered under the two agreements of sale originally belonged to one Ammani, w/o. Meenakshi Sundaram Pillai of Mayiladuthurai. She had settled, by way of registered settlement deed dated 31.08.1981, the entire area in favour her minor grand sons Natarajan and Sivakumar. Since the settlees were both minors, they were represented by their mother Meenakshi Ammal. Natarajan, on attaining the age of majority sold the western half of the entire area of land to S.Narayanaswamy by a registered sale deed dated 08.07.1985, and also put him in possession. Subsequently, on 10.11.1986, S.Narayanaswamy entered into an agreement of sale with respect to the remaining portion of lands measuring 1.92 acres with the said Natarajan and his younger brother, minor Sivakumar, who was represented by his mother and guardian Meenakshi Ammal. S.Narayanaswamy was also put in possession of the said lands. That agreement of sale was for a total consideration of Rs.46,000/- and an advance of Rs.44,000/- had been paid. That agreement of sale had been produced as Ex.B-2. The settlement deed executed by Ammani Ammal dated 31.08.1981 was produced as Ex.B-1. It is thus seen that by the two agreements of sale, both dated 18.11.1992 S.Narayanaswamy had agreed to convey the western half for which he had clear title to K.Ganesan and also the eastern half which is the subject matter of the present litigation for which he was only an agreement holder to K.Ganesan. With respect to the lands for which he had absolute title, seeking specific performance, K.Ganesan filed O.S.No. 106 of 1993 before the Sub Court, Chidambaram. Trial was conducted and evidence was adduced by the parties. On appreciation of the evidence, the suit was decreed by Judgment dated 22.07.1998. The certified copy of the Judgment had been produced as Ex.A-2 and the certified copy of the decree was produced as Ex.A-3. Trial was conducted and evidence was adduced by the parties. On appreciation of the evidence, the suit was decreed by Judgment dated 22.07.1998. The certified copy of the Judgment had been produced as Ex.A-2 and the certified copy of the decree was produced as Ex.A-3. In the meanwhile, S.Narayanaswamy had instituted O.S.No. 208 of 1991 against Natarajan and Sivakumar and a third party, Suthakar Real Estates represented by partner G.Jagadesan Reddiyar. That suit was filed on the strength of the earlier agreement of sale dated 10.11.1986 in his favour, Ex.B-2 entered into by Natarajan and Sivakumar represented by his mother Meenakshi Ammal. The defendants remained ex-parte and a decree followed on 28.02.1996. Parallelly the trial in O.S.No. 106 of 1993 also took place. In that suit, in his capacity as defendant, S.Narayanaswamy tendered evidence as DW-1. In that case, questions were also put to him regarding the agreement of sale entered into by him with the plaintiff K.Ganesan with respect to the eastern part of the property in question. He admitted to the agreement. He also stated that he had not conveyed the property under the said agreement, since Natarajan and Sivakumar had not conveyed the property to him. He also stated that the agreement stipulated that he should convey the property within six months from the date of acquiring title to the property. 22. The relevant portion of the evidence of S.Narayanaswamy in the previously instituted suit in O.S.No. 106 of 1993 had been marked as Exs.A-7 to A-11 in the present case. Both the Courts below placed strong reliance on Exs. A-7 to A-11 and held that the said admission was binding on S.Narayanaswamy, to the extent that he had admitted that there was an agreement dated 18.11.1992, that he had no title over the property, that he must obtain title from Natarajan and Sivakumar and that within six months thereafter, he must perform his part of the agreement dated 18.11.1986. Both the Courts therefore held that Ex.A-1 the agreement dated 18.11.1992 was neither sham nor nominal. Both the Courts below held that it was enforceable. Since this is a conclusive finding on fact, it only follows that unless such finding is found to be perverse or based on no evidence, the said findings are binding on this Court. Both the Courts therefore held that Ex.A-1 the agreement dated 18.11.1992 was neither sham nor nominal. Both the Courts below held that it was enforceable. Since this is a conclusive finding on fact, it only follows that unless such finding is found to be perverse or based on no evidence, the said findings are binding on this Court. In this connection, the learned Senior Counsel for the appellants had relied on the judgment of the Hon'ble Supreme Court in Civil Appeal No. 7363 of 2000 [ State of Rajasthan & Ors. Vs. Shiv Dayal and another] dated 14.08.2019 wherein the Hon'ble Supreme Court had held as follows:- “16. It is not the principle of law that where the High Court finds that there is a concurrent finding of two Courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal. 17. True it is as has been laid down by this Court in several decisions that “concurrent finding of fact” is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”). However, this rule of law is subject to certain well known exceptions mentioned infra. 18. It is a trite law that in order to record any finding on the facts, the Trial Court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. 19. Similarly, it is also a trite law that the Appellate Court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the Trial Court or reverse it. 20. If the Appellate Court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called "reversing finding". These expressions are well known in the legal parlance. 21. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J.- as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43). 22. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.” (Emphasis supplied) 23. Mr.S.Parthasarathy, learned Senior Counsel for the respondent however relied on 2017 13 SCC 705 [Dagadabai (dead) Vs. Abbas Alias Gulab Rustum Pinjari] wherein the Hon'ble Supreme Court had held as follows:- “(13) First, when the Trial Court and the First Appellate Court concurrently decreed the plaintiff's suit by recording all the findings of facts against the defendant enumerated above, then, in our opinion, such findings of facts were binding on the High Court. It is also for additional reasons that the findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to the extent that no average judicial person could ever record. In this view of the matter, we are of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant.” (Emphasis supplied) 24. A conjoint reading of both the Judgments indicate that concurrent findings on facts recorded by the Trial Court and the First Appellate Court are binding on the High Court while examining a Second Appeal under Section 100 CPC. However if those findings were perverse or not based on the pleadings of the parties or based on no evidence or based on misreading of documentary evidence or was recorded against any provision of law or was one which no Judge acting judicially could reasonably have reached, such findings can once again be re-examined in Second Appeal under Section 100 CPC by the High Court. 25. 25. In the instant case, the admission of S.Narayanasamy that there was an agreement entered into between him and the respondent herein K.Ganesan on 18.11.1992 is sufficient evidence to hold that the agreement was entered into between the two parties. That agreement is Ex.A-1. 26. As stated above it is an registered agreement. The said agreement has to be read in its plain language. It was an agreement of sale for the schedule mentioned property, namely 1.92 acre of nanja land for a total consideration of Rs.2,92,000/- for which an advance of Rs.10,000/- had been paid on the date of the agreement, namely, 18.11.1992. It had been specifically stated in the said agreement that S.Narayanaswamy who had agreed to convey the property, had entered into an earlier agreement of sale and pursuant to such agreement of sale had also taken possession of the suit properties. That earlier agreement of sale was dated 10.11.1986 and it was with Natarajan son of T.M.Nagarajan and his younger brother, minor Sivakumar, represented by his guardian and mother Meenakshi Ammal. 27. It is thus seen that on the date of the agreement, Ex.A-1, S.Narayanasamy was not the title holder of the lands in question. The agreement thereafter stated that the balance sale consideration of Rs.2,82,000/- should be paid within a period of six months and a sale deed must be executed by S.Narayanasamy either in the name of K.Ganesan or in the name of his nominee. 28. The terms of this agreement has to be compared with the pleadings in the suit particularly the plaint. In the plaint, it had been stated that on the date of the agreement, S.Narayanasamy had represented that he had absolute right to the suit properties by virtue of the agreement dated 10.11.1986 and that he would get a sale deed registered in his name by Natarajan and his minor brother Sivakumar within a period of six months after the said minor Sivakumar attained the age of majority and since it was specifically mentioned that he would get the sale deed within a period of six months, in the agreement, it had been mentioned that the agreement should be performed within a period of six months. It had been further stated in the plaint that the time of six months fixed in the agreement was extended. It had been further stated in the plaint that the time of six months fixed in the agreement was extended. It was further stated that S.Narayanasamy had represented that there was a delay in getting a sale deed executed in his favour by Natarajan and Sivakumar and that it would take some more time and that he would inform the plaintiff K.Ganesan and thereafter, within a period of six months, the sale deed would be executed by him. 29. It has to be pointed out that K.Ganesan has stretched the pleadings in the plaint for beyond the terms of the agreement. In the first place, the agreement, Ex.A-1, was no such endorsement that the time had been extended. The date of such extension has not even been given as the cause of action for the suit. In the second place there was no covenant in Ex.A1 that S.Narayanaswamy would convey the property after obtaining sale deed from Natarajan and Sivakumar. It was only stated that he would perform his part of the agreement within a period of six months. That the time had been extended is stated by K.Ganesan, the plaintiff, by placing reliance on the admission made by S.Narayanasamy in the earlier suit between them. The admission in Ex.A-7 was that S.Narayanasamy had admitted that there was an agreement with respect to the suit property for a sum of Rs.2,92,000/-. In Ex.A-8, the evidence was that he had paid a sum of Rs.44,000/- as advance to Natarajan and family. In Ex.A-9 he had stated that since Sivakumar was a minor and agreement had been entered into with a minor, it was orally agreed that the sale deed would be executed only after he attains the age of majority. In Ex.A-10, he had further stated that only after that sale in his favour, would be perform the agreement entered into by him with the respondent, K.Ganesan. He further stated that till the date of that deposition, the property had not been conveyed to him by Natarajan and Sivakumar. 30. Both the Courts below had interpreted Exs.A-7 to A-10 as a clear admission of the existence of a fact namely, an agreement Ex.A-1. That finding is not perverse. It is based on evidence. However, the inference is the existence of a contingent agreement. 30. Both the Courts below had interpreted Exs.A-7 to A-10 as a clear admission of the existence of a fact namely, an agreement Ex.A-1. That finding is not perverse. It is based on evidence. However, the inference is the existence of a contingent agreement. That it was a contingent agreement is not evident on the face of the agreement, but can be based on the plaint averments, the basis for which has not been pleaded by the plaintiff. 31. The substantial question of law which had been framed was whether the suit instituted nearly 11 years from the date of agreement was barred by limitation. Article 54 of the Limitation Act is as follows:- Description of suitPeriod of limitation Time from which period begins to run 54. For specific performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. 32. In 2009 5 SCC 462 [Ahmmadsahab Abdul Mulla (Dead) vs Bibijan & Ors], a reference was made before the Hon'ble Supreme Court whether the use of the expression “date” in Article 54 of the schedule to the Limitation Act 1963 is suggestive of a specific date in the calendar. In paragraph 4, the Hon'ble Supreme Court observed as follows:- “4. Some of the High Courts took the view that the force of the word `fixed' implies that the date should be fixed definitely and should not be left to be gathered from the surrounding circumstances of the case. Some other High Courts, however, took a different view. There are two decisions of this Court i.e. Ramzan v. Hussaini ( 1990 (1) SCC 104 ) and Tarlok Singh v. Vijay Kumar Sabharwal ( 1996 (8) SCC 367 ). ” [Emphasis supplied] 33. The Hon'ble Supreme Court had answered the reference as follows:- “6. Article 54 of the Schedule to the Act reads as follows: .............................................................................................................. Description of suit-Period of limitation Time from which period begins to run For specific performance of a contract. Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.” 7. Learned counsel for the appellants submitted that purposive interpretation has to be given to the expression “the date fixed”. 8. Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.” 7. Learned counsel for the appellants submitted that purposive interpretation has to be given to the expression “the date fixed”. 8. The judgments in Ramzan [ (1990) 1 SCC 104 ] and Tarlok Singh [ (1996) 8 SCC 367 ] cases were rendered in a different factual scenario and the discussions do not throw much light on the controversy at hand. 9. According to Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn., 2005, the word “date” means as follows: “Date.—(As a noun) The point of time at which a transaction or event takes place; time given or specified; time in some way ascertained and fixed; in a deed, that part of the deed or writing which expresses the day of the month and year in which it was made, (2 Bl. Commn. 304 Tomlin). In Bement & Dougherty v. Trenton Locomotive, etc., Co. [32 NJ Law 513] (NJ Law at p. 515) it is said: ‘The primary signification of the word date, is not time in the abstract, nor time taken absolutely but, as its derivation plainly indicates, time given or specified time in some way ascertained and fixed; this is the sense in which the word is commonly used. When we speak of the date of a deed, we do not mean the time when it was actually executed but the time of its execution, as given or stated in the deed itself.’ ‘Where a deed bears no date, or an impossible date, and in the deed reference is made to the “date”, that word must be construed “delivery”; but if the deed bears a sensible date, the word “date”, occurring in the deed, means the day of the date, and not that of the delivery’ (Elph. 123, citing Styles v. Wardle [(1825) 4 B & C 908 : 107 ER 1297] ; …). ‘Date’, though sometimes used as the shortened form of ‘day of the date’, is not its synonym; but means the particular time on which an instrument is given, executed, or delivered (Howard case 2 Salkeld 625: 91 ER 528: 1 Ld Raym 480: 91 ER 1219] ; Armitt v. Breame [(1704) 2 Ld Raym 1076: 92 ER 213] and Pewtress v. Annan [(1841) 9 Dowl 828], Dowl at pp. 834-35). 834-35). … ‘The word “date” is much more commonly descriptive of a day than of any smaller division of time’ (per Stormonth Darling, L.O., Simpson v. Marshall [37 Sc LR 316]). Date means day, so that where a cover note providing for temporary insurance of a motor car expires ‘15 days after date of commencement’ it runs for the full 15 days after the day on which it was to commence (Cartwright v. MacCormack [ (1963) 1 WLR 18 : (1963) 1 All ER 11 (CA)] ).” 10. “Fixed” in essence means having final or crystallised form or character not subject to change or fluctuation. 11. The inevitable conclusion is that the expression “date fixed for the performance” is a crystallised notion. This is clear from the fact that the second part “time from which period begins to run” refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on “when the plaintiff has notice that performance is refused”. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. 12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression “date” used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits. 13. The reference is disposed of accordingly. ” [Emphasis supplied] 34. The first substantial question of law framed for consideration in the instant case is whether the Courts below erred in not applying first limb of Article 54 of the Limitation Act when Ex.A-1 stipulated six months time for performance off the contract. 13. The reference is disposed of accordingly. ” [Emphasis supplied] 34. The first substantial question of law framed for consideration in the instant case is whether the Courts below erred in not applying first limb of Article 54 of the Limitation Act when Ex.A-1 stipulated six months time for performance off the contract. As stated above, the expression date in the first limb of Article 54 has been explained by the Supreme Court to refer to a specific date and in the instant case since no specific date had been given, I hold with respect to the first substantial question of law that the Courts below had not erred in law in not applying the first limb of Article 54 of the Limitation Act. 35. The second substantial question of law relates to whether the Courts below had erred in law in holding that the plaintiff was ready and willing to perform his part of the contract for more than a decade in the absence of any demand in writing. The Courts below had held that since the suit was within the period of limitation, and since the plaintiff had filed the suit within three years from the date of knowledge of the sale deed being registered in the name of S.Narayanasamy, readiness and willingness is to be presumed. This finding is based on no evidence and has to be interfered with. 36. The following dates would assist in examining the issue in question:- (i) 10.11.1986 - Ex.B-2 agreement of sale executed by Natarajan and his minor brother Sivakumar in favour of S.Narayanasamy; (ii) 18.11.1992 - agreement of sale Ex.A-1 executed by S.Narayanasamy in favour of K.Ganesan; (iii) 16.11.1998 - date of execution of sale deed Ex.A-4 by Natarajan and his brother Sivakumar in favour of S.Narayanasamy; (iv) 19.11.1998 - date of presentation of the sale deed for registration; (v) 13.06.2001 - sale deed was registered after completion of the formalities under Section 47-A of the Indian Stamp Act 1899; (vi) April/May 2003 – date of knowledge by K.Ganesan of the registration of sale deed ; (vii) 01.07.2003 - K.Ganesan issued notice, Ex.A-5 demanding specific performance of the agreement Ex.A-1; (viii) 13.07.2003 reply notice Ex.A-6 issued by the counsel for Narayanasamy. 37. 37. In Ex.B-2 the agreement of sale dated 10.11.1986 entered into between S.Narayanasamy and Natarajan and the younger brother of Natarajan, Sivakumar represented by mother Meenakshi Ammal, the age of the minor Sivakumar was given as 14 years. By any mathematical calculation, Sivakumar must have attained the age of 18 years on 10.11.990 at the latest. In Ex.A-1 the agreement of sale dated 18.11.1992 which agreement is the subject matter of the suit from which the present Second Appeal has emanated, the age of Sivakumar was again given as 14 years. This is just not possible. It is actually improbable. Sivakumar could not have been aged 14 years both in 1986 and in 1992. If he was aged 14 year in the year 1986 then he would have definitely attained the age of majority as on 18.11.1992. Categorising him as a minor itself shows that the respondent/plaintiff Ganesan had not taken necessary care which was required of him. It must be kept in mind that this fact has to be read in jutopation with the averment of the defendant Narayanasamy that the agreement was actually entered into only to ward off the threat from Suthakar Real Estates. Consequently, even though in Exs. A-7 to A-11, the agreement had been admitted, it is clear that the agreement did not disclose the true and correct surrounding circumstances. 38. It is seen that after Ex.A-1 there has been a pregnant silence on the part of the respondent/plaintiff K.Ganesan for more than a decase till the year 2003. It is also seen that under the agreement, he had paid just Rs.10,000/- as advance out of the total consideration of Rs.2,92,000/-. In Exs. A-7 to A-11 to also, no questions were actually put regrading the age of Sivakumar. He was already a major on the date of the agreement under Ex.A-1. Consequently, the assertion that the property can be conveyed only after he becomes a major is not a correct assertion and that probability could not have arisen for consideration at all. 39. Section 13 of the Specific Relief Act is as follows:- “13. Rights of purchaser or lessee against person with no title or imperfect title. Consequently, the assertion that the property can be conveyed only after he becomes a major is not a correct assertion and that probability could not have arisen for consideration at all. 39. Section 13 of the Specific Relief Act is as follows:- “13. Rights of purchaser or lessee against person with no title or imperfect title. - (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:— (a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest; (b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance; (c) ........ (d) .......... (2) ----.” [Emphasis supplied] 40. The respondent K.Ganesan had not exercised his rights to compel Narayanasamy, to execute the sale deed or has also not called upon the actual title holder Natarajan and Sivakumar to validate the title. He had a right to compel them to convey title. That right should have been exercised once he realised that Sivakumar was actually not a minor, but had attained the age of majority even on the date of Ex.A-1. As the agreement holder, the onus was on him to compel execution of the sale deed. Having not taken that step leads one to the inference that though an agreement had entered into, it had not been entered into in good faith or with intention to convey the property. The stray portions marked as Exs. A-7 to A-11 would never come to the rescue of the respondent K.Ganesan since the evidence in entirety had not been marked in the first instance and thereafter the necessary portions had been marked as Exihibits. Stray sentences here and there cannot be used as conclusive admission of any fact. The stray portions marked as Exs. A-7 to A-11 would never come to the rescue of the respondent K.Ganesan since the evidence in entirety had not been marked in the first instance and thereafter the necessary portions had been marked as Exihibits. Stray sentences here and there cannot be used as conclusive admission of any fact. The conduct of the respondent K.Ganesan in not even issuing a notice from the date of the agreement for more than 10 years again leads one to the inference that he was never ready and willing to purchase the property. Readiness and willingness must be exhibited from the date of the agreement till the date of execution of the sale deed. It must also be borne in mind that parallelly another litigation was ongoing between the parties and when that is the case, more care was expected from the respondent K.Ganesan if he had intention to perform his part of the agreement. 41. Section 41 of the Transfer of Property Act is as follows:- “41. Transfer by ostensible owner.—Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.” [Emphasis Supplied] 42. Again if S.Narayanasamy is to be taken as ostensible owner, then the transferee K.Ganesan should have taken reasonable care to ensure that Narayanaswamy had authority to convey and he, K.Ganesan, must act in good faith. The element of good faith on the part of K.Ganesan is absent in the present case primarily because S.Narayanaswamy K.Ganesan stated that title could not be transfered owing to the fact that Sivakumar was a minor when actually he had attained the age of majority atleast in the year 1990 itself and definitely by the year 1992. 43. The plaint has proceeded on the ground that the property could not be conveyed since Natarajan and Sivakumar had not conveyed the property to S.Narayanaswamy. But that contingency had not been specifically mentioned in Ex.A-1. 43. The plaint has proceeded on the ground that the property could not be conveyed since Natarajan and Sivakumar had not conveyed the property to S.Narayanaswamy. But that contingency had not been specifically mentioned in Ex.A-1. Ex.A-1 does not refer to the fact that Narayanasamy should obtain a sale deed from Natarajan and Sivakumar and thereafter convey the property to K.Ganesan. In the absence of such specific terms in the agreement, the pleadings cannot extend the terms of the agreement. It is also seen from the facts that the parties also resided in the same area and were also engaged in a parallel suit. S.Narayanasamy had obtained title by virtue of sale deed in his favour, Ex.A-4 dated 16.11.1998 Section 47 of the Registration Act is as follows:- “47. Time from which registered document operates.—A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.” [Emphasis supplied] 44. It is clear that title had passed to S.Narayanaswamy in the year 1998 itself. The fact that the document was kept pending by the Registrar Office under Section 47-A of the Indian Stamp Act, is an issue between the registration authorities and the parties to the document with respect to payment of Stamp Duty alone and not with respect to the payment of consideration or with respect to the date of conveyance of the property. It was claimed by the learned Senior Counsel Mr.S.Parthasarathy that the respondent K.Ganesan was not aware of the said sale. But it had also not been established as to how in April/May 2003 K.Ganesan suddenly became aware of the sale in favour of S.Narayanasamy. There is no evidence at all on that aspect. 45. The conduct of the respondent K.Ganesan in not even issuing a notice from the date of the agreement clearly shows that he was never ready and never willing to purchase the property. There is also no specific finding by both the Courts regarding readiness and willingness. There is no evidence that there was an oral demand also. They presumed that K.Ganesan was ready and willing to purchase the property. That finding is perverse and based on no evidence and has to be interfered with. There is also no specific finding by both the Courts regarding readiness and willingness. There is no evidence that there was an oral demand also. They presumed that K.Ganesan was ready and willing to purchase the property. That finding is perverse and based on no evidence and has to be interfered with. Consequently with respect to the second substantial question of law, I hold that both the Courts below have erred in holding that the plaintiff was ready and willing to perform his part of contract. 46. With respect to third substantial question of law, I hold that though the first limb Article 54 of the Limitation Act is not attracted, the suit is barred by law of limitation under second limb Article 54 of the Limitation Act since S.Narayanaswamy had clearly issued notice of refusal to perform his part of the agreement after purchasing property by sale deed dated 16.11.1998 by not informing the purchase to K.Ganesan and not coming forward to convey the property to K.Ganesan. The specific date as required in the second limb of Article 54 of the Limitation Act is 16.11.1998. I am not able to convince myself regarding the truthfulness of the statement in the plaint that K.Ganesan came to know only in April/May 2003 about the registration of sale deed in favour of S.Narayanaswamy. The crucial words are, as pointed out by the Hon'ble Supreme Court in Ahmmadsahab Abdul Mullah referred supra, “Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record.” Here K.Ganesan had not pleaded to a specific date of knowledge. It must be kept in mind that is also date of refusal and not just date of notice. Here the date of refusal is 16.11.1998. K.Ganesan had not given any specific date of notice of refusal. I hold that he should have taken more care and acted in good faith. He had deliberately extended the date of such notice to April/May 2003 waiting till the formalities under Section 47A were completed. There are no pleadings and no evidence adduced as to how and when exactly he had notice of refusal by S.Narayanaswamy to perform his part of the agreement. He had deliberately extended the date of such notice to April/May 2003 waiting till the formalities under Section 47A were completed. There are no pleadings and no evidence adduced as to how and when exactly he had notice of refusal by S.Narayanaswamy to perform his part of the agreement. Further the findings of the Court below with respect to readiness and willingness are also perverse as there is no evidence at all on that ground. The third substantial question is answered that the findings of the Courts below on both the issues of readiness and willingness and on limitation are perverse. 47. In view of the above findings, I hold that the Judgment and Decree of both the Courts below have to be set side and are accordingly set aside. The Second Appeal is allowed with costs. The Judgment and Decree of the Trial Court in O.S.No.125 of 2003 dated 18.01.2006 and the Judgment and Decree of the First Appellate Court in A.S.No. 1 of 2011 dated 23.12.2014 are both set aside. Second Appeal is allowed with costs. Consequently, connected Miscellaneous Petitions are closed.