Shamsuddin Ahmed, J.
1. This appeal is directed against the judgment of reversal passed by the 1st Additional District Judge, Howrah in Title Appeal No. 153 of 1977 reversing the judgment and decree passed by the learned Munsif, 5th Court at Howrah in Title Suit No. 100 of 1975. The facts giving rise to this appeal may be summarised as follows : --
Holding No. 12 of Sriramdhang Road was a thika tenancy of one Akhil Chandra Maity. Akhil Chandra Maity died leaving his widow Atulmoyee Maity and two sons Sibgopal and Balaram. The defendant Sushil Kumar Maity is the son of Shibgopal. Plaintiff No. 1 Sandhya Rani is wife of plaintiff No. 2 Balaram Maity. Heirs of Akhil Maity sold the property to one Ganashyam Das for consideration of Rs.2,500/- on 13-11-1950. On the same day Ghanashyam executed a registered agreement for reconveyance in favour of the heirs of Akhil. They purchased the property from said Ghanshyam on 12-9-1954 and on the same day plaintiff No. 1 purchased the right, title and interest of Shibgopal and Atulmoyee on a consideral ion of Rs. 2,000/-on the strength of a Registered Deed of the same day. The vendors Atulmoyee and Shibgopal were granted licence to reside in the premises they sold to plaintiff No. 1. Plaintiffs having revoked the licence of the defendant instituted the suit for possession. The defendant's case was that the deed of sale alleged to have been executed in favour of plaintiff No. 1 was without any consideration and it was a sham transaction which was never given effect to. Shibgopal was burdened with debt and under advice of Balaram who was the Karta of the family, he and his mother Atulmoyee executed the same document. He has asserted that he is residing in his own house to which he has a interst as co-sharer.
2-3. The Trial Court found that the document in question was in fact a sham transaction and dismissed the suit. In appeal the Lower Appellate Court reversed the finding. The learned Advocate Mr. Mukherjee appearing for the appellant urged that the Lower Appellate Court committed an error of law in reversing the judgment inasmuch as he has failed to take into account from materials and important evidence into his consideration and thus arrived at an erroneous finding of fact which is not warranted on the face of the evidence on record. He urged that the Lower Appellate Court in his judgment proceeded on the fact that passing of consideration with regard to the deed of sale in favour of plaintiff No. 1 was admitted. His other grievance is that the Court came to an erroneous finding when he stated that there is no evidence on record with regard to the creditor of Shibgopal. The learned Advocate also raised a point of law stating that if the property was sold to Ghanshyam Das and was re-purchased on 12-2-1954 how the title of Shibgopal can pass by a document registered on the same day but executed on 10-2-1954. It appears that Mr. Mukherjee is correct when he asserts that it was never admitted by the defendant that the consideration in respect of sale to plaintiff No. 1 was ever admitted by the defendant possibly this is an over statement made by the learned lower Appellate Court. Consistent case of defendant is that no consideration ever passed. As D. W. 3 he has also staled the same. It cannot therefore be said that non-passing of the consideration was admitted by the defendant but on perusal of the entire evidence it is clear that the Lower Appellate Court could have arrived at a finding that there are material evidence in support of passing a consideration. In fact in the judgment the learned Lower Appellate Court has referred to such evidence. P.W. I who scribed this document has clearly stated that the consideration was paid in his presence and in his house. Nothing could be established for which his evidence should be disbelieved.
4. P.W. 3 Sandhyarani Maity in her deposition she stated that she acquired the property in question by pin-chase. She did not clearly state that she paid the consideration money, unfortunately in cross-examination it was elicited from her that she paid a sum of Rs. 2,000/-. There is nothing on record toindicate that piece of evidence elicited in cross-examination can he assailed. The learned Advocate urged that this witness in her cross-examination has stated that she had never been employed in service. The learned Appellate Court did not consider this evidence which according to Mr. Mukherjee is sufficient to come to a finding that she had no source of income to pay the consideration money. Unfortunately P.W. 3 was not cross-examined on that line nor this case was put to her. If her evidence is assessed in its totality it is established beyond doubt that she paid the consideration money. The onus of establishing that no consideration passed is on the defendant. He staled that no consideration passed but did not disclose his source of knowledge. The other, piece of argument urged by Mr. Mukherjee is that there are evidence on record that Shibgopal had creditors. D.W. 3 has stated so and this has also been admitted by P.W. 2 Balaram. It will appear on cross-examination of the evidence that the creditors referred to therein was with regard to a biscuit manufacturing company of Shibgopal. There is nothing to connect that such loan in connection with the biscuit company if incurred by Shibgopal remained unpaid on the dale of the transaction. Apparently the error committed by the learned Appellate Court has not at all affected his ultimate finding.
5. The other point raised by Mr. Mukherjee to the effect that on the date of transfer Shibgopal and his mother had no subsisting title. They could not transfer any interest in respect of the suit property because they executed the deed of sale in favour of plaintiff No. 1 on 10-2-1954 whereas they themselves purchased the property by a document executed on 12-2-1954. The case of the defendant in this respect is altogether different. In paragraph 4 of the written statement he has stated that the property was not conveyed to Ghanashyam Das it was mortgaged to him under the cover of a purported deed of sale and an agreement to re-convey for avoiding the provision of the Bengal Money Lenders Act. If that is so the title to the property remained with Atulmoyee and Shibgopal. This submission of the Learned Advocate has no foundation.
6. The learned Advocate for the appellant referred to me : AIR1976SC2229 to establishthat the lower Appellate Court's ignoring material and relevant evidence is bad in law. It will appear from the above finding that it has no application in the facts of the instant case. He also referred to : 2SCR90 , : AIR1958Cal733 and : 3SCR604 to impress what criteria should be taken to determine a benami transaction. I have considered these decisions and have found that these have no direct bearing on the facts and circumstances of this case.
7. Learned Advocate for the respondent Mr. Roy Chowdhury supported the finding of the learned Lower Appellate Court. He submitted that if the transaction was a benami is a question of fact and the Court should not intervene in 2nd Appeal. He also relied on (1969) 73 Cal WN 328 to impress that an error in appreciation of evidence is not an error in procedure and in 2nd Appeal such finding should not be interfered with.
8. I have already dealt with the points raised by learned Advocate for the appellant. 1 find no reason for my interference in this appeal. The appeal is dismissed with costs.