KALIPADA DAS AND OTHERS Vs. NEMAI CH. DAS

JUDGEMENT

(1.) This appeal has been filed by the defendants in the original suit who lost their case in both the courts below. The Plaintiff respondent filed the original suit in the 'Munsiff s court for declaration of title, confirmation of possession and injunction in respect of the suit property, a tank with land, which he purchased from one Pagal Das who in his turn purchased the same from the defendants appellants. The defendants contended that the suit properly belonged to them all along and was in their possession, the alleged sale in favour of Pagal Das being in effect a loan transaction. They claimed that the obstensible deed of sale was executed by them against a loan of Rs. 500.00 which was the consideration money mentioned in the deed with an oral stipulation of reconveyance on paying back an amount of Rs. 650.00 including interest. In fact the appellants relied on such a reconveyance a sale deed was executed by Pagal Das in their favour after eleven years of the original sale deed out one year after the sale of the suit property in favour of the plaintiffs. Thus Pagal Das, the centre of controversy in this battle of title actually executed two deeds in respect of the self same property-one on 23.12.77 in favour of the plaintiff and the other on 9.12.78 in favour of the defendants the date of his own put chase being 14-11-67. The point of contest between the parties was whether the transfer in favour of Pagal Das was real sale or a loan transaction. Both the courts below decided the point in favour of the Plaintiff Respondent holding his title to the suit property and confirming his possession therein.

(2.) The ground of appeal is that the courts below did not apply their mind to the appellant's case and did not consider the evidence adduced in his favour which was a point of law meriting a second appeal. The appellant also raised the point that the sale in favour of Pagal Das was hit by section 44 of the Transfer of Property Act, 1882 as the disputed land was a part of viti land.

(3.) On a perusal of the judgments of the two lower courts I find that both the courts came to i he finding that the sale deed executed in favour of Pagal Das was an out and out sale. This being a concurrent finding on fact is final and does not permit a second appeal under section 100 of the Civil Procedure Code. Under the said section a second appeal is allowed only when the High Court is satisfied that the case involves a substantial question of law. It is urged by Mr. Samajdar that the lower courts did not consider the evidence adduced by the defendants-Appellants while arming at their finding and that the said omission itself involves a substantial question of law. I have perused the evidence adduced in the suit and a satisfied that the lower appellate court has considered the evidence sufficiently to come to a conclusive finding. His appreciation of evidence is to be accepted at its value. It is neither a perverse judgment nor a Judgment on no evidence. In the grounds of appeal the expression "The appeal succeeds and it must succeed" used in the Judgment while the appeal was actually dismissed has been cited as an instance of non-application of mind by the Judge But a perusal of the Judgment itself would show that the said expression was used only inadvertently.