P. Buchi Reddy and others Vs Ananthula Sudhakar

1. This appeal by the plaintiffs is preferred against the judgment and decree dated 9-12-1991 in A.S. No. 14 of 1986 on the file of the Additional District Judge, Warangal, reversing the judgment and decree dated 31-5-1985 passed in OS No.279 of 1978 on the file Principal District Munsiff, Warangal. The parties herein are being referred as they are arrayed in the suit.

2. The appellants-plaintiffs filed the said suit OS No.279 of 1978 for the relief of permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property which consists of open plots bearing No. 13/776/13 measuring 110 Sq. yards and 13/776/C measuring 187 Sq. yards situated within the municipal limits of Warangal. The case of the plaintiffs is that the 1st plaintiff purchased the plot bearing 13/776/B and the 2nd plaintiff purchased the plot 13/776/E from one Rukmitri Bai (PW4) for valid consideration of Rs.600/- and Rs.1,000/-respectively under two registered sale-deeds Exs.Al and A2 dated 9-12-1968 and from the date of purchase the plaintiffs have been in possession and enjoyment of the said plots, that after purchase the said plots have been mutated in their names in the municipal records and that the defendant who has no interest or right in the suit plots is trying to interfere with their possession. Hence the plaintiffs filed the suit for the above said relief. Resisting the claim of the plaintiffs the defendants filed the written statement contending that the averments in the plaint are false that the suit plots belong to K. V. Damodar Rao (DW2) and the defendant purchased the same under the registered sale-deed (the original of Ex.Bl) dated 7-1-1977 and he was put in possession of the same and that after purchase he approached Municipality for permission for construction of a building and permission was granted and that he obtained a loan by mortgaging the land for construction of the house and that when he started construction the plaintiffs obstructed and that thereafter the plaintiffs filed the suit, and that the suit is not maintainable as the plaintiffs'' vendor RukwniniBai had no right in the suit property. The trial Court settled the following issues for trial.

1. Whether the plaintiffs are in exclusive possession of the suit property, (house plots);

2. Whether the defendant has interfered with the possession of the plaintiffs over the suit plots; and

3. Whether the plaintiffs are entitled for permanent injunction.

During the course of trial PWs.l to 5 were examined and Exs.Al to A14 were marked on behalf of the plaintiffs. The defendant examined DWs.l and 2 and Exs.Bf to Bl 1 were marked on behalf of the defendant, and Exs.Xl and X2 were marked as they were produced by the witness. The-2nd plaintiff and the 1st plaintiff got themselves examined as PWs.l and 2 respectively The plaintiffs'' vendor Rukumini Bai was examined as PW4. The defendant got himself examined as DW1 and his vendor was examined as DW2. On a consideration of the oral and documentary evidence placed before him, the learned District Munsiff held on issue number one that the plaintiffs have been in possession and enjoyment of the suit property as purchasers from Rukumini Bai on the date of the filing of the suit; and on issue No.2 that the defendant had interfered with the possession of the plaintiffs and on issue No.3 that the plaintiffs are entitled for permanent injunction as prayed for and consequently the plaintiffs'' suit was decreed with costs. Aggrieved of that judgment and decree the defendant preferred the appeal AS 14 of 1983 to the District Court. The learned lower appellate Judge on reappraisal of the oral and documentary evidence on record reversed the findings of the trial Court. The lower appellate Court held that the plaintiffs suit for mere injunction without seeking declaration of title is not maintainable that it was the defendant who was in possession of the suit plots on the date of the filing of the suit and as such the plaintiffs are not entitled for permanent injunction. Consequently the lower appellate allowed the appeal with costs and set aside the judgment and decree passed by the trial Court and dismissed the suit. Aggrieved by the judgment of the lower appellate Court the plaintiffs have come with this second appeal.

3. Heard the Counsel on either side. Learned Counsel for the appellants-plaintiffs took me through the impugned Judgment and also that of the trial Court and the evidence on record.

4. The learned Counsel for the appellants raised the following contentions:

(i) The lower appellate Court erred in holding that the plaintiffs'' suit for mere injunction without seeking declaration of title is not maintainable;

(ii) The plaintiffs'' vendor Rukmini Bai was the ostensible owner of the suit property having got the same from her brother Damodara Rao (DW2) towards Pasupuhtmkwn in the year 1960-61 and since then she had been in possession and enjoyment of the same and that he said Damodara Rao (DW2) made the plaintiffs and others believe that his sister Rukmini Bai had saleable interest in that property and made them to purchase for valid consideration and that he also attested the sale-deeds (Exs.Al and A2) executed by Rukmini Bai in favour of the plaintiffs;

(iii)K.V. Damodara Rao (DW2) had no subsisting right or interest in the suit property so as to alienate the same in favour of the defendant under the original of Ex.Bl as he had already gifted the same to his sister Ruhnini Bai towards Pasupukumkum and thus the defendant gets no title to the suit property;

(iv)The plaintiffs were put in possession of the suit property since the date of their purchase under Exs.Al and A2 and that they cannot be dispossessed by the defendant; who had no better title than them;

(v) The lower appellate Court erred in holding that the oral gift of the suit property by Damodara Rao in favour of her sister Rukmini Bai is not recognised in law and as such Rukmini Bai gets no title to the suit property;

(vi) The lower appellate Court failed to appreciate the oral and documentary evidence adduced on behalf of the plaintiffs in proper perspective and came to., wrong conclusion that the plaintiffs were not in possession of the suit property and that the plaintiffs vendor Rukmini Bai had no title to the suit property to alienate the same in favour of the plaintiffs.

5. The learned Counsel for the espondent-defendant, on the other hand, submitted his arguments in support of the impugned judgment of the lower appellate Court.

6. The substantial questions of law involved in this matter are as under:

(i) Whether the plaintiffs'' suit for permanent injunction without seeking declaration of title is maintainable under law?

(ii) Whether the acts and deeds of Damodara Rao (DW2) made the plaintiffs to believe that Rukmini Bai is the ostensible owner of the suit property and thus made them to purchase the suit property for valid consideration and, therefore, the provisions u/s 41 of the Transfer of Property Act are attracted and as such DW2 could not pass on a better title to the defendant under Rx.Bl?

(iii) Whether the alleged oral gift of the suit property in favour of Rukniini Bai by DW2 towards Pasupakumkum is legal, valid and binding on DW2 though effected in contravention of the provisions u/s 123 of the Transfer of Property Act?

7. The plaintiffs filed the suit for bare injunction restraining the defendant and his men from interfering with their peaceful possession and enjoyment of the suit property. The suit property consists of two vacant house plots situated at Matwada in Warangal Town within its municipal limits. The first plot belonging to the first plaintiff bears the municipal number 13/776/B measuring 110 Sq. yards within specific boundaries. The second plot belonging to the second plaintiff bears the municipal number 13/776/C measuring 187 Sq. yards situated adjoining the first plot, within specific boundaries. The plaintiffs 1 and 2 purchased these plots from one Rukmini Bai under two registered sale-deeds, Exs.AI and A2, on 9-12-1968 for a valid consideration of Rs.600/- and Rs.1,000/-respectively. It is the case of the plaintiffs that they were put in possession of the suit plots on the date of their purchase and continued to be in possession and enjoyment of the same. The defendant also purchased an open house plot measuring 300 Sq. yards from K.V. Damodara Rao (DW2) for a consideration of Rs.5,400/- on 7-1-1977 under a registered sale-deed - the original of Ex.Bl within specific boundaries. On the strength of this sale-deed in his favour, the defendant tried to dig the foundation for raising construction of a house in the month ''of May, 1978 and on coming to know of it the plaintiffs filed the suit for permanent injunction restraining the defendant and his men from interfering with their possession and enjoyment of the suit land. Thus, the plaintiffs and the defendant are claiming the suit property, though there is some variation with respect to the boundaries mentioned in the sale-deeds of the defendant and that of the plaintiffs. Their claim is with respect to the suit house plots only. The plaintiffs are claiming title and possession from their vcndor-Rukmini Bai (PW4) while the defendant is claiming title and possession through his vendor-Damodara Rao (DW2). As could be seen from the registered sale-deeds, Exs.AI, A2 and Bl, the vendors have not mentioned their source of title to the suit property in those documents. It is simply asserted that they are executing the said sale- deeds claiming as absolute owners of the same. It is also significant to note that neither the plaintiffs nor the defendant have produced any title deeds of their vendors into Court.

8. Rukmini Bai-the vendor of the plaintiffs examined as PW4, deposed that she got title to the suit property by virtue of the gift in her favour towards Pasupukumkum by her brother Damodam Rao (DW2) in the year 1960-61; that it is a oral gift and that she had been in possession and enjoyment of the same since the date of gift in her favour. Damodara Rao-the vendor of the defendant examined as DW2 deposed that the suit site forms part of the larger extent of land purchased by him about more than 50 years ago and that he had been in possession and enjoyment of the same. He also denied the suggestion made to him that he gifted the suit property in favour of his shter-Rukmim Bai towards Pasupukumkum. The lower appellate Court held that even if the alleged gift by DW2 in favour of his sister-PW4 is true, it is invalid in law as it is not written and registered. In para 8 of its judgment, the lower appellate Court observes thus:

"As the gift by a Hindu of immovable property worth more than Rs. 100/- has to be compulsorily registered and the judgment already referred above prove that even a gift at the time of marriage by way of Pasupukumkum to the daughters either at the time of marriage or after are in valid if there is no written document and it is not registered and oral gift at the time of marriage is invalid. As such, in the eye of law the alleged gift by Damodara Rao of the vacant land in favour of Rukmini Bai is not registered and as such it is invalid in law and it does not pass title to Rukmini Bai."

This reasoning of the lower appellate Court is contrary to the decision of Division Bench of this Court in Bhuvaneswura Nayak Santoshrai v. Special Tahsildar, Land Reforms, Tekkali, Srikakuiam District 1979 (2) APLJ 421. The first question that was referred to the Division Bench in that case was "whether a gift of land made in favour of daughter or sister towards Pasupukumhtm as marriage provision requires to be conveyed by a registered document". The Division Bench, after elaborately considering the case law on the point including the decision in Allam Gangadhara Rao Vs. Gollapalli Gangarao, , relied on by the lower appellate Court observed in para 5 thus:

"What becomes manifest from the conspectus of above case law is that a daughter under Hindu Law had at the time of ''Maurf a right to share in the father''s property along with her brothers. After a considerable passage of time, the ultimate remnant is that a father is under an obligation to maintain her within the meaning of Section 3 of the Adoptions and Maintenance Act which includes the reasonable expenses of her marriage and therefore any property movable or immovable, given to her for or at the time of marriage cannot be termed as a ''gift'' within the meaning of Section 122 of the Transfer of Property Act as the essential ingredients of gift are conspicuous by their absence in this transaction of giving the property to the daughter by way of "Pasupukumkuma" which is both involuntary as well as for consideration. Once the said transaction is taken out of the ambit of Section 122 of the Transfer of Property Act, it is not at all obligatory that the said document, if it is in writing, requires any registration within the meaning of Section 123 of the Transfer of Property Act and u/s 17 of the Registration Act. In fact, it is quite apparent that the transaction of giving away the property by way of "Pasupukwnkuma" could very well be done orally and if any instrument in writing has been brought into existence the same does not require any registration as the said instrument can be used for the proof of transaction by way of evidence."

The learned Counsel for the respondent-defendant failed to produce any authority over-ruling the decision of the Division Bench or a decision of the Supreme Court contrary to the view expressed in this decision. Hence, the decision of the Division Bench is binding on me and therefore it has to be held that if in case the plaintiffs succeed in establishing that DW2 had gifted this property in favour of PW4 orally towards her Pasupukumkum it is valid in law and PW4 gets valid title for the same.

9. The next aspect to be considered is how far the plaintiffs have established that DW2 orally gifted the suit property in favour of PW4 who is her sister towards Pasupukumkum and whether PW4 had exercised the rights of ownership over the property that was gifted to her? PW4 deposed in her examination-in-chief thus:

"The suit land and other plots of land were given to me towards ''Ada Bidda Pasupvkumkuma'' by brother Sri K. V. Damodara Rao. My brother Sri K. V, Damodara Rao and myself sold the suit land and plots of land which I got towards ''Pasupukumkuma''. The settlement of sale terms has taken place at Warangal as well as at Hyderabad. My brother K.V. Damodara Rao had no right, title or interest over the plots of land which he gave to me towards '' Pasupukumkwna''."

In her cross-examination, PW4 stated that "the open land was given to me towards ''''fasupukumkumff by K. V. Damodara Rao. The said open land extended to the boundary line of Smt. Tara Bayamma''s House. I cannot give the extent of the vacant land adjacent to the above said houses. The said vacant land was given to me towards '' Pasupukwnkumd by my brother K. V, Damodara Rao. There was no special occasion for that. No land was given to my other sister. They were given other things. The said land was given to me in the year 1960-61 and it is not evidenced by any document. I cannot give the boundaries of land given to me at this point of time." She further stated that she exercised the rights of ownership over the suit land and that she sold away the same to others including the plaintiffs. PW4 further stated in her cross-examination thus:

"I sold the land given to me to the plaintiffs P. Malla Reddy, Vadala Ramachandram and one Venn. There is ( no other vacant land left after the above sale."

PWs.3 and 5 are the purchasers referred to by PW4 with respect to the house sites under Exs.Xl and X2. Thus, it is clear from the testimony of PW4 that DW2 had orally gifted some vacant land site belonging him to PW4 towards ''Pasupukunikuma'' and she alienated the same through the negotiations and settlement of price by DW2 to the plaintiffs, PW3, PW5 and one Venu. PW3-Afo/foReddy also deposed that he purchased a plot under Ex.Xl from Rukmini Bai (PW4) and that he negotiated to purchase of the said land through Damodara Rao (DW2) and that DW2 also attested the registered sale-deed, Ex.Xl. PW3 further stated that before the purchase of plot under Ex.X 1, DW2 informed him that plot belongs to his sister-Ruffmini Bai and that she was given that plot by her father. It is also in the evidence of PW3 that he negotiated with DW2 on behalf of the plaintiffs for the purchase of the suit plots and that DW2 arranged for purchase of those plots, that himself and DW2 went to Hyderabad and paid the consideration to PW4 and that PW4 and DW2 came to Hanumukonda and executed the registered sale-deeds, Exs.Al and A2 in favour of the plaintiffs and that DW2 also attested Exs.Al and A2 along with him. PW5-Ramachandram is another purchaser of a house plot from PW4 through DW2. It is in the evidence of PW5 that he purchased about 199 Sq. yards from PW4 through DW2 and that he paid the advance amount to DW2 and he obtained the agreement of sale, Ex.X2 when he paid the advance of Rs.l,560/-,and that it bears the signature of DW2. He farther deposed that subsequently he obtained the registered sale-deed and constructed a house on the site purchased by him and that his daughter is residing in that house. The plaintiffs examined as PWs. 1 and 2 have also deposed that they purchased the suit lands from Rnkmini Saithat they negotiated with DW2 for the settlement of price through PW3-Malla Reddy and that DW2 was also present at the time of execution of sale-deeds, Exs.AI and A2 and identified the parties before the Sub-Registrar at the time of registration and also attested the documents, Exs.AI and A2. Thus, according to them, DW2 is fully aware of the suit transactions and it was he who prompted them to purchase the suit land from PW4 giving an impression that Rukmini Bai had saleable interest in the suit property.

10. As against this evidence adduced on behalf of the plaintiffs, DWs.l and 2 were examined on behalf of the defendant. The defendant got himself examined as DW1 and he deposed that he purchased 300 Sq. yards of open site from DW2 under the original of Ex.Bl, that he had no knowledge about the alleged oral gift of the suit land by DW2 in favour of PW4. He denied the suggestion about the said oral gift. Moreover, it is an admitted fact that the defendant''s mother is the sister of the wife of DW2. Thus, both of them are closely related. Now, I will refer to the evidence of DW2. He deposed that the municipal number of 13/775 relates to his house and municipal number 13/776 relates to open site; that he purchased open site about 50 years ago from Housala Brahmayya and later on he constructed the house bearing number 13/775; that he gifted some portion of his house and house site to his brother- MuraUdhar; that btother-Muralidhar is no more and that the sons of his brother are alive. The crucial admissions made by DW2 in his cross-examination are that Ramachandra (PW5), Malla Reddy (PWS) and one Venn have purchased house sites from out of the vacant land bearing number 13/776 and that PW5 and Venu constructed houses over those sites and he claims that he did not know from whom they purchased those house plots. But he admits that he gave open sites which were purchased by PWs.3, 5 and Venu to his brother-Muralidhar and that he does not know who had sold those plots to them. DW2 also denied the suggestion made to him that this vacant site bearing number 13/776 was orally gifted by him to PW4 and that he sold the said sites to the plaintiffs, PWs.3, 5 and Venu. He also denied the suggestion that he attested Exs.Al, A2, XI and X2. He claims that he cannot sign in English and that only he signs in Telugu as ''K.V. Damodar Rao''. He also admits that he signed in the original of Ex.Bl as ''K.V. Damodar Rao1 and not as 1K.V. Damodar1, It is common knowledge that men may lie to suit their convenience by the established facts and circumstances when and properly analysed will never lie. In the instant case, to suit his convenience DW2 is disputing his own signature as attestor in Exs.AI, A2, XI and X2. The attestation of these documents by DW2 has been spoken to by the plaintiffs (PWs.l and 2), PWs.3 and 5. PWs.3 and 5 are independent witnesses and there is no reason for them to speak falsehood against DW2. PW4 is his own sister and there is no reason for her to depose falsely against DW2. It is in the positive evidence of PWs.3, 4 and 5 that DW2 attested these documents at (he time of execution by PW4. He also figured as identifying witness at the time of execution of the documents, Exs.Al, A2, XI and X2 before the registering authorities. Further, if the contention of DW2 that he gave the open site bearing number 13/776 to his brother-Muralidhar, it is not known how PW4 could sell the said open site in favour of PWs.3,5 and one Venu. DW2 admits that PW5 and Venn have already constructed their houses over the said site. It is obvious that to suit his convenience DW2 is exhibiting ignorance with regard to the person who executed those sale-deeds in favour of PWs.3, 5 and Venn and he also deliberately telling a lie that he did not attest the documents Ex''.Al, A2, X1 andX2.

11. Further, it is also in the evidence of PWs.l to 5 that it was through UW2 they negotiated for the purchase of the sites under Exs.Al, A2, X1 and X2 from PW4. Admittedly, DW2 resides at Warangal while his sister-PW4 resides at Hyderabad. It is in the evidence of PW3 that himself and DW2 came over to Hyderabad and negotiated with PW4 in her house for the purchase of the suit site and also the site under Ex.X 1. PW5 also stated that he negotiated for the purchase of these sites under Ex.X2 through DW2 and he paid the advance amount also to DW2 after obtaining his signature under Ex.X2. It is clear from the evidence of these witnesses that DW2 projected PW4 as ostensible owner having saleable interest in the suit property and made the plaintiffs and others to purchase the open site for valid consideration from PW4. It is only with the consent of DW2 the plaintiffs have purchased the suit sites for valid consideration. Thus, the conduct and acts of DW2 in finalising the suit transaction by negotiating with PW4 in favour of the plaintiffs attracts the provisions u/s 41 of the Transfer of Property Act. As such, it is not open for him now to contend that the transferor i.e., PW4 is not the owner and he himself is the owner of the suit property. All the ingredients of Section 41 of the Transfer of Property Act have been satisfied in this case. DW2 himself had created an impression in the minds of the purchasers including the plaintiffs, PWs.3, 5 that the transferor-PW4 is the ostensible qvvner of the site by giving his consent for the said transfers. Therefore, it is not open for DW2 now to contend that PW4 was not the ostensible owner and that she was not entitled to sell the same to the plaintiffs. PW4 had exercised the rights of ownership over the disputed site by alienating the same and that she became such a owner by virtue of the oral gift effected by DW2 in her favour towards Pasupukumkuma, Thus, DW2 had ho existing rights over the site sold in favour of the defendant under the original of Bx.Bl on 7-1-1977 as he had already gifted the same to PW4 in the year 1960-61 and the plaintiffs got the title by virtue of the sale in their favour under Exs.Al and A2 from PW4 who was the ostensible owner of the same. Thus, the defendant has no better title than the plaintiffs over the suit property.

12. Admittedly, the suit plols are vacant. * It is in the evidence of PWs.l and 2 that those plots have been mutated in their names in the municipal records by virtue of the sales in their favour under Exs.Al and A2. They have also paid property tax with respect to those house plots. Exs.A3 to A11 are the property tax receipts standing in the name of the plaintiffs. It is no doubt true that they are of the year 1978 subsequent to the execution ofEx.Bl in favour of the defendant. On behalf of the defendant also Exs.B2 to B1I were marked. Under Ex.B2 the defendant seems to have mortgaged the suit land in favour of the Government when he obtained loan for construction of a house. Under Ex.B3 he obtained permission from Municipality for construction of the house and Ex.B4 is the plan attached to Ex.B3. The defendant also relied on Exs.B6 to B11 the receipts for payment of property tax issued in the name of DW2. They have been issued with respect to municipal numbers 13/775 and 13/776. It is not in dispute that DW2 is the owner of house bearing municipal number 13/775 and he also possess some vacant site in municipal number 13/776. Therefore, these documents, Ex.B6 to Bll do not in any way help to establish possession of DW2 with respect to the suit sites. Admittedly, as earlier stated, the suit sites are vacant plots and the plaintiffs purchased the same from the rightful owner PW4 and as such they get a valid title. When the plaintiffs liave established their title for the vacant site, possession is presumed with them on the principle that possession follows title. Therefore, it follows that the plaintiffs were in possession of the suit property on the date of filing of the suit by virtue of the title deeds, Exs.A1 and A2. As such, the plaintiffs are entitled for the relief of injunction as prayed for in their suit.

13. There is also no substance in the contention raised by the learned Counsel for the respondent that the plaintiffs'' suit is not maintainable without seeking for declaration of tide. The learned Counsel for the respondent also contends that the defendant disputed the title of the plaintiffs with respect to the suit land and in spite of such denial of title, the plaintiffs did not choose to get the plaint amended seeking declaration of title. It is not the iaw that the plaintiff should get his plaint amended as soon as the plaintiffs title is disputed in the written statement filed on behalf of the defendant in a suit for injunction filed u/s 38 of the Specific Relief Act It is well settled that in a suit for injunction the primary question to be considered is one of possession on the date of filing of the suit. Of course, the question of title also may be gone into incidentally. It is also well settled that a person in possession, though without title, can resist interference from another who has no better title than himself and get injunction. Section 38 of the Specific Relief Act, 1963 deals with the grant of perpetual injunction. Under sub-section (3) of Section 38 a perpetual injunction may be granted to the plaintiff when the defendant invades or threatens to invade the plaintiffs right to or enjoyment of property where the invasion is such that compensation in money would not afford adequate relief and where the injunction is necessary to prevent multiplicity of judicial proceedings. In Swaminatha v. Namyana Swamy, AIR 1936 Madras 936, it is held that where the allegations of the plaintiff are that he is in lawful possession of the properties and that his possession is threatened to be interfered by the defendant, plaintiff is entitled to sue for a mere injunction without adding prayer for declaration of his rights. A Division Bench of Bombay High Court in Fakirbhai Bhagwandas and Another Vs. Maganlal Haribhai and Another, , held that it is not necessary for the person claiming injunction to prove his title to the suit land and that it would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person who had no title whatsoever.

14. In M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, , the Apex Court also held that the plaintiff can on the strength of his possession resist interference from the persons who had no better title than himself to the suit property. In that case, the Apex Court having found that the plaintiff failed to establish his title to the suit property but the plaintiff was found to be in possession on the date of filing of the suit granted injunction in favour of the plaintiff.

15. In Chepana Peda Appalaswamy Vs. Chepana Appalanaidu and Others, , my learned brother C. V.N. Sastry, J., also took the same view that a suit for bare injunction without a prayer for declaration of title is maintainable.

16. In this context, it may be necessary to refer to the provision u/s 38 of the Specific Relief Act, 1963, which deals with declaratory decrees. u/s 34 of the said Act a mere suit for declaration does not lie when the consequential relief like injunction is available. But u/s 38 the relief of injunction can be granted even if no declaratory relief is expressly prayed for. Therefore, on a reading of these two Sections it is clear that a suit for bare injunction is maintainable without a prayer for declaration of title.

17. In the light of my above discussion, the impugned judgment of the lower appellate Court in AS No.14 of 1986 is liable to be set aside and the appeal has to be allowed.

18. In the result, the appeal is allowed with costs. The judgment and decree in AS No. 14 of 1986 under appeal are set aside. The Judgment and decree of the trial Court in OS No.279 of 1978 are resorted.