Bhagawan, since dead by his LRs. and Others vs Dwarakanath and Others

S.B. Majage, J.—Whether a purchaser of property could be said to have deemed or constructive notice of the right of a person in

possession of it or a portion of it and whether relief of specific performance be refused in such a case to that person claiming earlier right over the

property, are the short points on which the result of this appeal depends.

Brief facts, giving rise to the present appeal, are:

(a) The appellant - plaintiff (hereinafter referred as ''plaintiff) brought suit in O.S.No. 40/90 before the Civil Judge Court at Hubli against

respondents defendants (hereinafter referred as defendants) for specific performance of contract of sale by registered sale deed stating that on

21.06.1989, the defendants 1 to 3 have entered into an agreement of sale in his favour after receiving Rs. 35,000/- out of consideration of Rs.

80,000/- with regard to suit property, portion of which shown as EFGH (in the plaint sketch filed with the plaint) is in his possession as a tenant,

though defendant Nos. 4 to 6 had thrown out his belongings from the portion marked as ABCD (in the sketch) in his possession, when he was out

of Hubli on 10.03.1990, after the suit property was purchased in the name of defendant No. 5 under registered sale deed from defendants 1 to 3 -

owners inspite of having had knowledge of said agreement of sale in his favour and as such he is entitled to declaration that the sale deed made in

favour of defendant No. 3 is null and void and not binding on him and also for possession of ABCD and IJKL portions shown in the sketch along

with specific performance by execution of registered sale deed by defendants.

(b) According to defendants 1 to 3, they did not enter into any agreement of sale with plaintiff nor they received any amount from him, but he was

collecting rent from other tenants. When he pleaded that those tenants are not giving rent and want power of attorney, having had confidence in the

plaintiff, they signed blank stamp paper brought to Bombay, which has been later converted by him into an agreement of sale by misusing the

confidence, and denied agreement of sale and also the alleged dispossession from ABCD portion by them. They admit execution of a registered

sale deed in favour of defendant No. 5 after receiving Rs. 83,000 as sale consideration and plead defendant No. 5''s possession over the suit

property other than EFGH portion in occupation of the plaintiff as a tenant and consequently, prayed to dismiss the suit.

(c) It is the case of defendants 4 to 6 that defendant No. 5 has purchased the suit property from defendants 1 to 3 for valuable consideration and

he is in possession of the same except EFGH portion in possession of plaintiff, for which H.R.C. proceedings have been initiated but, the plaintiff,

with malafide desire not to vacate said EFGH portion, has come forward with alleged agreement of sale, not executed by defendants 1 to 3. At

any rate, according to them, as the defendant No. 5 is a bonafide purchaser for value without notice of the agreement of sale alleged, the plaintiff is

not entitled to any relief claimed. Hence, they also requested to dismiss the suit of Plaintiff.

(d) The plaintiff examined himself and 4 witnesses in support of his case. None was examined for defendants 1 to 3. However, power of attorney

holder of defendant No. 5 was examined as D.W. 1 besides one more witness for defendants 4 to 6. After hearing and considering the evidence

adduced, the Trial Court decided following issue Nos. 5 to 11, additional issue Nos. 1 and 2 in favour, issue Nos. 2 and 3 against whereas, issue

Nos. 1 and 5 partly in favour and against the plaintiff and decreed the suit of the plaintiff-1. Whether the plaintiff prove that he is tenant of the two

premises marked by letters ABCD & EFGH?

Whether plaintiff proves his forceful dispossession from ABCD portion on 10.3.1990, when he had allegedly gone to Dandeli as contended in

para 9 of the plaint?

Whether plaintiff proves that the possession of the defts 4 to 6 over IJKL is illegal and unauthorised?

Whether plaintiff proves that sale agreement dated 21.6.89 in respect of suit property allegedly executed by deft No. 1 to 3 and payment of Rs.

35,000/ - to them towards part payment and that he is a owner purchased of the suit property?

Whether the sale transaction and sale deed dated 24-2-1990 is not binding on plif and that it is illegal?

Whether plaintiff is tenant in possession of EFGH portion in the hands of deft No. 5?

Whether the plaintiff proves that he is always ready and willing to perform his part of the agreement, in getting the sale deed executed from deft

1 to 3?

Whether defts are entitled to compensatory costs as prayed?

Whether Court fee paid is not proper?

Whether plaintiff is entitled to the relief claimed?

What order or decree? Addl. Issue No. 1:

Whether the plaintiff is entitled for alternative relief of return of Rs. 35,000/- from the defendants?

Addl. Issue No. 2:

Whether deft No. 5 proves that the bonafide purchaser without notice for valuable consideration?

(e) Challenging the said judgment and decree of the Trial Court, defendants 1 to 3 preferred R.A.No. 28/96 whereas, defendants 4 to 6 filed

R.A.No. 65/95 before the Court of First Additional District Judge, Dharward, which had raised following points for determination:

(1) Whether plaintiff has proved that defendants 1 to 3 entered into an agreement of sale on 21-6- 1989 in respect of the schedule property and

he is entitled for its specific performance?

(2) Whether defendants 4 to 6 have proved that defendant No. 5 has purchased the schedule property from defendants 1 to 3 for bonafide value

and consideration and without notice of agreement of sale?

(3) Alternatively, whether plaintiff is entitled for return of the earnest money Rs. 35,000/- with 24% interest?

(4) Whether defendants 1 to 3 have proved that the plaintiff has taken the agreement of sale by playing fraud and misrepresentation?

(5) Whether the judgment and decree under appeals call for any interference?

(f) Though the Trial Court held that defendant No. 5 is not a bonafide purchaser without notice and the plaintiff is entitled to the relief of specific

performance, the first Appellate Court, while considering the points raised by it, held the defendant No. 5 as a bonafide purchaser without notice

and refused the relief of specific performance to the plaintiff but ordered for refund of the earnest money of Rs. 35,000 to plaintiff by defendants 1

to 3 jointly and severally with interest @ Rs. 12% per annum from 21.06.1989 and accordingly, disposed of both the appeals. It is against the said

judgment and decree passed by the first Appellate Court, the plaintiff is before this Court.

Heard both sides. It was vehemently argued for the plaintiff that the purchase of suit property by defendant No. 5 could be said to be with

constructive notice of the plaintiff''s earlier agreement of sale dated 21.06.1989 executed by defendant Nos. 1 to 3 and hence, the first Appellate

Court was wrong in holding otherwise and refusing specific performance granted by the Trial Court. On the other hand, the learned Counsel for

defendant Nos. 4 and 5 has supported the impugned judgment and decree. Perused the record.

At the time of admitting the appeal, following substantial questions of law have been raised by this Court:

(a) When the defendants No. 4 to 6 had constructive notice in respect of the agreement of sale Ex. P.1 as defined under explanation II Section 3

of the Transfer of Property Act, the Trial Court after following the Judgment in A.I.R 1983 Kar. 93 has rightly held that the defendants No. 4 to 6

are not bonafide purchasers, whether the learned Judge without following the principles laid down in Smt. Shobha Sadanand Ramanakatti Vs. Smt.

Vasantibai and others, is right in modifying the judgment and decree of the Trial Court, instead of confirming the same?

(b) When the Trial Court has exercised its discretion reasonable and in a judicial manner and thereby decreed the suit as prayed for, whether the

lower Appellate Court without following the principles laid down by the Hon''ble Supreme Court in Uttar Pradesh Co-operative Federation Ltd.

Vs. Sunder Brothers of Delhi, is right in modifying the judgment and decree of the Trial Court?

Point No. 1 At the outset, it may be noted that both the Courts below have held that the plaintiff has proved agreement of sale in his favour by

defendants 1 to 3 - admitted previous owners of the suit property and that out of consideration of Rs. 80,000, they have received Rs. 35,000 on

21.06.1989. These are concurrent findings of facts.

Neither the defendants 1 to 3 nor defendants 4 to 6 have filed any appeal challenging said or any of the said findings of fact and as such, they

have attained finality. So, they do not require to be reconsidered afresh. It is only the plaintiff, who has come up in appeal before this Court

challenging the finding of the Appellate Court that the sale in favour of defendant No. 5 was without notice of agreement of sale. These facts cannot

be ignored while considering the points raised.

Admittedly, defendant Nos. 1 to 3 - previous admitted owners, were not in actual possession of suit property. Their tenants, including the

plaintiff, were in possession of it. The plaintiff is still in possession of a portion of suit property (EFGH portion) since last more than 38 years.

Knowing it fully well, the defendant No. 5 still purchased the suit property from the defendant Nos. 1 to 3 though, of course, after purchase,

defendant No. 5 has taken possession from other tenants by initiating proceedings.

It is the case of defendants 1 to 3 that the plaintiff used to collect rent from other tenants in the suit property and give it to them. Plaintiff also

pleaded so specifically. The defendants 4 to 6 have not denied it.

Further, it is an admitted fact that the defendant Nos. 4 to 6 reside at a distance of about 5 feet only from the suit property. But, there is clear

evidence that neither the defendant No. 5 had made any enquiry with the plaintiff nor the plaintiff told defendant No. 5 at any time earlier to

registered sale deed that he acquired further right under the agreement of sale. In fact, P.W. 1 - plaintiff himself has stated in his cross- examination

that the defendant No. 5 does not know the execution of Ex. P.1 (agreement of sale). So also, the son of plaintiff, examined as P.W.2, has

deposed that except his family members, the transaction (agreement of sale) was not known to anyone.

So, it was argued for the defendants that the Appellate Court was right in holding that the defendant No. 5 had no notice of the plaintiff''s

agreement of sale entered into by defendants 1 to 3. So, according to him, it was not necessary for defendant No. 5 to enquire with plaintiff and

relied on a decision of Gauhati High Court in the case of Abdul Mazid Vs. Burhanuddin Ahmed and Others, wherein, it is held as under:

42 .......A person interested to purchase, is not bound to go from door to door to know whether the property was true. It would be sufficient if he

knew about the property from the record.......

As against said argument, it was submitted by the learned Counsel for the plaintiff that when the defendant No. 5 resides at a distance of about

5 feet from the suit property and knew very well the plaintiff''s possession over a portion of the suit property as a tenant since last more than 38

years, he should have approached the plaintiff to enquire the nature of possession of plaintiff and since that was not done admittedly, it could be

taken that the defendant No. 5 had constructive notice of the agreement of sale in favour of plaintiff in view of Explanation II to Section 3 of the

Transfer of Property Act. According to him, this could be said even though defendant No. 5 had not made any enquiry with the plaintiff nor the

plaintiff had informed defendant No. 5 about the agreement of sale.

So, the question that falls for consideration is, whether in such a situation, the defendant No. 5 could be taken to have had constructive notice

or not?

According to Section 3 of T.P. Act:

A person is said to have notice'' of a fact when he actually knows that fact, or when but for wilful abstention from an inquiry or search which he

ought to have made, or gross negligence, he would have known it.

And Explanation II appended to it says:

Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of

any person who is for the time being in actual possession thereof.

Notice could be actual or constructive or deemed or implied. However, from the definition of the expression ""a person is said to have notice

in Section 3 of the Transfer of Property Act, it is plain that the word ""notice"" is of wider import than the word ""knowledge"". A person may not

have actual knowledge of a fact but he may have notice of it having regard to the aforementioned definition and Explanation II thereto. If the

purchaser rely upon the assertion of the vendor or on his own knowledge and abstain from making inquiry into the real nature of the possession of

a tenant, he cannot escape from the consequences of the deemed notice under Explanation II to Section 3 of the Transfer of Property Act. In view

of the said Explanation II, a statutory presumption of notice arises against any person, who acquires any immovable property or any share or

interest of the title, if any, of the person who is for the time being in actual possession thereof. This view finds support from the decision of the

Supreme Court in the case of Ram Niwas (Dead) Through Lrs. Vs. Smt. Bano and Others, wherein the purchasers were held to have deemed

notice.

Recently, in the case of R. K. Mohammed Ubaidullah and Others Vs. Hajee C. Abdul Wahab (D) By Lrs. and Others, the Supreme Court

has held thus.

One of the circumstances that was held against the subsequent purchasers was that the parties were residents or had shops in the same vicinity

and it was not probable that the subsequent purchasers would not have come to know of the execution of the agreement..........

In view of what is stated above, it is clear that the defendants 2 to 5 were not bonafide purchasers for value without prior notice of the original

contract and that they were required to make inquiry as to the nature of possession or title or further interest if any of the plaintiff over the suit

property at the time when they entered into sale transaction notwithstanding they were already aware that the plaintiff was in possession of the

property as the tenant. What is material is the inquiry at the time when subsequent sale transaction was entered into.

It may be noted that the principle of constructive notice of any title which a tenant in actual possession may have, was laid down long back

before more than a century by lord Chancellor -Eldon in the case of DANIELS v. DAVISON (1809) 16 VES 249 : 33 ER 978 5 as under:

Where there is a tenant in possession under a lease, or an agreement, a person purchasing part of the estate must be bound to inquire on what

terms that person is in possession...... that a tenant being in possession under a lease, with an agreement in his pocket to become the purchaser

those circumstances altogether give him an equity repealing the claim of a subsequent purchaser who made no inquiry as to the nature of his

possession

In the case of MOHAMMAD ASLAM KHAN AND ORS. v. FEROZE SHAH AIR 1932 PC 228 even the privy counsel has held thus:

........ their Lordships upon consideration of the whole evidence, both verbal and documentary, are clearly of opinion that the circumstances

connected with Mohammad Afzal''s dealings with his property, which were undoubtedly known to the appellants, were such as to put the

appellants upon inquiry, and that if reasonable inquiries had been made by the appellants before the transaction of 3rd April 1922 they must have

become aware of the agreement between the plaintiff and Mohammad Afzal of 1st May 1921. The appellants therefore cannot predicate of

themselves that they are transferees without notice of the original contract within the meaning of the exception in Section 27(b), Specific Relief Act

of 1877.

In the case of Parvathathammal Vs. Sivasankara Bhattar and Others, Madras High Court has held as follows:

I do not consider that a prospective purchaser can be held to have made the sort of enquiry he should if he does not pursue the matter further.

When a person other than the vendor is in actual possession of the property it behoves a prospective purchaser to ascertain what all rights the

person in actual possession really has in respect of the property. And if he omits to do so and if equities exist in favour of the person in possession

the prospective purchaser would be bound by them.

When similar question came up for consideration before Patna High Court in the case of Ramkrishna Singh Vs. Mahadei Haluai and Another,

it held thus;

Admittedly defendant No. 1 was in actual possession of the property when the plaintiff purchased it from defendant No. 2. He will, therefore, be

deemed to have notice of the title, if any, of defendant No. 1.

Reference can also be had to another decision of Madras High Court in the case of Veeramalai Vanniar (Died) and Others Vs. Thadikara

Vanniar and Others, wherein, it is held that:

Even if the defendants had no actual notice or knowledge of the agreement of sale, they must be deemed to have had constructive notice or

knowledge of the agreement of sale, they must be deemed to have had constructive notice or knowledge on the admitted facts of the case........

So also, in the case of Mahadeo Keshav Lingarkar and Another Vs. Shamrao Balwant Kesarker, it is held thus:

........ As the plaintiff admittedly failed to make any enquiry in respect of the rights of the defendants in the said house, it must be held that he had

notice of the contract or part performance thereof; and hence, in my opinion, the learned District Judge erred in law in holding that the proviso to

Section 53-A was attracted in this case.

In the case of Asharam and Another Vs. Bhanwarlal, Rajasthan High Court also held thus;

In the present case, the subsequent transferee, plaintiff No. 2, must be taken to have implied notice of the agreement dated 18.6.1948 and of the

part performance thereof because he would have had actual notice as to the title of the defendant but for his wilful abstention from an enquiry at the

time of purchasing the property which was admittedly in possession of the defendant.

Similarly in the case of Murlidhar Bapuji Valve Vs. Yallappa Lalu Chaugule since deceased by his heirs and representatives Sundrabai Lalu

Chaugule and others, a learned Single Judge of Bombay High Court has held as follows:

20........ Having regard to proved facts of the case, I hold that constructive notice of the suit agreement shall have to be imputed to defendant No.

3 in view of actual possession of the suit lands being with the plaintiff since 14th February, 1966...

The cumulative effect of said decisions is that, whenever possession of a property is in the hands of a tenant, the intended purchaser must make

enquiry with that tenant to ascertain the nature of possession. It may be mentioned here that Explanation-II was introduced into the Transfer of

Property Act by the Amending Act 21 of 1929. Of course, even prior to that amendment also, the law, as declared in decided cases, was that,

when a person purchased property from the owner knowing that it is in the possession of another, he is under a duty to inquire into the nature of

that possession and in the absence of such inquiry, knowledge of title under which possession is held should be attributed to the purchaser.

In view of the above and defendant No. 5''s admitted knowledge of the longstanding possession of the plaintiff over a portion of the suit

property as a tenant, the defendant No. 5 was held to have had constructive notice of the agreement of sale executed by defendant Nos. 1 to 3 in

favour of plaintiff.

In fact, another learned Single Judge of this Court has also taken the same view in the case of Smt. Shobha Sadanand Ramanakatti Vs. Smt.

Vasantibai and others, But, the principles laid down in the said decision had not been followed by the Appellate Court, may be on account of not

bringing said decision to its notice. Be that as it may, the view taken by the first Appellate Court which finds support from a solitary decision of

Gowhati High Court in the case of Abdul Mazid (supra) relied on for the defendant Nos. 4 and 5, is not at all correct and proper.

So, the finding of the first Appellate Court that defendant No. 5 was a bonafide purchaser without notice, cannot be sustained. Accordingly,

Point No. 1 is answered in favour of the plaintiff

Point No. 2: The first Appellate Court had refused the relief of specific performance only on the ground that defendant No. 5 had no notice of

the agreement of sale made in favour of plaintiff. When that finding is reversed, there remains nothing to refuse relief of specific performance to the

plaintiff.

Even otherwise also, Section 19(b) of the Specific Relief Act is in the following terms:

Relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by this Chapter, specific

performance of a contract may be enforced against -

(a).........

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in

good faith and without notice of the original contract;

(c) - (e)............

Section 19 provides the categories of persons against whom specific performance of a contract may be enforced. Among them is included,

under Clause (b), any transferee claiming under the vendor by a title arising subsequently to the contract of which specific performance is sought.

However, a transferee for value, who has paid his money in good faith and without notice of the original contract, is excluded from the purview of

the said clause. To fall within the excluded class, a transferee must show that:

(a) he has purchased for value the property (which is the subject-matter of the suit for specific performance of the contract);

(b) he has paid his money to the vendor in good faith; and

(c) he had no notice of the earlier contract for sale (specific performance of which is sought to be enforced against him).

Said provision is based on the principle of English law which fixes priority between a legal right and an equitable right. If ''A'' purchases any

property from ''B'' and thereafter ''B'' sells the same to ''C'' the sale in favour of ''A'', being prior in time, prevails over the sale in favour of ''C'' as

both ''A'' and ''C'' acquired legal rights. But where one is a legal right and the other is an equitable right.

a bona fide purchaser for value consideration who obtains a legal estate at the time of his purchase without notice of a prior equitable right is

entitled to priority in equity as well as at law"". (Snell''s Equity - 13th Edn., p.48.)

This principle is embodied in Section 19(b) of the Specific Relief Act. But, this does not protect the defendant No. 5, who was held to have had

constructive notice of plaintiffs agreement of sale.

However, the learned Counsel for defendants-4 and 5 vehemently argued that to grant or refuse the relief of specific performance is within the

discretion of the Court and as such, when the defendant No. 5 had taken possession of the suit property from other tenants except the portion in

possession of plaintiff, it may not be proper nor equitable to reverse the finding of the first Appellate Court and grant relief to the plaintiff, refused

by the Trial Court. In that connection, he relied on the decisions of the Supreme Court in the cases of V. Muthusami by Lrs. Vs. Angammal and

Others, , Jagan Nath Vs. Jagdish Rai and Others, , Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and others, , Kanshi Ram

Vs. Om Prakash Jawal and others, and also a decision of our High Court in the case of Ramachandraiah Vs. Nagappa Naidu, .

There can be no two opinions that it is within the discretion of the Court either to grant or refuse the relief of specific performance to a party;

but such discretion has to be exercised judiciously and not otherwise. Keeping this in mind, what has been held in the said decisions, requires to be

considered.

In the case of V. MUTHUSAMI (supra), JAGAN NATH (supra) and LOURDU MARI DAVID (supra), there was concurrent finding by the

Courts that the purchaser had no notice of the earlier agreement of sale. Not only that, in the first case, it was found that after purchase; purchasers

were in possession of the suit property by investing a considerable sum for improvement. That apart, on the facts of that case, the Supreme Court

was of the opinion that a decree for specific relief of contract would involve hardship on the purchasers and no hardship would be caused to the

plaintiff therein, who could have been compensated by a decree of compensation. In the case of KANSHI RAM (supra), there was no subsequent

purchaser and the question of purchase with or without notice of an earlier agreement of sale was not involved. So, said decisions have no

application to the present case.

In the case on hand, the defendant No. 5 is admittedly a Doctor, now working and staying abroad with his wife. He has his own property,

even if the suit property is not given to him. On the other hand, there is nothing on record that the plaintiff has any other property of his own except

a portion of suit property, of which he is in possession since more than 38 years. Further, it is not the case of defendant No. 5 that after purchase

of property, he has made any improvement over the suit property. So, in the facts and circumstances of the case, the said decisions relied on for

the defendant No. 5 do not come to his aid,

However, it was further argued for the defendants-4 and 5 that the plaintiff himself had claimed compensation as alternative relief if the specific

relief was not granted and as such relied on a Division Bench decision of this Court in the case of RANGANAYAKAMMA v. N.

GOVINDANARAYAN 1982 (1) Kar.L.J. 385. In the said case, there was no subsequent purchase for value without notice and hence, it does

not apply to the present case.

That apart, according to the learned Counsel for plaintiff, claiming damages or compensation as alternate relief to the specific relief cannot be

taken as a ground to refuse specific relief if the plaintiff is otherwise entitled. For that, he has relied on a decision of this Court in the case of

DEVENDRA BASAPPA DODDANNAVAR v. SMT. SONUBAI TULJANSA KOSANDAL AND ORS. AIR 1971 Mys 217 wherein, it is

held thus.

18......... Section 19, contemplates a suit for specific performance. In such a suit it is open to the plaintiff to ask for compensation for the breach of

the contract either in addition to or in substitution for such purpose. The fact that the plaintiff has asked for the alternative relief which is permissible

u/s 19 does not prejudice his right to get a decree for specific performance. The second paragraph of- Section 19 makes the matter very clear. If

specific performance cannot be granted and the breach of the contract is by the defendant, the plaintiff will be entitled to compensation for that

breach. It is quite conceivable that specific performance may not be granted for the reasons mentioned u/s 22 and not for the reason that the

plaintiff has sought alternative relief.

So, in view of the provision contained in Section 21 (Section 19 under old Act of 1877), I fully agree with the argument advanced for the plaintiff.

Further, it may be noted that when the Trial Court had granted the relief of specific performance, the first Appellate Court should have been

slow in reversing the same. In the case of Uttar Pradesh Co-operative Federation Ltd. Vs. Sunder Brothers of Delhi, the Supreme Court has held

thus:

(8) As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge, but if it

appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts

then it would certainly be open to the appellate Court to interfere with the trial court''s exercise of discretion. This principle is well established; but,

as has been observed by Viscount Simon, L C. in Charles Osenton and Co. v. Johnston 1942 AC 130 at p.138:

The law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any

difficulty that arises is due only to the application of well settled principles in an individual case.

Of course, the said observations were made while considering Section 34 of the Arbitration Act. But, the ratio applies even to the cases under

Specific Relief Act. At any rate, knowing fully well of plaintiffs possession over a portion of suit property for the last more than 38 years, when the

defendant No. 5 did not bother to enquire with the plaintiff and try to know the right, if any, of the plaintiff over the suit property and has chosen

the risk, no provision of law or equity comes to his aid.

Even otherwise, on facts also, it is not a case where specific relief could be refused to the plaintiff when he has proved his case and the

defendant No. 5 has failed to show that he was a bonafide purchaser of suit property without notice. So, the first Appellate Court''s interference

with the discretion of the Trial Court was not proper. Accordingly, Point No. 2 is also answered in favour of plaintiff.

No other point has been raised nor arises for consideration.

In the result, the appeal is allowed and the impugned judgment and decree passed in R.A. Nos. 65/1995 and 28/1996 on the file of the Court of

First Additional District Judge at Dharwad are set aside restoring the judgment and decree passed by the Trial Court in O.S.No. 40/ 1990.