PANDHARINATH BHAGUJI Vs. DASHARATH GENU

JUDGEMENT

(1.) THIS is a revisional application by the defendant and on his behalf Mr. Rele contends that the finding of the lower appellate Court that the transaction in dispute is a mortgage is based on no legal evidence at all. It is well settled that a party Invoking the re-visional jurisdiction of this Court is entitled to succeed even on questions of fact if the party is able to establish his contention that the finding of fact marie by the lower appellate Court is really and truly not based on any legal evidence on the record. In the present case. I am satisfied that Mr. Rele has been able to make good his point that the finding of the lower appellate Court which is against him on the question of the adequacy of the price is based on no legal evidence.

(2.) THE transaction in dispute took place on 21-6-1920. The land in question is survey No. 203 at Ghodegaon. It admeasures 15 acres and 16 gunthas and is assessed at Rs. 14/ -. This land was sold by Dasharath and Tanhabai to Bhaguji the father of the petitioner for Rs. 600/ -. In the pre- sent suit, which was filed by the opponents in 1950 under Section I5d of the Dekkhan Act, it was alleged that the transaction was a mortgage and a declaration and accounts were claimed upon that footing. The learned trial Judge held that the transaction was a sale and so the suit was dismissed. The learned appellate Judge has taken the view that the transaction is a mortgage, with the result that the decree of the trial Court has been set aside and the matter has been sent back for taking accounts on the mortgage. It is this order which is the subject-matter of the present revisional application. Both the Courts have found concurrently that between the parties to the transaction there-were no previous dealings at all. In other words, the relationship of debtor and creditor, which is one of the tests applied in dealing with such transactions is absent in the present case. Both the Courts have found that possession was given over to the purchaser soon after the transaction took place. The lower appellate Court was inclined to take the view that in the matter of delivery of possession some obstruction must have been offered by the vendors. Even so, he held that at least from July 1921 possession had remained with the purchaser throughout. In other words, two out of the three tests have been answered by both the Courts in favour of the petitioner. The trial Court found that the consideration of Rs. 600/- was in fact paid; the appellate Court has agreed with this view. The trial Court held that Rs. 600/- was an adequate consideration; and the appellate Court has differed from this conclusion. It is because the appellate Court thought that the consideration of Rs. 600/- was grossly inadequate that it came to the conclusion that the transaction was a mortgage and it is this finding which is challenged before me by Mr. Rele as based on no legal evidence.

(3.) THE first reason given by the learned appellate Judge in coming to this conclusion is that the sale-deed itself was apparently produced in criminal proceedings in which the purchaser was an accused person. We know nothing about the said criminal proceedings, but the learned Judge thought that since the sale-deed had been produced the criminal proceedings must have been in respect of the land itself. Mr. Rele contends that this is a far-fetched inference to draw. There is some force in this argument; but even if it is assumed that soon after the sale transaction took place it gave rise to a dispute between the parties in the matter of delivery of possession, that would only show that the vendors were reluctant to part with possession. But when the land was let out by the purchaser to his tenant Rakhmaji, Rakhmaji obtained an order of injunction from the vahiwat Court in 1921 and that emphasizes the fact that at the time when the vahiwat suit was filed Rakhmaji successfully proved that he was in possession of the land. Thus even if the far-fetched inference drawn by the lower appellate Court from the endorsement borne by the sale-deed is taken into account, it can have no material bearing on the determination of the value of the land.