SOMANATH MISHRA Vs. MADHU SUDAN MATI

JUDGEMENT

(1.) This Second Appeal by defendant is directed against the decision dated 14 -1 -1980 passed by the appellate Court in Title Appeal No. 69/31/17 of 1979/77/75 dismissing the plaintiffs suit reversing the decision of the trial Court in O. S. No. 141 of 1972 -I.

(2.) THE plaintiffs, who are brothers, instituted the suit for redemption alleging that the property in suit 419 decimals in extent appertaining to Plot No. 376 in Khata No 166 of mouza Krushnanagar in the district of Puri belonged to one Kasinath Naik and had been mortgaged by him with the defendant on 7 -5 -1955. Prior to redemption, Kasinath sold the property to them for a consideration of Rs. 200/ - by a registered sale deed dated 23 -9 -1956 and put them in possession. While they were in enjoyment of the property, the defendant pursuant to his purchase in an auction held in the execution of a decree passed in O. S. No. 94/61 sought recovery of possession from them on 3 -11 -1972 and put them to notice that the suit for foreclosure has been instituted without deliberately impleading them despite his knowledge that they had purchased the property from Kasinath and acquired the right of redemption in respect of the said property. The decree obtained by the defendant, therefore, did not bind them and they were entitled to redeem the property. On the aforesaid pleadings, they filed the suit for redemption and for confirmation of their possession. The defendant resisted the plaintiffs alleging that the plaintiffs were near relation of Kasinath and the transaction was sham and colourable and there was no passing of consideration nor were even the plaintiffs put in possession. The transaction was a fraudulent one with a view to defeating his claim. On the evidence led by the parties, the trial Court held that the transaction was a sham one and the plaintiffs were never in possession of the property and no consideration had passed thereunder. The transaction was entered into with a view to defeating the claim of the defendant. Hence, they were not entitled to redeem the property. In appeal, the findings of the trial Court were reversed. The transaction was held to be a genuine one and it was further held that the same was not entered into with a view to defeating the claim of the defendant. Since the plaintiffs were not made parties to the suit for foreclosure instituted by the defendant, they were not bound by the decree passed and the plaintiffs were justified and within their rights to resist the delivery of possession and were entitled to redeem the property. On the aforesaid holdings, the lower appellate Court decreed the suit.

(3.) SHRI U. N. Mishra, the learned counsel for the appellant, has sought to challenge the findings recorded by the lower appellate Court on the question of possession, the nature of the transaction. But, I am afraid, while exercising second appellate jurisdiction under Section 100 of the Code of Civil Procedure, it is not open to this Court to re -appreciate and re -assess the evidence howsoever gross the error might be. (See AIR 1963 S. C. 302: V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr.) Findings of fact may be interfered with if those are shown to be perverse, namely, findings no reasonable man applying his mind reasonably and judiciously to the facts can reach or if findings have been recorded by ignoring vital and material facts having a considerable bearing or by taking into consideration extraneous facts. Where two views are possible, it is not open to the second appellate Court to upset the finding because the other view appears to be more appealing to it. Counsel for the appellant has not been able to show satisfactorily that the findings are perverse. May those findings are erroneous. But, howsoever grossly erroneous those may be, this Court exercising second appellate jurisdiction is precluded from interfering with the said findings. Going through the judgment and the findings, I am of the view that the findings were reached on relevant evidence and broad probabilities of the case.