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Pandharinath Bhaguji Vs. Dasharath Genu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 652 of 1954
Judge
Reported inAIR1956Bom572
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Dekkhan Act - Sections 15D
AppellantPandharinath Bhaguji
RespondentDasharath Genu and ors.
Appellant AdvocateB.J. Rele, Adv.
Respondent AdvocateV.D. Tulzapurkar, Adv.
Excerpt:
.....and section 15d of dekkhan act - revision application filed by defendant against findings of lower appellate court that suit transaction is mortgage - possession given over to purchaser soon after transaction took place - trial court found that consideration of rs.600 was infact paid - transaction considered as sale - evidence adduced by trial court justified - decree passed by lower appellate court must be set aside and order of trial court restored. - - 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. i am satisfied that mr...........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 obtainedan order of injunction from the vahiwat court in1921 and that emphasizes the fact that at the timewhen the vahiwat suit was filed rakhmaji successfully proved that he was in possession of theland.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.4......
Judgment:
ORDER

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 obtainedan order of injunction from the vahiwat Court in1921 and that emphasizes the fact that at the timewhen the vahiwat suit was filed Rakhmaji successfully proved that he was in possession of theland.

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.

4. The second point on which the learned District Judge has relied is in respect of the rent which was agreed to be paid by Rakmaji under the Tent note executed by him on 21-9-'20 in favour of the petitioner's father. The rent agreed was Rs. 40/- per year for the half share of the landlord. The learned District Judge was persuaded to accept the argument that the ruling prices in 1920 were twice as much as they were in 1940 and so the rent mentioned by the purchaser was designedly low. Mr. Rele contends -- and in my opinion rightly -- that this is purely guess-work not justified or supported by any legal evidence on the record. It is difficult to appreciate the argument that soon after purchasing the property the purchaser anticipated suits and therefore, brought into existence a rent-note deliberately mentioning a lower amount of rent.

If the rent was really higher, the purchaser, on this argument was prepared to suffer a loss in the matter of receiving rent from his tenant. Besides, the tendency of the ruling prices in 1920 and 'their comparison with the prices prevailing in the years 1940 to 1942, on which the learned District Judge appears to have laid considerable emphasis, is, in my opinion, not evident from the depositions recorded by the trial Court, nor from any documents produced in the case.

It is generally not safe to rely upon matters of common knowledge of this kind and it is always desirable that parties should be asked to adduce evidence on all relevant points in the case. Therefore, in my opinion, Mr. Rele is right when he argues that the learned District Judge in coming to the conclusion that the rent-note mentioned a designedly low amount for rent, had really embarked on the adventure of drawing inferences without any basis in evidence at all.

5. There is one more point which is more decisively in favour of Mr. Rele. The learned District Judge has compared a transaction in respect of a neighboring land survey No. 204 and has found that the price paid for the sale of this land on 16-6-1920 shows that the price for the land in dispute at the date of the transaction must have been more than Rs. 600/-.

If this transaction had really been a sale, it would have afforded relevant consideration in support of the learned District Judge's conclusion and in that case I would not have interfered with his decision. But the learned District Judge apparently lost sight 6f the fact that the transaction which he described and treated as a sale was in reality a deed of gift.

The extract from the Record of Rights clearly shows that this property had been gifted to the donee and the valuation mentioned in the gift deed can hardly be regarded as relevant for the purpose of determining the value of the adjoining land. It is somewhat surprising that even when the learned District Judge was inclined to reverse the finding of the learned trial Judge, he did no carefully examine Ex. 37 and was prepared' to treat it as a sale deed and proceeded to draw inferences from it oil that footing even though the document in terms describes the transaction as a gift.

These are the only reasons given by the learned District Judge in support of his conclusion, and, as I have just pointed out, they cannot be said to afford any legal basis for the inferences drawn by the learned District Judge. That is why, I think, Mr. Rele is justified in contending that the finding of fact adopted by the learned District Judge on the adequacy or otherwise of the price paid by the petitioner is not supported by any legal evidence.

6. In the result, the revisional applicationmust be allowed, the decree passed by the lowerappellate Court must be set aside and that of thetrial Court restored. The petitioner will get hiscosts in this Court. Parties will bear their owncosts in the Courts below.

7. Revision allowed.


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