JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of C.P.C., against the judgment and decree in A.S.No.18 of 2010 dated 31.03.2011 on the file of the learned Subordinate Judge, Nilgiris at Udhagamandalam, confirming the judgment and decree made in O.S.No.25 of 2004 dated 26.06.2008 on the file of the learned District Munsif, Kotagiri.)

1. The defeated defendant is the appellant herein.

2(a). The respondent/plaintiff has filed a suit in O.S.No.25 of 2004 before the learned District Munsif, Kotagiri, seeking recovery of money on the ground that the amount paid under Ex.A1/agreement, dated 11.03.1993, entered into between the appellant and the respondent could not be fortified and asked for re-fund of the amount.

(b). During the course of trial, on behalf of the plaintiff, he examined himself as P.W.1 and Exs.A1 to A4 were marked and on behalf of the defendant, defendant examined himself as D.W.1 and no document was marked on his side.

(c) After perusing both oral and documentary evidence adduced by the plaintiff, the trial Court has decreed the suit. Aggrieved against the said decree passed in the suit, the defendant has filed an appeal suit in A.S.No.18 of 2010 before the learned Subordinate Judge, Nilgiris, Udhagamandalam and the learned Judge, by an order dated 31.03.2011, has dismissed the said appeal.

3. It is the specific plea of the appellant/defendant that the suit claim is barred by limitation and relied upon clause-VI of the agreement, which was entered between the parties under Ex.A1 that for cutting the trees, the District Collector has rejected permission in the year 1995 and thereafter, the suit was instituted in the year 2003 and it is out of limitation. The plea of limitation raised by the appellant/defendant stands negatived by both the Courts below and hence, the Second Appeal.

4. In this Second Appeal, notice of motion was ordered by this Court on 06.02.2012. The respondent entered appearance through his Advocate. Additional typed set of papers have also been filed.

5. After hearing the learned counsel for the appellant/defendant, following substantial questions of law are framed:-

“1. Whether the respondent could lay a suit 25.09.2003 in respect of an ex-gratia payment of Rs.25,000/- on 11.03.1993 under Ex.A1?

2. Whether the ex-gratia payment of Rs.25,000/- by the appellant to the respondent on 08.07.2003 i.e., almost 10 years after the monies were advanced on 11.03.1993 under Ex.A1 could be construed as an acknowledgement of debt in the absence of any express acknowledgement of debt and/or promise to pay to enable the respondent to lay the suit on 25.09.2003?

3. Whether the Courts below erred in finding that there is a nexus between the agreement dated 15.10.1991 between appellant with a third party, Mother Superior, Nazareth Convent, and the agreement dated 11.03.1993 between the appellant and the respondent under Ex.A1 when the agreement dated 15.10.1991 of the appellant with the Nazareth Convent was not even a part of the record or the said Nazareth Convent were not even arrayed a party?

4. Whether the appellant was estopped in pleading limitation merely because of the ex-gratia payment made by him on 08.07.2003 to the respondent much after the expiry of 3 years from the date of the agreement dated 11.03.1993?”

6. The learned counsel for the respondent/plaintiff relied upon the substantial questions of law.

7. The learned counsel for the appellant/defendant would contend that both the Courts below have committed an error without looking into the clause VI of Ex.A1/agreement entered into between the appellant/defendant and respondent/plaintiff. Further, he would contend that P.W.1, in the cross examination, has admitted that even in the year 1995, the Revenue Authority/District Collector has rejected the permission to cut the Eucalyptus trees and hence, the suit is hopelessly barred by limitation.

8. The case of the respondent/plaintiff, as projected in the evidence given by him as P.W.1, is that an amou