High Court Division :
(Civil Appellate Jurisdiction)
Sheikh Abdul Awal J
Shahidul Karim J
Hamidur Rahman and others
Abdul Hashim and ors .... ......... Opposite Parties
July 28th, 2016
Transfer of Property Act (IV of 1882)
There is no right to compensation for improvements made pendent lite' with full knowledge of the risk in doing so and, as such, the claim of compensation of the plaintiff for the improvement works alleged to have been done during pendency of the suit is altogether unacceptable. . ..... (20)
Transfer of Property Act (IV of 1882)
A person intended to be evicted from a land cannot maintain a suit for the alleged improvement costs under the section, rather his right to sue would accrue only after actual eviction is made. .. .... (22)
Ruhul Amin Tuhin, Advocate-For the Appellants.
Abdul Wadud Bhuyan. with Md lshaque Mian,
Advocates-For the Respondents.
Shahidul Karim J : This appeal is directed against the judgment and decree dated 23-8-2011 (decree signed on 29-8-2011) passed by the learned Joint District Judge, 1st Court, Brahmanbaria in Title Suit No. 17 of 1985 decreeing the suit.
2. The predecessor of respondent No. l(a), namely, Abdul Hashim (since deceased) as plaintiff filed the original suit being Title Suit No. 17 of 1985 against the predecessor of defendant appellants, namely, Abdul Mannan and others on the averments that he purchased the suit land from defendant Nos. 2 & 3 in the year 1964. That he had no prior knowledge about the contract of sale alleged to have been entered into between Abdul Mannan and defendant Nos. 2 & 3. After 3 (three) years into his purchase of the suit land, Title Suit No.01 of 1967 was filed by said Abdul Mannan for specific performance of contract with regard to the self-same land wherefrom he came to know about the alleged contract of sale. In the said suit the plaintiff was impleaded as defendant and he contested the same by filing written statement. But, eventually, the suit was decreed against which the present plaintiff took an appeal being Appeal No.156 of 1968 in the Court of District Judge, Comilla which was allowed and the decree passed by the trial court was knocked down. Feeling aggrieved thereby, the plaintiff of Title Suit No.01 of 1967 preferred a second appeal being Appeal No. 198 of 1970 before the then High Court, Dhaka which was ultimately allowed. Thereupon, the present plaintiff filed a civil petition for leave to appeal before the Appellate Division of the Supreme Court of Bangladesh being No. 231 of 1984 which was eventually dismissed. Thereafter, against the aforesaid order of dismissal a review petition was moved which was also ended up in the negative. However, while disposing of the aforesaid second appeal as well as the civil petition for leave to appeal, the relevant courts observed that the plaintiff is entitled to get compensation. The plaintiff has been possessing the suit land since his purchase in 1964 and during these years he made a considerable improvement on the suit land by erecting different structures as well as by doing several development activities. In the aforesaid backdrop, the plaintiff is entitled to get Taka 6,08,189 as compensation and hence the suit. It is to be noted further that during pendency of the suit an Advocate Commissioner was appointed on the prayer of the plaintiff party to assess the value of different structures standing on the suit land as well as the improvement cost employed thereon, who however submitted a report on 8-2-1989 wherein the value was shown as more than Taka 43 lacs and accordingly, the plaint was amended whereby the claim of compensation was raised to the tune of Taka 43 lacs and odd.
3. Defendant No.1 (Zha) contested the suit by filing written statement denying all the material allegations made in the plaint and contended, inter-alia, that the suit is not maintainable in its present form and manner; the suit is barred by limitation; and it is not entertainable as per provision of Section 51 of the Transfer of Property Act (hereinafter referred to as the Act). The further case of defendant No.1 (Zha) is that the suit land along with other land measuring 5.81 acres originally belonged to Gongabasi Debi and others which was put on auction for non-payment of rent in certificate case No.55921 of 1960-61 whereupon defendant No.2 Ismail and defendant No.3 Abdul Ahad purchased the said land on 3-7-1961 and got sale certificate thereof as well as delivery of possession on 19-2-1963 through court. While the aforesaid auction purchasers were owning and possessing the said land, they proposed to sell 4.81 acres of land to the father of the defendant, namely, Abdul Mannan and accordingly, a talk of sale was held on 9 Magh 1369 BS wherein the price of the land was settled at Taka 5000 in presence of defendant No.4 and others. In that meeting it was further agreed that the father of the defendant would pay Taka 601 as earnest money to defendant Nos.2 & 3 whereupon they in return would execute a bainapatra in favour of the former and would also hand over possession and subsequently upon receiving income tax clearance certificate and nationality certificate they would execute and register a sale deed on receiving the balance consideration money amounting to Taka 4399. Thereupon, in terms of the above contract on 10th Magh 1369 BS the defendant Nos. 2 & 3 executed a bainapatra in the name of the father of the answering defendant, Abdul Mannan upon receiving Taka 601 as earnest money in presence of the witnesses. Subsequently, on different occasions the father of the defendant Abdul Mannan paid Taka 4000 to defendant Nos.2 & 3 who acknowledged the same hy issuing receipt thereof. But, eventually, the defendant Nos.2 & 3 did not execute and register a sale deed in favour of Abdul Mannan whereupon he was rather compelled to institute a suit being Title Suit No.01 of 1967 for specific performance of contract in the court of the then Sub-Ordinate Judge, 2nd Court, Comilla which was ultimately decreed on contest. Against the said decree, an appeal being Appeal No. 156 of 1968 was filed which was, however, allowed. Thereupon, the father of the defendant, Abdul Mannan took a 2nd appeal in the then High Court, Dhaka being appeal No. 01 of 1970 which was allowed on contest and the decision of the trial court was restored. The said verdict of the High Court was also upheld by the Appellate Division in civil petition for leave to appeal No. 231 of 1984 preferred by the present plaintiff and defendant Nos.4 & 5 and subsequently, their review petition was also rejected by the highest court of the country. The present plaintiff and defendant Nos A & 5 had full knowledge about the contract of sale of the father of the defendant. But, in spite of that, they created some lake and spurious deeds with respect to the self-same land. In the aforementioned suit and appeal it was also decided by the relevant courts that the present plaintiff and defendant Nos 4 & 5 were not bonafide purchasers of the suit land without notice, rather they were well conversant with the bainanama of the father of the defendant. The plaintiff did not make any improvement on the suit land and all the works he had done therein were for his own use and occupation and therefore, he is not entitled to get any improvement costs and, as such, the suit is liable to be dismissed with costs.
4. Upon the aforesaid pleadings, the learned judge of the trial court framed the following issues:
I. Whether the suit is maintainable in its
present form and manner?
2. Whether the suit is barred by limitation?
3. Is the suit bad for defect of parties?
4. Whether the plaintiff has any right, title and possession in the suit land?
5. Is the plaintiff entitled to get decree as prayed for?
6. What other reliefs the plaintiff is entitled to get?
5. In support of his claim the plaintiff adduced 3 (three) witnesses and also submitted some documents which were duly marked as Exhibits. On the other hand, the defendant examined one witness to prove his case but did not produce any documentary evidence.
6. Upon a consideration of the facts, circumstances and evidences on record the learned Joint District Judge decreed the suit by the impugned judgment and decree dated 23-8-2011 holding that as per observations made by the Higher Courts in Civil Revision No.906 of 1986 and Leave Petition No.137 of 1985 the plaintiff is entitled to get compensation and also that admittedly the plaintiff has been possessing the suit land for about 40/50 years wherein he constructed building, excavated ponds as well as made plantation of different types of trees for which he is entitled to receive compensation to the tune of Taka 43,79,155 as reflected in the advocate commissioner's report which was accepted without any objection from the side of the defendant.
7. Feeling aggrieved thereby, the defendant along with other heirs of late Abdul Mannan preferred the instant appeal.
8. Mr Ruhul Amin Tuhin, learned advocate appearing for the defendant-appellant at the outset has taken us through the pleadings of the parties, impugned judgment, evidences and other connected materials available on record and then submits strenuously that the learned judge of the trial committed patent illegality in decreeing the suit inasmuch as no observation was made either by the High Court or by the Appellate Division in Civil Revision No.905 of 1986 as well as Leave Petition No.137 of 1985 respectively regarding the status of the plaintiff so far the matter of his being bonafide purchaser without notice of the earlier contract is concerned. He further submits that the suit in question was filed by the plaintiff respondent No.1 under Section 51 of the Act under which a person having a defective title if evicted from the land in dispute can maintain a suit for compensation. But since the plaintiff-respondent has admittedly been possessing the suit land and as he is yet to be evicted therefrom, his claim for compensation is not tenable in law being premature in nature. Moreover, the plaintiff has miserably failed to prove the very fact that he is a bonafide purchaser without notice of the contract of sale of defendant's predecessor Abdul Mannan by adducing any cogent evidence which is a precondition for maintaining a suit under Section 51 of the Act. Rather, in Title Suit No.02 of 1967 as well as connected 2nd appeal No.198 of 1970 it was decided that the plaintiff was not a bonafide purchaser of the suit land and he was well aware of the contract of sale of Abdul Mannan and, as such, he is not entitled to get any compensation. But the trial court utterly failed to appreciate this aspect of the case and on a misconstruction of both the intent and purport of Section 51 of the Act as well as the tenor of the judgment passed by the superior courts of the country in civil revision No.905 of 1986 and civil petition No.137 of 1985 most illegally decreed the suit, the learned Advocate further added. Finally, Mr Tuhin submits that the impugned judgment and decree is bad in law and facts inasmuch as the plaintiff has hopelessly failed to prove that he. was a bonajide purchaser of the suit land without notice of the earlier contract of sale by adducing any sort of convincing evidence and also that he has not actually been, evicted from the suit land rather he is yet to be evicted and, as such, the impugned judgment and decree is liable to be knocked down being devoid of any substance.
9. As against this, Mr Abdul Wadud Bhuiyan, learned Advocate representing the plaintiff-respondent supports the impugned judgment and decree which, according to him is just, proper and legal. He submits that the trial court below on proper appreciation of both facts and law rightly and lawfully decreed the suit by the impugned judgment which does not warrant any interference by this court as it is based on evidence on record as well as supported by the uncontroverted report of the advocate commissioner. He further submits that the suit is not a premature one as because plaintiff, being a bonafide holder of the land in question under registered sale deeds, is entitled to get back the improvement costs. According to him, the words "evicted there from" as occurring in Section 51 of the Act includes a person who is about to be evicted and since there is no other option for the petitioner to retain the land in dispute rather, he is about to be evicted there from, his claim of compensation under Section 51 of the Act is well maintainable.
10. We have given our anxious consideration to the submissions advanced by the learned advocates of both the sides, perused the plaint as well as written statement, evidences and other connected materials on record including the impugned judgment and decree dated 23-8-2011 and also considered the relevant law bearing on the subject extensively.
11. It is indisputable that the predecessor of the defendant-appellants, namely, Abdul Mannan got a decree for specific performance of contract with regard to the suit land including other land which was upheld by the highest courts of the country. Admittedly, the plaintiff of the instant suit Abdul Hashim (since deceased) was made party in the aforesaid suit along with other defendants and their contention so far their purchase of the suit land without notice of the earlier contract of sale of said Abdul Mannan was turned down by the High Court as well as by the Appellate Division in 2nd appeal No. 198 of 1970 and civil petition for leave to appeal No.231 of 1984 respectively. Thereafter, the said Abdul Hashim instituted the instant suit claiming compensation for the various improvement works alleged to have been carried out by him on the suit land. This claim of the plaintiff was resisted by the defendant I (Zha) by filing written statement wherein it has been categorically asserted that the plaintiff along with other defendants of Title Suit No. 01 of 1967 had prior knowledge about the contract of sale of the predecessor of the defendant and he is not a bonafide purchaser of the suit land without notice of the earlier contract. Furthermore, the defendant did not make any improvement on the suit land, as such, and his claim of compensation under Section 51 of the Act is untenable in law. With a view to appreciate the issue involved in the case, we feel it expedient to have a glimpse at Section 51 of the Act which reads as under:
(To be continued)
"51. Improvements made by bonafide holders under defective titles-When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled (hereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then marked value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and 'egress to gather and carry them."
12. On a careful analysis of the aforesaid provision of law it is apparent that a person who has been evicted call claim compensation under Section-51, provided he is (1) a transferee, (2) he has made the improvement, (3) he has made such improvement believing in good faith that he was absolutely entitled, and (4) he was evicted. The above various capacities or qualifications are to be filled or fulfilled by the person who sought compensation under the above section. Let us now examine how far the plaintiff of the instant suit has been able to satisfy or fulfill the above conditions which are considered to be pre-requisites for getting a favourable order under Section-51 of the Act.
13. On a reference to Exhibits-l to 5 it reveals that the plaintiff-respondent and defendant Nos A & 5 purchased the suit land in between the years 1963 to 1966 through 5 sale deeds from defendant Nos. 2 & 3 namely, Md Ismail Mia and his son Abdul Ahad. Therefore, the plaintiff respondent Abdul Hashim can be regarded as a transferee so far the land covered by Exhibits-3 to 5 is concerned. But that alone would not entitle him to get any compensation under Section 51 of the Act. In this case at our hand the paramount question that calls for our determination is, whether the plaintiff was' a bonafide purchaser of the land in question for value without notice of the earlier contract of sale thereof between respondent-defendant No.1 Abdul Mannan on one hand and defendant Nos. 2 & 3 on the other hand as well as whether the plaintiff did the alleged improvement works in good faith believing him to be the real owner.
14. Upon scanning through the evidences on record it appears palpably that in fact no satisfactory as well as cogent evidence has been adduced by the plaintiff party to prove the aforesaid aspects of the case. It is undeniable that the plaintiff herein as well as defendant Nos 4 & 5 was made party in suit Title Suit No. 01 of 1967 filed by the aforesaid Abdul Mannan for specific performance of contract wherein by filing written statement they raised the plea of bonafide purchaser of the land in question without notice of the earlier contract of sale. It appears that while deciding Title Suit No.01 of 1967 an issue being issue No.3 was framed touching the status of the plaintiff herein so far his claim of being bonafide purchaser without notice of the earlier contract with respect to the land in dispute is concerned in the following words:
(3) Are the 2nd party-defendants bonafide purchasers for value and without notice of contract of sale?
15. Admittedly as well as it reveals from the materials on record that such plea of the plaintiff was negatived by the trial court with a clear finding that the plaintiff and defendants Nos 4 & 5 (who were termed as 2nd party defendants in Title Suit No. 1 of 1967) had full knowledge about the contract of sale of plaintiff Abdul Mannan (defendant No.1 of the instant suit) with regard to the suit land. It is true that the aforesaid finding of the trial court was nullified by the learned District Judge while disposing the connected appeal heing Title Appeal No.156 of 1968. But ultimately the decision of the learned District Judge, Comilla was, however, reversed and that of the trial judge was restored by this Court while dealing with the connected 2nd Appeal being No. 198 of 1970. It appears further that against the verdict of this court civil petition for leave to appeal being No.231 of 1984 was moved before the Appellate Division which was also dismissed and the above observation of this court was maintained. To have a better view of the issue, we feel it necessary to quote the relevant portion of the judgment passed by my lord Mr Justice ATM Afzal in 2nd Appeal No. 198 of 1970, which reads as under:
"Now coming to the issue No. 3 it must be pointed out at the outset that the District Judge has totally failed to make a systematic and correct approach in the matter as was done by the Subordinate Judge, In view of the allegation and counter-allegation of collusion between the plaintiff and the 1st party defendants on the one hand and between the 1st party defendants and the 2nd partydefendants on the other, it was absolutely necessary for the District Judge to assess the stand and evidence of the 1st party defendants in the matter which he, at all, did not do upon a consideration of all the relevant aspects of the case. Be that as it may, while considering whether defendants No. 3 and 4 had knowledge of the disputed contract before purchasing the suit lands he failed to notice that besides the plaintiff the defendants No.1 and 2, who were the sellers, themselves admitted in their written statement that defendant No. 3 was present at the time of settlement of the contract. PW 2, Bidhu Bhusan Das, of course, did not support the
plaintiff's case as to the presence of defendant No.3, Abdul Gafur for which he was cross examined by the plaintiff. But then there was the evidence of PW 3 Abdul Malek. There was some suggestions of enmity given to this witness from the side of the defendants No. 3 & 4 but the witness denied the said suggestions. Therefore, the trial court found him to be an independent witness but the District Judge seemed to have been impressed by the suggestions given to the witness which were denied. Obviously, this was not a correct approach in assessing the evidence. Furthermore, neither the plaintiff (PW 3 nor PW 1 were put any straight question in cross-examination by defendants No. 3 & 4 denying the presence of Gafur at the settlement of the contract. The District Judge made no endeavour to assess the role and character of PW 2 Bidhu Bhusan Das in view of his relationship with both the 1st party-defendants and the plaintiff. The Subordinate Judge made a shrewd assessment of his evidence and gave him the importance that was due to him. The District .Judge was nowhere near the way in which the evidence was sifted, analysed and assessed by the trial Court. Then with regard to the knowledge of the defendant No. 5, the evidence has come from a person no other than the vendor himself i.e. defendant No. 1 (DW I). In this case also the District Judge made a mistake by holding that the defendant No.5 if at all was informed about that, even if it was executd by the Defendant No.1, it was definitely a malafide one and could not but be termed as collusive. Evidently, this was nobody's case that exhibit-2 was collusive. The 1st party-defendants alleged the same to be forged. But upon a meticulous consideration, the Subordinate Judge found exhibit-2 to be a genuine receipt. Now the District Judge out of the blue found that it was a collusive receipt. Indeed, he was not at all called upon to decide on the receipt, inasmuch as, the point at issue whether the appellants were bonafide purchasers for valuable consideration without notice did not involve the consideration of the receipt which was between the I st party-defendants and the plaintiff. The impugned judgment has been so loosely written that it becomes difficult to keep track with with what the discussion was aiming at. On the balance and for the reasons stated above, I am satisfied that it was not at all a proper judgment of reversal and the same is liable to be set aside."
16. Furthermore, while deciding Civil Petition for Leave to Appeal No. 231 of 1984, the highest court of the country has observed as follows:
"Mr MH Khondker appearing for the defendants 3 to 5 attempted to argue that they were bonafide purchasers for value without notice of the plaintiff's contract. This argument does not appeal to us inasmuch as the finding of fact by the trial court was affirmed by the High Court Division in Second Appeal after due assessment of the plaintiffs evidence which is unassailable. Mr Khondker took exception to certain casual observations made in the judgment of the High Court Division which, however, could not make any difference in evaluating the evidence that the defendants had prior knowledge of the contract of the plaintiff. In this view of the matter, there is no hesitation to say that the High Court Division rightly restored the judgment and decree of the trial court which decreed the suit for Specific Performance of Contract.
In the result therefore this petition is dismissed."
17. It is also an admitted position that the plaintiff of the instant suit moved a review petition being No.01 of 1985 before the Appellate Division and the said review petition was also turned down.
18. The essence of our above discussion is that the plaintiff-respondent was not a bonafide purchaser without notice of the contract of sale of the predecessor of the contesting defendant appellants, namely, Abdul Mannan, rather he was well aware of the said contract of sale. Furthermore, since the issue of bonafide purchase without notice has already been settled between the parties by the highest court of the country, the same cannot be reopened in any subsequent suit between the same parties as the verdict of the highest court of the country is biding upon them.
19. It further appears that admittedly a lengthy as well as tedious legal battle with respect to the land in question has been fought between the parties the starting point of which dates back to 1967 and the same is still continuing. It is on record that the predecessor of the defendant appellants, Abdul Mannan instituted the suit for specific performance of contract in 1967 which was decreed on contest against the plaintiff of the instant suit and others on 20-9- I 968. From the above decision of the court concerned several legal proceedings were originated up to the Appellate Division of the country wherein the claim of the said Abdul Mannan was eventually sustained and that of the contesting defendants of that suit was nullified. In the said legal proceedings it was further decided that Abdul Mannan purchased the structures standing on the land in question from its original owner by paying money. Now the plaintiff herein has filed the instant suit in 1985 claiming compensation for the improvement works alleged to have been done by him on the suit land which, in view of the explicit provision of section 51 of the Act, appears to be wholly untenable inasmuch as he did not do it in good faith believing him the real owner. Rather, in the facts and circumstances of the case it is apparent that the plaintiff was well aware of the fact that he is not the real owner of the land in question as he knew it very well from the very beginning about the contract of sale of the predecessor of the defendant-appellants as observed by the highest court of the country regarding which we have noticed earlier. In the alternative it can be said that the alleged improvement on the land in question was made by the plaintiff for his own use and occupation taking the risk on his shoulder.
20. It transpires from the record that at the time of filing of the instant suit on 3-3-1985 the amount of improvement cost was shown as Taka 6,08,189.50 which was ultimately raised to Taka 43,79,155 by way of amendment of plaint done on the basis of a report dated 8-2-1998 filed by the Advocate Commissioner whereby the value was enhanced keeping congruity with the then market price 'of the alleged improvement works. On a perusal of the impugned judgment it reveals that the learned judge of the trial court decreed the suit and directed the contesting defendant-appellant to pay the above amount of Taka 43,79,155 to the plaintiff. The aforesaid decision of the court below is totally unfounded in law as because as per Section 51 of the Act a bonafide transferee can maintain a suit for compensation if he is evicted from the land in dispute and that too for the estimated value of the improvement works done at the time of such eviction. But in the instance case we found that the plaintiff has hopelessly failed to fulfil the above two criteria inasmuch as he is not a bonafide transferee rather he had full knowledge about the earlier contract of sale (which issue as already been settled by the highest court) and he has not been evicted either from the land in dispute as admittedly the land in question is still under his possession. There is no legal scope for a person intended to be evicted from a piece of land to claim compensation under S ection 51 of the Act. Only the person actually evicted can maintain a suit under the above provision of law and that too for the period till eviction is made. Moreover. there is no right to compensation for improvements made pendent lite with full knowledge of the risk in doing so and. as such. the claim of compensation of the plaintiff for the improvement works alleged to have been done during pendency of the suit is altogether unacceptable.
21. It appears that while delivering the impugned judgment the learned Joint District Judge opined that as per observations of the higher courts made in Civil Revision No.905 of 1986 and Leave Petition No.137 of 1985 (Exhibits-6 & 7) the plaintiff is entitled to receive compensation. This finding of the trial court is palpably wrong and perfunctory in nature as nowhere in their judgments this Court as well as the Appellate Division made any such observations. Therefore, we are unable to go along with the above findings of the trial court and, as such. the same is liable to be scrapped. Furthermore, on a query by us, the learned Advocate for the plaintiff-respondent also finds it difficult to support the aforesaid findings of the trial court.
22. During making submissions, Mr Wadud Bhuiyan, learned Advocate for the plaintiff respondent tried his best to impress upon the court by saying that since the plaintiff-respondent is a bonafide holder of the land in dispute under defective title and as admittedly he did a lot of improvement works thereon as such he is entitled to get compensation for the above improvement costs which has been duly reflected in the unassailed report of the advocate commissioner, though he is yet to be evicted from the suit land. But on the face of the evidence record and in view of the facts and circumstances of the case we are unable to see eye to eye with the above view expressed by Mr Bhuiyan inasmuch as we have already noticed that the plaintiff had full knowledge about the contract of sale of the defendant-appellants predecessor. namely, Abdul Mannan and that the alleged improvement works were done by the plaintiff for the purpose of his own use and comfort and that too during the pendency of the earlier suit as well as the instant one between the parties taking the risk on his shoulder. Therefore, under no circumstances the plaintiff can be regarded as a bonafide holder of the suit land. On top of that, the plaintiff is still in possession of the suit land and he is yet to be evicted. Keeping in view the language used is section 51 of the Act, we have no hesitation but to hold that a person intended to be evicted from a land cannot maintain a suit for the alleged improvement costs under the section, rather his right to sue would accrue only after actual
eviction is made.
23. It appears that the aforesaid aspects of the case have altogether escaped the notice of the learned trial judge who, being goaded by some unfounded observations as well as without construing the true intent of Section 51 of the Act, most illegally decreed the suit in favour of the plaintiff by the impugned judgment dated 23/8/2011 which, as it appears, has failed to withstand the test of legal scrutiny and therefore, the same is liable to be knocked-down.
24. In the light of our aforementioned observations and the decisions made thereunder, we are impelled to hold that the appeal merits consideration and therefore, it must succeed.
25. Accordingly, the appeal is allowed on contest without any order as to costs. The judgment and decree impugned against herein is set aside and the original suit being Title Suit No.
17 of 1985 is dismissed on contest.
26. Since the appeal is allowed, the connected Rule being Civil Rule No.553 (F) of 2013 is accordingly disposed of.
Send down the lower Court's record along with a copy of the judgment forthwith.