Judgment:
P.K. Jaiswal, J.
1. This second appeal is filed by the plaintiffs/appellants against the judgment and decree dated 1-9-1999 passed by the First Additional Judge to the Court of District Judge, Shivpuri in Civil Appeal No. 15-A/97, whereby learned Additional District Judge affirmed the judgment and decree dated 2-2-1996 passed by Civil Judge, Class II, Shivpuri in Civil Suit No. 1-A/81, by which Trial Court dismissed the suit of the appellants.
2. On 20-1-2004, this appeal was admitted for hearing on the following substantial question of law:
(1) Whether Nathua had right to mortgage the suit property in favour of respondent No. 1-Bank, when there was a decree for specific performance against him? and
(2) Whether the respondent No. 1 has acquired title to the suit property as he has purchased the suit property in the auction?
3. On 26-6-2007, this Court framed following additional substantial questions of law:
(i) Whether attestation of the document by a witness without proof regarding the knowledge about the contents will operate as estoppel and will debar the witness from challenging the document?
(ii) Whether, the conclusion drawn on the basis of the document (Exhs. D-3 and D-4) was illegal as these documents were never proved and simply marking the documents was not sufficient to prove the same?
(iii) Whether, the Court has acted illegally in drawing the presumption about the documents which were copies of the
original and Section 90 of Evidence Act will not apply to these documents?
4. The facts briefly stated are that the Nathua defendant No. 4 in the suit was holder of Survey No. 153 (Old Survey Nos. 151/1, 2, 3, 4, 5, 10, 11, 12, 14, 19 and 158/2, 4, 5 total area 11 bigha) total area 11 Bigha with a house, a well and trees, situated in Village Jhingura, Pargana of District Shivpuri. On 13-10-1958 he had entered into an agreement to sell the said land in favour of Jhinguria-defendant No. 6 for a sum of Rs. 2500/-. Nathua in spite of agreement to sell dated 13-10-1958 failed to execute the sale deed in favour of the defendant No. 6-Jhinguria and therefore, Jhinguria filed a suit for specific performance of contract vide Civil Suit No. 85/60 against defendant No. 4- Nathua. After service of notice defendant No. 4 Nathua failed to appear before the Trial Court and therefore, he was proceeded ex parte and ex parte judgment and decree was passed against him on 31-8-1960. Nathua on coming to know about the ex parte judgment and decree filed an application for setting aside the ex parte judgment and decree dated 31-8-1960 vide MJ.C. No. 9/60. The said application was allowed and judgment and decree dated 31-8-1960 passed in Civil Suit No. 85/60 was set aside. After setting aside of ex parte judgment the said civil suit was registered vide Civil Suit No. 169/60. The defendant No. 4 Nathua was again absent before the Trial Court, the Trial Court again proceeded ex parte against him and passed an ex parte judgment and decree on 31-7-1961 in Civil Suit No. 169/60 and decreed the suit of the defendant No. 6 Jhinguria, for specific performance of contract. On 17-12-1962 the defendant No. 6-Jhinguria put the decree into execution. On 17-8-1967 (Exh. P-2) the Executing Court issued a sale certificate under Order 21 Rule 34 of CPC, wherein on behalf of Nathua the Court executed a sale deed in favour of defendant No. 6-Jhinguria. On the basis of the sale deed the defendant No. 6 became owner and Bhumiswami of the land in dispute.
5. The defendant No. 6 thereafter sold the property to the plaintiff Prem Narayan Sharma (since deceased) by registered sale deed dated 17-5-1968 for a consideration of Rs. 9,000/- (Exh. P-3) and delivered the possession. He on the basis of sale deed dated 17-5-1968 applied for mutation of his name before the Tehsildar, Shivpuri. The Tehsildar vide order dated 20-12-1968 allowed his application for mutation in Case No. 348/67-68 and name of Prem Narayan was mutated in the Khasra Panchshala on 13-1-1969 (Exh. P-6).
6. The defendant No. 4-Nathua who was holder of the suit land with a house, a well and trees obtained a loan of Rs. 1900/- on 16-2-1966 from the Sahkari Bhumi Vikas Bank Ltd., Shivpuri and mortgaged .the said survey number in favour of the respondent No. 1-Bank. The loan amount was not paid by the defendant No. 4. The Sahkari Bhumi Vikas Bank Ltd., Shivpuri started proceedings for recovering the loan amount. The Sale Officer appointed under Section 28 of the Madhya Pradesh Sahkari Bhumi Vikas Adhiniyam, 1966 took action for auctioning the land for realising the mortgage debt.
7. Prem Narayan Sharma, who claims to be purchaser of the aforesaid land from one Jhinguria objected to the sale. His objection was that Nathua had entered into an agreement to sell the land on 13th October, 1958 for a sum of Rs. 2500/- in favour of Jhinguria. Jhinguria obtained a decree for specific performance on 31st July, 1961 and a sale deed was executed in pursuance of the said decree in favour of Jhinguria by the Court on 17th August, 1967. He purchased the land from Jhinguria on 17th May, 1978. His objection was dismissed by the Sale Officer on 13th June, 1973. Thereafter, auction of the land was held on 28-6-1973. The defendant No. 5 Rameshwardayal is the auction purchaser who purchased the suit property in auction. Prem Narayan Sharma, challenged the order dated 13th June, 1973 by which his objection was dismissed, by filing Misc. Petition No. 95/73 and prayed for quashing of the said order dated 13-6-1973 passed by the Sale Officer. On 12-7-1973 (Exh. P-12) the Division Bench of this Court admitted the petition and granted stay in favour of Prem Narayan Sharma. Later-on after hearing the learned Counsel for the parties the Division Bench of this Court vide order dated 25-11-1978 (Exh. P-13) dismissed the Misc. Petition No. 95/1973. Para 2 of order dated 25-11-1978 is relevant which reads as under:
2. We have gone through the provisions of Chapter V of the Adhiniyam with the assistance of the learned Counsel appearing for the parties. The learned Counsel for the petitioner has failed to point out any provision in the Adhiniyam or the rules made thereunder under which the objection of the petitioner that the land could not be sold by the Sale Officer was maintainable. It appears to us that the petitioner's objection can be considered by the Civil Court when the purchaser applies under Section 24 of the Adhiniyam for delivery of possession. We may mention that as provided in Sub-section (3) of Section 24, the provisions of Rules 97 to 103 of Order 21 of the Code of Civil Procedure have been made applicable to the proceedings under Section 24 of the Adhiniyam. The other alternative under which the petitioner may get his right decided is by filing independently a civil suit. In the absence of any provision in the Adhiniyam or the rules made thereunder, under which the petitioner could be object to the Sale Officer for determination of his right and title to the land, it cannot be said that the Sale Officer committed any error of jurisdiction or illegality in exercise of jurisdiction in dismissing the objection.
8. The Division Bench while dismissing the Misc. Petition observed that the objection of the Prem Narayan can be considered by the Civil Court when the purchaser applies under Section 24 of the Adhiniyam for delivery of possession. It is also observed that other alternative under which Prem Narayan Sharma may get his right decided is by filing independently a civil suit.
9. The original plaintiff Prem Narayan (since deceased) filed a suit for declaration, injunction, cancellation of auction sale in favour of defendant No. 5
Rameshwar Dayal and for refund of Rs. 5,000/- against the defendant No. 5 and other defendants.
10. The suit property undisputedly belonged to Nathua-defendant No. 4. According to the plaintiff on 13-10-1958 Nathua had entered into an agreement to sale the suit property to one Jhinguria-defendant No. 6. Since Nathua failed to execute the sale deed in accordance with the agreement to sell, Jhinguria had filed a civil suit for specific performance of the contract against Nathua, which was decreed on 31-7-1961 and a sale deed was executed on 17-8-1967 by the Court on behalf of Nathua and possession was also delivered to Jhinguria on 11-4-1968. Thereafter the name of Jhinguria was also mutated in the revenue papers in pursuance of the order made in this regard in Revenue Case No. 347/67-68/A/6 by the Tehsildar. The suit property was then sold on 17-5-1968 by Jhinguria to plaintiff. The name of the plaintiff was also mutated in the revenue papers on 13-1-1969 vide order passed by the Tehsildar in Revenue Case No. 348/67-68/A-6. The defendant No. 4-Nathua, after a decree for specific performance of the contract had no right to mortgage the suit property with the respondent No. 1-defendant No. 1 and to take loan from the bank. The plaintiff is not bound by a sale of the suit property, after decree of specific performance of the contact of sale, the transfer in favour of respondent No. 10-auction purchaser is hit by the doctrine oilis pendens and the transferee is bound by the judgment and decree dated 31-7-1961.
11. It appears that after the decision of M.P. No. 95/1973 and on 6-12-1978, the plaintiff deposited a sum of Rs. 5,000/- in accordance with the provisions of Section 20 of the M.P. Sahkari Bhumi Vikas Bank Adhiniyam (for short 'the Adhiniyam') and made a prayer for setting aside the sale. This prayer was rejected on 11-11-1979 and the sale in favour of the respondent No. 10 was confirmed on 7-3-1979 by the Sale Officer. The suit was filed by the plaintiff on 5-1-1981.
12. The respondent No. 10 and other contesting defendants in the suit filed their written statement denying the plaint allegations. The respondent No. 10 inter alia pleaded that the suit of the plaintiff was barred by time and that the Court has no jurisdiction to entertain the suit and to try it. On the basis of the pleadings of the parties, the Trial Court framed issues on the question of limitation and jurisdiction as preliminary issues and decided the same in favour of the plain tiff by order dated 13-1 -1982.
13. The respondent No. 10 challenged the said order by filing Civil Revision No. 970/1982. The said revision petition of the respondent No. 10 was dismissed on 26-7-1985 and this Court has held that the Civil Court had jurisdiction to entertain the suit. This Court observed the following in Para 9 of its order dated 26-7-1985 which reads as under:
As has been earlier stated the suit of the non-applicant No. 1 is based on his prior title over the suit property and the sale is not impeached on the ground that no one had arisen to authorise the sale or that due notice was not given on that the power was otherwise improperly or irregularly exercised. Consequently, it cannot be said that the Civil Court had no jurisdiction to entertain the suit. I am further strengthened in my view from the observations made by this Court in M.P. No. 95/1973, decided on 25-11-1978.
14. The respondent No. 10 also filed counter-claim for possession and mesne profit @ Rs. 3,000/- per year.
15. During pendency of the suit original plaintiff Prem Narayan died and his legal representatives were brought on record as appellant Nos. 1 to 7.
16. On the basis of the pleadings of the parties the Trial Court dismissed the suit of the appellants plaintiffs and decreed the counter-claim on the ground that on 6-3-1962 (Exh. D-3) and 10-5-1962 (Exh. D-4) sale deeds, executed by Nathua in favour of Sukha and again by Sukha in favour of Nathua and in both the documents Jhinguria was attesting witness and therefore, he had knowledge about the execution of sale deed by Nathua to Sukha and therefore, provisions of Section 52 of the Transfer of Property Act will not be applicable. Both the sale deeds were executed with the consent of the plaintiff-Jhinguria.
17. The appellants challenged the said judgment and decree by which suit was dismissed and counter-claim of the respondent No. 10 was allowed by filing First Appeal before the Lower Appellate Court. During pendency of the appeal defendant No. 4 Nathua died and his legal representatives were brought on record as respondent Nos. 4 to 9. The Lower Appellate Court after appreciating the evidence on record dismissed the appeal and also dismissed the counter-claim of respondent No. 10 so far as it relates to the mesne profit is concerned.
18. Shri R.D. Jain, learned Senior Counsel for the appellant submits that both the Courts below failed to consider the provisions of Section 52 of the Transfer of Property Act (for short 'the T.P. Act'). He submitted that the agreement to sell was executed by Nathua in favour of Jhinguria on 13-10-1958 and thereafter suit for specific performance was decreed on 31-7-1961 against Nathua and thereafter Nathua mortgaged the suit land in favour of the respondent No. 1 on 16-2-1966, and therefore, the said mortgage is hit by the provisions of Section 52 of the T.P. Act. He also submitted that the Courts below had failed to consider that decree dated 28-7-1961 became final in favour of the Jhinguria. He further submitted that mortgage by Nathua and sale by respondent Nos. 1 to 3 Bank was during the pendency of execution proceedings in the civil suit and failed to consider that until the suit or proceedings have been disposed off by final decree or order of complete satisfaction or discharge of such decree for order. Thus, he complete discharge of the proceedings or satisfaction of the decree was on 17-8-1967 when the sale was executed by the Court by virtue of decree dated 31-7-1961 in favour of Jhinguria and therefore any proceedings in between are hit by the provisions of Section 52 of the T.P. Act. He further submitted that the findings of the Courts below that in between Nathua sold the property by registered sale deed in favour of one Sukha on 6-3-1962 and in the said sale deed Jhinguria was one of the attesting witnesses and this sale deed was executed with the consent of the Jhinguria is totally without any pleading or proved nor the said sale deed was in respect of discharge and satisfaction of the decree passed by the Court of Competent jurisdiction on 31-6-1961. He lastly submitted that proceedings of sale initiated by respondent Nos. 1 to 3 were also during the pendency of execution proceedings and according to the provisions of Section 52 of the T.P. Act any suit or proceedings in which the right of immovable property is directly and subsequently in question the property cannot be transferred or otherwise dealt with by any party of the suit or proceedings so as to effect the right of any other party thereof under the decree or order.
19. On the other hand learned Counsel for the respondent No. 10 submitted that the respondent No. 10 has acquired title over the suit property as he purchased the suit property in auction sale on 28-6-1973 which was confirmed on 7-3-1979. He submitted that after passing of a decree for specific performance on 31-7-1961 and before execution of sale deed dated 17-8-1967 the suit property was mortgage by Nathua on 16-2-1966, but he failed to pay the loan amount and, therefore, the suit property was auctioned by the Bank and sale made in favour of respondent No. 1 was confirmed, the writ petition filed by the appellants was dismissed by this Court on 25-11-1978 (Exh. P-13), the appellants get no right, title or interest as Jhinguria had no right to transfer the suit property vide registered sale deed dated 17-5-1968 (Exh. P-3) in favour of the plaintiff. He further submitted that a decree for specific performance only declares the right of decree holder to have transfer of the property covered by the decree executed in his favour. The decree by itself does not transfer the title. It is the execution of the sale deed that transfers the property. Nathua on 16-2-1966 took a loan of Rs. 1900/- and secured the loan by mortgaging the suit property and on that date no title or interest in the immovable property was transferred to the plaintiff and on 17-8-1967 when sale deed was executed in favour of Jhinguria the Nathua had only right of equity of redemption. The said right of equity of redemption was transferred to Jhinguria and Jhinguria got nothing, but right to redemption of the mortgage loan, therefore, no title is vested in favour of the plaintiff. The Courts below have not committed any legal error in dismissing the suit of the plaintiff and decreeing the counter-claim of the respondent No. 10.
20. I have heard the arguments of the learned Counsel for the parties and perused the record of the case. From the pleadings of the parties it is not in dispute that Nathua executed an agreement on 13-10-1958 in favour of Jhinguria in respect of the suit land. The suit for specific performance of contract filed by Jhinguria was decreed on 13-7-1961. In execution proceedings sale deed in respect of the suit property was executed in favour of Jhinguria, on 17-8-1967 (Exh. P-2). On 17-5-1968 Jhinguria transferred the suit property to the original plaintiff Prem Narayan Sharma vide (Exh. P-3). The name of Prem Narayan Sharrria was mutated by the Tehsildar vide (Exh. P-5). Alter death of Prem Narayan Sharma property was inherited by his wife and her name was mutated in the revenue record. On 16-2-1966 Nathua obtained loan from the respondent No. 1 to 3 Bank and mortgage the suit land in favour of the Bank. No loan amount was paid and, therefore, Bank initiated proceedings for auctioning the property. The Sale Officer was appointed. The respondent No. 10 in auction sale purchased the suit property on 28-6-1973. He being the highest bidder, his bid was accepted and the sale made in his favour was confirmed on 7-3-1979 by the Sale Officer. Thereafter on 5-1-1981 the civil suit was filed by the plaintiff. The objection of the respondents that the suit was barred by time and that the Court had no jurisdiction to entertain the suit and to try it was dismissed by the Trial Court by deciding preliminary issues on 13-1-1982. The said dismissal order was confirmed by this Court in Civil Revision No. 970/1982 on 26-7-1985.
21. The suit property was acquired pendente lite by the respondent No. 10 after passing a decree in favour of Jhinguria, the defendant No. 10 acquirer is bound by the decree. Nathua had no right to mortgage the suit property in favour of the respondent Bank after 31-7-1961. 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 is ineffective against the doctrine. The question was considered by the Apex Court in the case of Kedarnath v. Sheonarain : [1970]2SCR204 , wherein it has been held that 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.
22. In the case of Samarendra Nath Sinha v. Krishna Kumar Nag : [1967]2SCR18 , it was observed by the Apex Court as follows:.The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it 'so must it bind the person deriving his right, title and interest from or though him. This principle is well illustrated in Radhamadhub Holder v. Manohar (1887) 15 Ind App 97, where the facts were almost similar to those in the instant case. It is true that Section 52, strictly speaking, does not apply to involuntary alienations such as Court sales but it is well established that the principle lis pendens applies to such alienations. See Nilkant v. Suresh Chandra (1885) 12 IA 171 and (1897) 24 IA 170 (PC). This ground also has no validity.
23. In view of the law laid down by the Apex Court in the case of Samarendra Nath Sinha (supra), the contention of the learned Counsel for the respondents that the sale was by auction through sale officer and the doctrine of Impendence will not apply to such sale is misconceived and the same cannot be accepted. In the present facts and circumstances of the case the suit property purchased by Jhinguria and thereafter by Prem Narayan Sharma was protected by doctrine lis pendence.
24. The Apex Court in the case of Raj Kumar v. Sardari Lal and Ors. : (2004)2SCC601 , has held that the decree passed against the defendant is available for execution against the transferee or assignee of the defendant judgment-debtor and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree without notice or leave of the Court.
25. In the case of Amit Kumar Shaw and Anr. v. Farida Khatoon and Anr. : AIR2005SC2209 , it has been held that transferee pendente lite is bound by decree passed in suit. Para 15 is relevant which reads as under:
15. Section 52 of the Transfer of Property Act is an expression of the principle 'pending a litigation nothing new should be introduced'. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This Section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present:
(1) There must be a suit or proceeding pending in a Court of competent jurisdiction.
(2) The suit or proceeding must not be collusive.
(3) The litigation must be one in which right to immovable property is directly and specifically in question.
(4) There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.
(5) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.
26. Recently the Apex Court in the case of Usha Sinha v. Dina Ram and Ors. 2008 (4) MPLJ 141, has held that purchaser of the suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a Competent Court. The doctrine of 'lis pendens' prohibits a party from dealing with the property which is the subject-matter of suit. 'Lis pendens' itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Para 24 is relevant which reads as under:
24. Rule 29 of Order XXI of the Code deals with cases wherein a suit has been instituted by the judgment-debtor against the decree-holder and has no relevance to cases of/wpendens wherein transfer of property has been effected by the judgment debtor to a third party during the pendency of proceedings. The High Court, in our opinion, rightly held that the appellant could not be said to be a 'stranger' to the suit inasmuch as she was claiming right, title and interest through defendant Nos. 4 and 5 against whom the suit was pending. She must, therefore, be presumed to be aware of the litigation which was before a Competent Court in the form of Title Suit No. 140 of 1999 instituted by a present respondent against the predecessor of the appellant. As held in Bellamy (supra), the fact that the purchaser of the property during the pendency of the proceedings had no knowledge about the suit, appeal or other proceeding is wholly immaterial and he/she cannot resist execution of decree on that ground. As observed in Silverline Forum (supra), a limited inquiry in such cases is whether the transferee is claiming his right through the judgment-debtor. In our judgment, the High Court was also right in observing that if the appellant succeeds in the suit and decree is passed in her favour, she can take appropriate proceedings in accordance with law and apply for restitution. That, however, does not preclude the decree holder from executing the decree obtained by him. Since the appellant is a purchaser pendente lite and she has no right to offer resistance or cause obstruction and as her rights have not been crystallized in a decree, Rule 102 of Order 21 of the Code comes into operation. Hence, she cannot resist execution during the pendency of the suit instituted by her. The order passed by the High Court, therefore, cannot be said to be illegal, unlawful or otherwise contrary to law.
27. In the case of Smt. Chandrakantaben v. Vadilal Bapalal Modi : [1989]2SCR232 , it has been held by the Apex Court that there is no presumption that the attesting witnesses of a document must be assumed to be aware of its contents. In the case of Badri Narayan and Ors. v. Rajabagyathammal and Ors. : (1996)7SCC101 , the Apex Court has held that the predecessor-in-interest of the respondents was an illiterate person. He put his thumb impression as an attestor on Exh. A-2. In the circumstances, the learned Single Judge held that unless it is established that the recitals in the documents were read out and explained to the said person, he cannot be deemed to have assented to them. In case of attesting by a person having interest in the subject-matter of the document of transfer must be deemed to have affirmed the contents of the documents prima facie. In other words, the rule stated is not a presumption of law nor an irrebuttable presumption. It is more in the nature of presumption of fact, whose efficacy and evidentiary value depends upon the facts of the given case.
28. The decision cited by Shri Shishir Saxena, learned Counsel for the respondent No. 10 in the case of Rameshwar Dayal v. Sahkari Bhumi Vikas Bank and Ors. 1996 RN 205, P.K. Unni v. Nirmala Industries and Ors. 1990 (II) MPWN 69, Trilokchand Jain v. Heeralal and Ors. 1978 (II) MPWN 20 and Smt. Geetabdi and Ors. v. Babulal and Ors. : AIR1990MP147 , are not applicable in the present facts and circumstances of the case.
29. For the above mentioned reasons and in view of the law laid down by the Apex Court in the case of Kedarnath (supra), I am of the considered view that the purchase by Jhinguria was protected by the doctrine of lis pendens. Nathua had no right to mortgage the suit property in favour of the respondent No. 1 Bank when there was a decree for specific performance against him and principle of lis pendens will be applicable to the subsequent purchaser, i.e., respondent No. 10, hence the question of law No. 1 is answered accordingly. The auction proceedings and thereupon the sale certificate issued in favour of respondent No. 10 is void and is not binding on the plaintiff because those proceedings were after the decree dated 31-7-1961, passed by the Civil Court in Civil Suit No. 169/60, hence the question of law No. 3 is answered accordingly. The findings of the Courts below that the sale deed (Exhs. D-3 and D-4) were executed with the consent of Jhinguria, without there being any evidence to this effect is perverse and contrary to the principles laid down by the Apex Court in the cases of Smt. Chandrakantaben (supra), Badri Narayan (supra) and Narbada Devi Gupta v. Birendra Kumar Jaiswal and Ors. : AIR2004SC175 . The conclusion drawn on the basis of Exh. D-3 and Exh. D-4 was illegal as these documents were never proved and simply marking the documents was not sufficient to prove the same. The Courts below have acted illegally in drawing the presumption about the knowledge of the execution of Exh. D-3 and Exh. D-4 by the Jhinguria and the conditions of Exh. D-3 and Exh. D-4 will not operate as an estoppel and will not debar the appellants in challenging the documents, hence the question Nos. 3,4 and 5 are answered accordingly.
30. For the above mentioned reasons, I am of the considered view that the Courts below committed legal error in dismissing the suit of the appellants. The impugned judgment and decree passed by the Court below is set aside. The suit filed by the plaintiff is accordingly decreed by answering substantial question of law in favour of the plaintiff and against the respondents.
In the result, the appeal filed by the appellants is allowed with costs throughout. Counsel fee Rs. 3000/-