GOBINDA CHANDRA MANNA Vs. PARESH CHANDRA PRAMANIK

JUDGEMENT

(1.) - These Revisional applications are directed against Judgment and Order, dated 12th December, 1986 passed by the Deputy Magistrate and Deputy Collector, Uluberia acting as the Appellate Authority in R.A.L. Appeal cases Nos. 51 and 52 of 1983-84 affirming those, dated 21/28-7-1983, passed by the Special Officer in R.A.L. Case Nos. 3 and 4 of 1982 whereby the applications for restoration made on behalf of the opposite party No.1 had been allowed. The aforesaid appeals and the applications were heard analogously. The transfers were made on 8-10-1968 by registered deeds with, inter alia, a recital therein that the sales were being made for improvement of the business of the transferer. The present applicant is a subsequent transferee from opposite party No.2, the original transferee.

(2.) Upon consideration of the materials on record and the submissions made on behalf of the contesting parties, the following findings of fact do not call for any interference, namely, that (a) the transferor had only 2.08 acres of land on the date of transfer, (b) the application for restoration had been filed within time and was not barred by limitation. There are, however, certain other findings of fact, which being on very vital points and not having been properly made, deserve reconsideration. The first of such controversial findings is about distress sale. An applicant is entitled to restoration of a land sold provided the sale was a distress sale or that there was an agreement for reconveyance. It appears from the depositions if the present case that the applicant had a business and that there was a time when he could purchase the shares of his other partners' in the said business. He is still carrying on a business. In view of such state of evidence, it is necessary to reconsider the truth of the different purpose for the sale as sought to be pleaded on behalf of the applicant. The trying authority and the appellate authority appeared to have failed to advert to the said aspect of the matter comprehensively. The finding that the case of existence of the business as made out on behalf of the present petitioner could not be proved is vitiated by non-consideration of the very relevant materials on record bordering on perversity as the existence of a business even on the date of deposition or evidence had been admitted by the applicant/ opposite party No.1. It also appears that the opposite party, even on admission, had been purchasing shares of his partners in the business sometimes before the date of the disputed conveyances. No doubt the amended Act entitles the transferor to adduce evidence in variation with the recital in the deed of transfer, yet the different purpose must be established. The purpose of sale as recited in the disputed deeds must be found not to be the real purpose only after rejection of the aforesaid contrary evidence till it is done, as in the present case, the finding. about distress sale remains vulnerable. This material aspect of the matter appears to have been overlooked by the two authorities.

(3.) In the second place, in recording a finding about existence of an agreement for reconveyance, the authorities picked up only the statement of the scribble, overlooking the admitted factual position that no demand for reconveyance by the opposite par No.1 had been made and without judging the probability of the second extension for 10 years. The entire finding about the existence of such an agreement may assume a different complexion upon consideration of the statements and/or admissions made for the applicant in cross-examination and loose its requisite firmness.