The suit was filed beyond the period of limitation prescribed under Article 58 and 59 of the Limitation Act, and was also hit by Section 34 of the Specific Relief Act.

B.S. INDRAKALA, J.—The appellant-plaintiff herein filed O.S. No. 374/87 on the file of the Additional Civil Judge (Jr. Dn.), seeking a declaration that the sale deed executed by him dated 20.8.1984 is nominal, void, never acted upon and sought cancellation of the same and also for consequential relief of permanent injunction restraining the defendant from alienating the property mentioned in the schedule to the plaint.

2. The said suit was partly decreed holding that the sale deed executed by the plaintiff in favour of the defendant was nominal, void and never acted upon by the judgment dated 21.10.2002. Aggrieved by the said judgment, the defendant preferred R.A. No. 75/02 on the file of the FTC, Kadur. The said appeal was allowed setting aside the judgment passed in the original suit thereby dismissing the said suit O.S. No. 374/87.

3. Aggrieved by the said judgment passed in RA. No. 75/02 the plaintiff since deceased represented by his legal representatives filed the present second appeal inter-alia contending amongst other grounds that the first appellate Court erred in not appreciating the evidence in proper perspective, has further contended that the substantial question of law involved in this appeal is as to whether the appreciation of evidence and documents by the first appellate Court is perverse and the whether first appellate Court was justified in reversing the judgment and decree of the trial Court etc.

4. For the sake of convenience, the parties herein are referred to by their respective rank as appellant-plaintiff and respondent-defendant as arrayed before the Court of the first instance.

5. O.S. No. 374/94 was filed by the plaintiff alleging that as his brother who was unemployed wanted to purchase a lorry during February 1984, he entered into an agreement with one B.K. Ibrahim of Mangalore to purchase the lorry bearing Regn. No. CNX 6003 for sale consideration of Rs. 2,00,000/-; he paid Rs. 20,000/- as advance on the date of the agreement and took possession of the said lorry from him. Further, it is contended that the balance of sale consideration of Rs. 40,000/-was to be paid by the end August 1984 and the remaining Rs. 1,40,000/- to be paid by the plaintiff towards the loan installments of the hire purchase account with Canara Bank.

6. It is specifically alleged that the plaintiff was running short of money; after taking possession of the lorry, his brother was running the said lorry for hire and the defendant was using the said lorry for transportation of stone from the quarry. Further it is alleged that the plaintiff approached the defendant for a loan of Rs. 25,000/- on 30.7.1984 so as to pay the balance sale consideration of the sale price of the lorry to which the defendant agreed to advance Rs. 25,000/-and got executed an on demand promissory note from the plaintiff; it was further agreed between the parties that the defendant was entitled to adjust the lorry hire charges towards the said loan and the balance if any was to be paid by the plaintiff with interest at 18% per annum. Thereafter, the defendant deducted Rs. 350/- which was due by the plaintiff as hand loan and paid loan amount of Rs. 24,650/- to the loan amount of the plaintiff by issuing cheques drawn on SBM, dated 30.7.1984 and 10.8.1984 for a sum of Rs. 17,400/- and Rs. 7,250/-respectively in favour of one B.K. Khader, the brother of the said B.K. Ibrahim. It is further stated that the said cheques were so issued at the instance of the plaintiff’s request with regard to the loan amount of Rs. 25,000/- advanced by the defendant; however, on presentation of the said cheques, the same were bounced and when the defendant enquired the plaintiff as to why the said cheques were dishonoured the plaintiff told the defendant that he needs one and half months time to adjust the amount due to unforeseen financial restraints; the defendant demanded further security of the immovable property for the aforesaid loan on the ground that the amount was