T.M. Abdul Majeed vs Nabeesa and Others

K. Harilal, J.

The appellant in this Regular Second Appeal is the defendant No. 1 in O.S. No. 46/90 on the files of the Munsiff''s Court, Perumbavoor as well as the respondent No. 1 in A.S. No. 78/99 on the files of the Subordinate Judge''s Court, North Paravur. The said O.S. No. 46/90 was filed by respondent Nos. 1 and 2 along with respondent No. 7 herein before the Munsiff''s Court, Perumbavoor, for a declaration that the sale certificate, issued by the Subordinate Judge''s Court, North Paravur to the appellant herein in respect of property scheduled to the plaint measuring 40.850 cents as decree holder/auction purchaser in O.S. No. 149/1993, and the delivery report recording delivery of the said property, are null and void and are not binding on the plaintiffs and the suit properties, for declaring plaintiffs'' title over suit properties and for an injunction restraining the appellant herein from trespassing into the properties and for other reliefs. After trial, the learned Munsiff dismissed the suit.

Feeling aggrieved, the respondents 1 and 2 had preferred the above appeal. After re-appreciating the evidence on record, the lower appellate court reversed the entire findings arrived at by the Munsiff''s Court and allowed the appeal. This Regular Second Appeal is filed challenging the divergent finding arrived at by the lower appellate court.

The parties are referred to as in the original suit. The second defendant was the owner of 40.850 cents of land as per Sale Deed No. 5106/81. He borrowed ` 15,000/- from the third defendant and executed a promissory note in her favour on 27-10-1981 and entrusted the sale deed of the above said property with the third defendant as security for the amount borrowed. Since the second defendant failed to repay the amount, the third defendant filed Pauper O.P. No. 4/84 on 7-3-1984 before the Munsiff''s Court, Perumbavoor. The above said 40.850 cents of land was attached before judgment on 7-3-1984 itself. Subsequently, that O.P. was converted into a suit as O.S. No. 521/84 and the second and third defendants, who are the defendant and plaintiff respectively in that suit, entered into a compromise on 14-12-1984 and as per that compromise decree, the second defendant transferred entire 40.850 cents of land to the third defendant. The third defendant became the absolute owner of 40.850 cents of land. Subsequently, the third defendant executed Gift Deed No. 129/85 in favour of her daughter Renuka Devi, thereby transferring 6.960 cents of land to her. She sold that property to the third plaintiff and that property is mentioned as C schedule in the plaint. The remaining property kept by the third defendant, ie., 33.890 cents was sold by her to the fourth defendant as per Sale Deed No. 227 dtd. 15-1-1985. Out of that property, the fourth defendant sold 10.65 cents of land to the first plaintiff as per Sale Deed No. 5639 dtd. 10-10-1985 and it is the A schedule property in the plaint. On the same day, the fourth defendant executed Sale Deed No. 5638 for 23.240 cents of land to the fifth defendant. The fifth defendant, in turn, sold that property to the second defendant vide Sale Deed No. 199 dtd. 15-1-1986. That property is the B schedule property in the plaint.

It is learnt that the second defendant borrowed ` 30,000/- from the first defendant on 8-5-1982 after entrusting the sale deed of 40.850 cents of land owned by him. Since the second defendant did not pay that amount, the first defendant filed O.S. No. 224/82 before the Sub Court, Kochi. Subsequently, that suit was transferred to the Sub Court, Parur and it was renumbered as O.S. No. 149/83. That suit was decreed in favour of the first defendant on 31-8-1984, charging the decree amount on the above said 40.850 cents of land. Subsequently, the first defendant filed an execution petition and brought the above said 40.850 cents of land to sale. The sale proceedings taken by the first defendant was not lawful. The first defendant did not produce encumbrance certificate of that property before it was proclaimed for sale. The first defendant purchased that property in court auction without observing the legal formalities. Sale certificate and delivery report in favour of the first defendant are null and void. So, the first defendant has no right or possession over the above said 40.850 cents of land. Hence it has to be declared that sale certificate and delivery report obtained by the first defendant are null and void and it is not binding on the plaintiffs and plaint schedule properties. Further, the title and possession of the plaintiffs over the plaint schedule property have to be declared.

The second and third defendants remained ex parte. Even though the defendants 4 and 5 entered appearance, they did not file any written statement. The first defendant was the only contesting defendant. He filed a written statement contending as follows:-- The prime contention is that the sale in favour of the third defendant by way of compromise decree is hit by lis pendens. The sale deeds in favour of the plaintiffs are sham documents and are not binding on the first defendant. The second defendant was the owner of 40.850 cents of land, which includes the plaint schedule property. He borrowed ` 30,000/- from the first defendant after depositing title deed of the said property and also executing a promissory note in his favour. Thus, an equitable mortgage by deposit of title deed was created in favour of the first defendant. Since the second defendant did not pay back the money, he filed O.S. No. 149/83 and that culminated in passing of the decree in his favour. It is not correct to say that the second defendant had borrowed ` 15,000/- from the third defendant after depositing title deed of the above said 40.850 cents of land. The first defendant produced the title deed deposited by the second defendant and a charge decree was passed in favour of the first defendant on 31-8-1984. O.S. No. 521/84 was filed by the third defendant in collusion with the second defendant for the purpose of defrauding first defendant and defeating the decree that may be passed in O.S. No. 149/83. Thus, the third defendant obtained a decree in O.S. No. 521/84 by fraud and collusion, on 14-12-1984. So, that decree is not binding on the first defendant. The compromise decree in O.S. No. 521/84 was a fraud upon the court below. The third defendant did not file any execution petition to realise the amount due under fraudulent decree obtained by her. Since the third defendant had no title over 40.850 cents of land, the subsequent sale deeds executed by her have no legal validity and they are hit by lis pendens. All the transfers under the third defendant were after passing of the decree in O.S. No. 149/83. The plaintiffs have suppressed all these material facts in their plaint and that the first plaintiff had obstructed delivery of the property in E.P. No. 285/86 in O.S. No. 149/83 and they have filed a claim petition E.A. No. 437/87, not to demolish the buildings put up by them. That claim petition was dismissed and the plaintiffs'' buildings were demolished with police protection as per the order of Parur Sub Court. All these facts are willfully suppressed so as to defraud the Court. The first defendant has got possession over the property through Court and he is still continuing in possession of the property. The suit is barred by res judicata since the claim of the plaintiffs has been finally determined by the order passed on the claim petitions filed by them. The suit is vexatious as well as an experimental exercise only. Hence prayed for dismissal of the suit.

P.W. 1 was examined and Exts. A1 to A12 were marked from the plaintiffs'' side. Exts. B1 to B7 were marked from the defendants'' side. The defendants did not adduce any oral evidence. The trial court rightly framed five issues. After appreciating the evidence, though the suit was dismissed, the same was decreed as such in the appeal.

The learned counsel for the appellant advanced arguments challenging the judgment and decree passed in appeal and justifying the judgment and decree passed by the trial court. According to him, the decision of the lower court, allowing the appeal and decreeing the suit, subject to payment of decree debt in O.S. No. 149/83 to the first defendant/appellant, is illegal and unsustainable. In fact, the appellant/first defendant was not heard before the appellate court and the review filed by the appellant/first defendant was also ended in dismissal. The lower appellate court ought to have found that the suit was hit by doctrine of lis pendens and res judicata. It was never the case of the second defendant that there was no mortgage or there would not have been a charge. The equitable mortgage by deposit of title deed was not disputed. The lower appellate court ought to have found that the suit was filed collusively by the second and third defendants with an intent to defeat the decree that may be passed against the second defendant in O.S. No. 149/83. The court below went wrong in finding that the compromise decree passed after passing of a charge decree is not hit by lis pendens. Similarly, the court below ought to have found that a stranger to the decree has no right to challenge the irregularities said to have been committed in the auction conducted in execution of the decree. The lower appellate court has lost sight of the evidence available on record, that proves that the third defendant was fully aware of the pendency of O.S. No. 149/83 between the first and second defendants, based on equitable mortgage by deposit of title deed, when the third defendant filed O.S. No. 521/84 against the second defendant. The lower appellate court ought to have found that the plaintiffs have suppressed the earlier dismissal of the claim petition in the instance case, with an intent to get over the bar under res judicata and the judgment passed on the claim petition, rejecting the claim had attained finality, in the absence of challenge. In short, the argument is that, though the trial court elaborately considered the entire legal as well as factual issues, the lower appellate court unsettled the same without reappreciating either those legal issues or evidence on record, in their correct perspective.

Per contra, the learned counsel for the respondents/plaintiffs advanced arguments to justify the impugned judgment under challenge. According to him, the lower appellate court rightly arrived at a finding that the principles of lis pendens do not have any application in the instance case the learned counsel contends that the trial court has misconceived the scope and extent of the principles of lis pendens. The lower appellate court can be justified in finding that lis pendens sale does not affect the right under the decree since the suit was one for realisation of money only and the first defendant cannot claim right over the property, if the plaintiffs are ready to pay the mortgage money due under the decree to the first defendant. Further, the auction sale conducted in execution of the decree is vitiated by procedural irregularities due to non production of encumbrance certificate and lack of notice to the plaintiffs. The plaintiffs are bona fide purchasers for valuable consideration without notice of the pendency of the suit, O.S. 149/83. In such circumstance, decreeing the suit, subject to payment of decree debt, is legal as well as justifiable. In short, the argument is that the first defendant will not get any right over the property, if either the plaintiffs or their predecessors or the second defendant were ready to pay the decree debt in the execution of the decree, in the absence of any kind of right over the property.

I have bestowed my anxious consideration to the submissions at the Bar. Being a Regular Second Appeal, the scope of interference is confined to the question whether there is any illegality either in the findings or in the appreciation of evidence from which those findings had been arrived at?

Going by the judgment passed by the trial court, it could be seen that the learned Munsiff dismissed the suit mainly on the ground that the transfer of property by the second defendant in favour of the third defendant by virtue of compromise decree in O.S. No. 521/84 is hit by principles of lis pendens under Section 52 of the Transfer of Property Act and the said suit itself was one filed collusively by them with an intent to circumvent the charge decree that may be passed in O.S. No. 149/83, filed by the first defendant against the second defendant. In short, the institution of the suit as well as compromise decree passed therein is an attempt to defraud and defeat the earlier mortgage suit. It was also found that the suit itself was bad by suppression of material facts relating to earlier claim petition filed by the plaintiffs at the time of execution of the decree passed in O.S. No. 149/83. That order had attained finality in the absence of appeal. Hence subsequent suit is barred by res judicata also as the claim of the plaintiffs was determined in the claim petition itself. The trial court unequivocally found that the third defendant was fully aware of the execution of equitable mortgage by way of deposit of title deed in favour of the first defendant as the said amount was borrowed for the purpose of the third defendant. The learned Munsiff relied on various authorities in support of the above findings.

But, going by the judgment under challenge passed by the lower appellate court, after unsettling the entire findings of the learned Munsiff, it could be seen that the learned District Judge allowed the appeal mainly on the ground that the suit is not hit by lis pendens as the transfer by way of compromise decree does not affect the right of the first defendant under the decree in O.S. No. 149/83. It is also found that no evidence is available to show that the judgment debtors have got knowledge of the execution proceedings in O.S. No. 149/83 and the plaintiffs are bona fide purchasers for valuable consideration without notice of the pending suit, O.S. No. 149/83.

Let us examine the legality and correctness of the divergent findings. Coming to the question of lis pendens, certain facts are seen undisputed. The second defendant was the owner in possession of 40.850 cents of land. He borrowed ` 30,000/- from the first defendant on 8-5-1982 and deposited his title deed with respect to 40.850 cents of property and executed a document in favour of the first defendant creating an equitable mortgage by deposit of title deed with regard to the above land. Since the amount was not repaid, the first defendant filed O.S. No. 149/83 against the second defendant and obtained Ext. B2 decree against the second defendant creating charge over the said property on 31-8-1984. In execution of that decree, he filed E.P. No. 285/86 and purchased the property in court sale after removing the obstruction caused by the plaintiffs and also after dismissal of the claim petition filed by them.

While so, the third defendant filed O.S. No. 521/84 against the second defendant for realisation of ` 15,000/- with interest, on the allegation that he had lent the said amount to the second defendant after receiving the title deed of the very same property as security. Be that as it may, however, he obtained a compromise decree on 14-2-84 and it is the case of the plaintiffs that the said 40.850 cents of property was transferred to the third defendant on that day. Now the point that emerges for consideration is, whether the alleged transfer is hit by lis pendens due to the pendency of O.S. No. 149/83, more particularly, when the charge decree dated 31-8-84 passed therein is pending for execution?

The learned counsel for the first respondent vehemently contended that there was no mortgage suit and the suit was one for realisation of money only. According to him, the mortgaged property is only a security for realisation of money lent by the mortgagee. So, no kind of right or charge will be accrued on the above said property. According to him, the first defendant had the right to realise the decree amount from the property, when the second defendant fails to repay the said amount. So, the transfer of property does not affect the right of the first defendant as he had no vested right over the property. As such, the lis pendens will not come into application.

So, the question of lis pendens has to be considered keeping in view of the above argument advanced by the learned counsel for the respondents. Execution of an equitable mortgage by depositing the title deed of 40.850 cents of property stands undisputed. What are the legal consequences following the creation of a mortgage? Is it a mere acquisition of security to secure debt?

In view of the contentions raised by the learned counsel, the question that emerges for consideration is, whether a suit relating to a property is necessary for attracting the principles of lis pendens? According to Section 58 of the Transfer of Property Act, a mortgage is the transfer of an interest in the specific immovable property for the purpose of securing payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. On an analysis of the section itself, it could be seen that mortgage is not a mere acquisition of security for future payment. By the creation of mortgage, the mortgagor transfers his specific interest in the immovable property mortgaged in favour of the mortgagee. Thus, as soon as mortgage is created, transfer of an interest in his specific immovable property in favour of mortgagee is also effected. Needless to say, the transfer of this interest would create a charge over the specific immovable property in favour of the mortgagee, by passing of the charge decree in the mortgage suit filed by the mortgagee on default of repayment. In the instance case, transfer of interest over 40.850 cents of property had been ripened into a charge decree on 31-8-1984 before the alleged transfer in favour of the third defendant by the compromise decree. At this point, the learned counsel for the appellant cited the decision in Joseph Vs. Marium Thomas, . In the above said decision, this Court held as follows:--

"For attracting S. 52 of the Transfer of Property Act it need not necessarily be a suit relating to a property it is sufficient if a charge is claimed in respect of the property. In that case also the prohibition contained in Section 52 is attracted and any transfer after the filing of the suit will be hit by S. 52 of the Transfer of Property Act. In this case admittedly the purchase of the property by the appellant was after the suit for maintenance claiming charge over the plaint schedule property. Therefore even if the appellant is a bona fide purchaser he cannot claim any right in preference to the claim for charge as ordered by the Civil Court."

According to Section 52 of the Transfer of Property Act, where a suit in which right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any of the parties to the suit so as to affect the right of other party thereto under any decree or order which may be made therein, except under the authority of Court.

For attracting Section 52 of the Transfer of Property Act,

"(1) Suit must have been pending before the competent court.

(2) That suit shall not be a collusive one.

(3) Any right to immovable property is directly and specifically in question.

(4) That property is transferred or otherwise dealt with by any property to the suit or proceedings so as to affect right of any other party thereto under any decree or order, which may be made therein."

In the instance case, the plaintiffs have no case that O.S. No. 149/83 filed by the first defendant against the second defendant is a collusive suit. So also, the creation of equitable mortgage by deposit of title deed by the second defendant in favour of the first defendant is also undisputed. As I analysed above, by the execution of equitable mortgage by deposit of title deed, the first defendant got an interest over 40.850 cents of property and eventually that right was ripened to a charge decree over the said property on 31-8-84. Indisputably, the alleged transfer in favour of the third defendant by virtue of compromise decree passed in O.S. No. 521/84 was effected on 14-12-84 only. Put it differently, the first defendant had already obtained a decree allowing the property sold in execution of the decree at the time when the alleged transfer was effected by way of compromise decree in O.S. No. 521/84. Thus the charge decree passed in O.S. No. 149/83 was pending in execution. Explanation to Section 52 of the Transfer of Property Act makes it clear that the effect of lis pendens continues till the satisfaction of the decree. Thus, I hold that the alleged transfer of property by the second defendant in favour of the third defendant by virtue of compromise decree in O.S. No. 521/84 was hit by the principles of lis pendens, as rightly found by the learned Munsiff. Needless to say, the said transfer during the pendency of execution proceedings in O.S. No. 149/83 is not a valid transfer and having no consequence at all in the eye of law. But, the lower court, without analysing the legal issues involved in the appeal, evasively in a causal manner unsettled the findings in a well considered judgment passed by the trial court. The lower appellate court went wrong by finding that the alleged transfer does not affect the first defendant''s right under the decree. The lower appellate court should have remembered that in execution of the charge decree, sale was effected in favour of the first defendant with the permission of the Court and the property had been delivered to the first defendant through the process of the Court.

Coming to suppression of material facts, it is seen that the lower appellate court had lost sight of the dismissal of Ext. B6 claim petition filed by the plaintiffs, when the decree in O.S. No. 149/83 was sought to be executed by the first defendant. Ext. B4 is the order dismissing the claim petition. Even though the claim petition was found against the plaintiffs, they did not prefer appeal and it attained a finality. So, they are not entitled to file a fresh suit suppressing the fact that the property was taken possession from her and it was handed over to the first defendant through the Court. Here, the principles of res judicata also comes into play and the suit can be found barred by res judicata also. The right claimed by the first defendant had already been determined and got rejected by Ext. B4 order. Ext. B7 is the delivery report submitted by Amin before the Sub Court, Parur. It shows that after removing the building, vacant possession of decree schedule property was handed over to the first defendant on 8-9-88. The first plaintiff has also acknowledged the delivery of the property. But the present suit was filed in suppression of earlier proceedings.

The learned Munsiff unequivocally arrived at a finding that O.S. No. 521/84 was filed collusively by the third defendant with an intent to defeat the decree that may be passed in O.S. No. 149/83. The plaint averments in O.S. No. 521/84 itself is suspicious as well as unbelievable. It is the specific case of the plaintiffs that the second defendant had borrowed an amount of ` 15,000/- from the third defendant and entrusted 40.850 cents of land as security by way of equitable mortgage by depositing the title deed in the year 1981. But, contrary to the said averment, it has come out in evidence that the said original title deed was produced by the first defendant in O.S. No. 149/83 as the title deed which had been deposited with him at the time of executing equitable mortgage, when the second defendant borrowed ` 30,000/- from him in the year 1982. Had it been deposited with the third defendant in the year 1981, how can it be produced in O.S. No. 149/83? If the original title deed had been deposited with the third defendant as security for money transaction, would anybody return the same after accepting a photocopy as explained in the plaint by the plaintiffs? At this context, I am constrained to believe the first defendant''s case that Ext. A1 was a collusive suit to defraud the first defendant. But the lower appellate court erroneously found that the plaintiffs are bona fide purchasers for valuable consideration without notice. The above finding was made in ignorance of the fact that the first plaintiff was the claim petitioner, who obstructed execution of the decree in O.S. No. 149/83 and the property was delivered to the first defendant after removing the obstruction caused by the first plaintiff and dismissing the claim petition.

It is to be remembered that the second defendant is an employee of the third defendant and in Ext. A5 written statement filed by the second defendant in O.S. No. 149/83, the specific contention is that the third defendant is his employer and she borrowed ` 30,000/- from the first defendant as instructed by the third defendant. It is also admitted that the interest of the said amount was paid by the third defendant. At this context, the definite case of the first defendant that when the second defendant came to understand that O.S. No. 149/83 pending against him would be decreed against him, himself and his employer, the third defendant, colluded together and filed Ext. A1 suit on 7-3-1984 with an averment that money transaction between them was on 27-10-81, cannot be brushed aside. It is pertinent to note that after filing the suit without much delay, they effected attachment before judgment and entered into a compromise by way of transferring the entire 40.850 cents of property for a paltry sum of ` 15,000/-. I am also endorsing the views of the trial court that there was no bona fides in Ext. A1 suit and also Ext. A2 decree obtained thereunder.

At this context, it is to be remembered that even if the plaintiffs are bona fide purchasers for valuable consideration without notice, they cannot claim any protection against the consequences under Section 52 of the Transfer of Property Act. This legal position is well settled by this Court in Padmaja Vs. Sajeev, , which reads as follows:

"S. 52 is a bar on a party to the suit transferring the subject matter of the suit during the pendency of the suit without the authority of the Court. A transfer made by a party to the suit subsequent to the institution of the suit which affects the rights of the opposite party would not be recognized by the Court. S. 52 does not contemplate a case of the transferee being a bona fide purchaser. A defence that the transferee is a bona fide purchaser for value without notice of the earlier transaction is not a defence that could be taken in answer to the claim of bar under S. 52. The terms of S. 52 are clear and imperative. It cannot be said that a purchaser without notice of earlier agreement would not be affected by the mandate of S. 52. In this context, it is relevant to note that S. 100 of the Transfer of Property Act recognizes the rights of any person who acquires the property for consideration and without notice of the charge. The charge under S. 100 could be created by act of parties or by operation of law. S. 52, on the other hand, can have operation during the pendency of a litigation."

Similarly, the learned counsel for the respondents highlighted the point that the attachment before judgment was effected in O.S. No. 521/84 on 7-3-1984, before passing of charge decree in O.S. No. 149/83 on 31-8-1983. The legal position is that attachment before judgment is of no consequence at all against the applicability of doctrine of lis pendens. In Kedar Nath Lal and Another Vs. Ganesh Ram and Others, , the Supreme Court held as follows:

"16. The second ground of attack is that before the proceedings commenced before the Registrar these fields had been attached and therefore, the doctrine of lis pendens again cannot apply. We are unable to accept this argument either. If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. Therefore the attachment was ineffective against the doctrine. Authority for this clear position is hardly necessary but if one is desired it will be found in Moti Lal v. Karrab-ul-Din, (1897) 24 Ind App 170 (PC) ."

The learned counsel for the respondents cited A. Nawab John and Others Vs. V.N. Subramaniyam, and contends that Section 52 does not render transfer of property during pendency of the suit void. But it is to be remembered that the said decision further says that it renders such transfers subservient to the right of the parties to the pending suit. Hence the decision will not render any help to the respondents.

At last, the learned counsel for the respondents advanced arguments pointing out the illegalities in the judgment passed in O.S. No. 149/83. The learned counsel submitted that equitable mortgage which was culminated in charge decree in O.S. No. 149/83 is not a registered one. Thus the creation of the mortgage itself is vitiated by non compliance of the mandatory requirement under Section 17 of the Registration Act, as the same was not a registered deed. To fortify the point that equitable mortgage by deposit is a compulsory registrable document, the learned counsel cited Allahabad Bank Vs. Ley Bros., . Similarly, the sale of property in execution of the decree was conducted without proper public notice and production of encumbrance certificate. But, it is to be borne in mind that plaintiffs in O.S. No. 521/84 are not parties in the said judgment and this Court is not sitting in appeal over the judgment in O.S. No. 149/83. It is pertinent to note that the sole defendant in O.S. No. 149/83, who is the second defendant herein, has not challenged the judgment and decree in O.S. No. 149/83 pointing its alleged illegality or irregularity. Being strangers to the suit the plaintiffs have no locus standi to challenge the legality of the judgment and decree passed in O.S. No. 149/83.

That apart, in the plaint, there are no pleadings challenging either the creation of equitable mortgage by deposit of title deed in favour of the first defendant or the legality of the judgment passed in O.S. No. 149/83. The challenge is against the auction proceedings including issuance of sale certificate and delivery of the property thereunder. The first plaintiff had already challenged the same under claim petition and got dismissed. It is also significant to note that the plaintiffs have no case that decree in O.S. No. 149/83 is a fraudulently obtained one. In the above circumstances, I have no hesitation to hold that the plaintiffs have no locus standi to challenge the legality of the judgment and decree passed in O.S. No. 149/83 wherein the plaintiffs are strangers. The first plaintiff was not a judgment debtor in O.S. No. 149/83 as erroneously found by the first appellate court. In the above view, I reject the arguments challenging the legality and enforceability of the judgment and decree passed in O.S. No. 149/83 on merits. Consequently, the decisions cited above by the learned counsel for the respondents do not merit consideration in the instance case.

The trial court successfully considered the factual as well as legal issues in its correct perspective. But the appellate court miserably failed to consider the same in its correct perspective. Consequently, the judgment and decree passed by the lower appellate court will stand set aside and the judgment and decree passed by the trial court will stand restored. In the result, this Regular Second Appeal is allowed.