JUDGMENT N.N. Sharma, J. - This is a plaintiffs appeal directed against judgment and decree by O.P. Mehrotra, Additional Civil Judge, Ghazipur dated 8-12-1959 who allowed Civil Appeal No. 58 of 1959 arising out of original suit No. 139 of 1951. Learned appellate Court allowed the appeal and dismissed the suit of plaintiff with costs throughout and reversed the judgment of learned Munsif Saidpur Sri Brij Pal Singh dated 4-12-1958 who decreed the plaintiffs suit with costs on payment of Rs. 683/- to defendant No. 1 in these terms : "Defendant No. 1 shall execute a sale deed of the house in suit in favour of plaintiff on the receipt of Rs. 683/- from the plaintiff. If the defendant No. 1 failed to get the sale deed executed by the Court, the defendant second set are allowed to seek any relief regarding the repayment of money, if any paid by them, to defendant No. 1, by another suit." 2. Dispute relates to a house situated in Saidpur Town district Ghazipur, as detailed at the foot of the plaint. 3. Plaintiff was one Bhagwan Ram who is dead now, defendant No. 1 was Prabhu Ram son of Mahabir Ram. Admittedly, Bhagwan Ram and Prabhu Ram, defendant first set were, co-sharers in the disputed property, Share of Bhagwan Ram was as decided in suit No. 182 of 1946 of the Court of Munsif Saidpur through a compromise deed Ext. 6 defendant No. 1 was also recognised as a-co-sharer in the disputed house lying towards south. In Cl. 4 of the compromise decree, it was mentioned that whenever either co-sharer intended to alienate his share, the other co-sharer will have the first option to purchase the same as against any stranger and shall be entitled to reasonable notice of the proposed sale. 4. Smt. Jaimurti alienee is defendant No. 2 and is wife of Jamuna defendant No. 3 and sister-in-law of Ganga Ram and Bholu Ram, defendants second set. 5. On 26-2-1951, defendant No. 1 served a notice (Ext. A-5) on plaintiff indicating his intention to sell his share in the disputed house. Plaintiff received the same on 27-2-1951 and sent a reply on 8-3-1951 vide Ext. A-4 disputing any right, title or interest of defendant No. 1 its this house. 5. On 26-2-1951, defendant No. 1 served a notice (Ext. A-5) on plaintiff indicating his intention to sell his share in the disputed house. Plaintiff received the same on 27-2-1951 and sent a reply on 8-3-1951 vide Ext. A-4 disputing any right, title or interest of defendant No. 1 its this house. He further made it plain that in case the defendant No. 1 proved his share in the disputed house, he was willing to purchase the same. 6. Thereafter, defendant No. 1 entered into an agreement of sale with defendant No. 2 Smt. Jaimurti on 5-4-1951 vide Ext. Al, under the agreement, a sum of Rs. 250/- was paid as earnest money by defendant No. 2 to defendant No. 1, stipulated sale consideration was Rs. 3250/- . 7. Subsequently, on 11-4-1951, a registered sale deed (Ext. A-2) was executed by defendant No. 1 in favour of defendant No. 2 for a consideration of Rs. 3250/- in which the said earnest money was adjusted and balance of Rs. 3,000/- was paid in cash in presence of Sub-Registrar. 8. It was thereafter on 4-5-1951 that plaintiff filed this. suit alleging that defendant No. 1 had no right to sell the house to defendant No. 2, it was further averred that the sum of Rs. 400/- only was paid to defendant No. 1 as the price of the house and the sum of Rs. 3250/- was simply the ostensible sale consideration which was not the real consideration. The real market value of the disputed house in question was Rs. 400/- , a sum of Rs. 2600/- had been refunded by defendant No. 1 to vendee after registration. It was further averred that defendant Nos. 2 to 5 were members of a joint Hindu family of which Ganga Ram, defendant No. 4, was the Karta, sale was simply Benami in her name. 9. It was further averred that Ganga Ram, defendant No. 4, was a tenant in the disputed house even at the time when suit No. 182 of 1946 was being contested and he lead full knowledge about the said terms of the compromise, Ext. 6. 10. Thus, the reliefs sought were for specific performance of the said agreement and for recovery of possession over the disputed house on payment of Rs. 400/- or on payment of the amount found proper and reasonable by the Court. 6. 10. Thus, the reliefs sought were for specific performance of the said agreement and for recovery of possession over the disputed house on payment of Rs. 400/- or on payment of the amount found proper and reasonable by the Court. Costs of the suit were also claimed. 11. Defendant, first set, contested the suit on the ground that his title in the house was assailed by plaintiff in reply to his notice, plaintiff did not signify his willingness to purchase the share of defendant No. 1 and thus did not carry out his part of the agreement and thus, he was now stopped from filing the suit. He further denied the refund of any sale consideration to vendee. 12. Out of defendants, second set, defendants 2 and 3 filed a separate written statement pleading that the sale in favour of defendant No. 2 was not Benami, actual sale consideration was Rs. 3250/- and there was no question of any refund of. Rs. 2600/- . They further expressed ignorance about the terms of compromise Ext. 6. They further pleaded that defendant No. 2 was a bona fide purchaser for value without notice of Ex. 6. 13. Learned Munsif found that the market value of the house was Rs. 600/- , he further found that vendee was a lady of joint Hindu family and she was Benamidar on behalf of defendant No. 4 and had a notice of the agreement contained in the said compromise. However, he found that no portion of sale consideration had been refunded. The claim was allowed subject to payment of Rs. 683/- to defendant No. 1 in the terms given above. 14. Smt. Jaimurti preferred the appeal which was allowed by the impugned judgment and decree. 15. Aggrieved by that decision, plaintiff has filed this appeal. 16. I have heard Sri R.N. Singh learned Advocate for appellant and Sri M. A. Qadeer, learned Advocate for respondents at length. 17. Learned counsel for appellant argued that the relief for specific performance was discretionary relief, that discretion was exercised by learned trial Court in favour of plaintiff, learned appellate Court was not justified in interfering with that discretion. It was further maintained that the learned appellate Court did not give any cogent reason to disturb the appreciation of evidence by trial Court learned appellate Court proceeded on the basis of evidence which was not recorded in his presence. It was further maintained that the learned appellate Court did not give any cogent reason to disturb the appreciation of evidence by trial Court learned appellate Court proceeded on the basis of evidence which was not recorded in his presence. Under these circumstances, the impugned judgment was unsustainable. 18. It was further maintained on behalf of appellant that now he was willing even to pay the sum of Rs. 3250/- to defendant No. 2 to purchase the property, it was further urged that interest of justice, equity at 4 good conscience also demanded that defendant No. 2 should not be permitted to have a share in this house as she was stranger to this family and it was open to the plaintiff to buy her out. 19. Various authorities were also cited by learned Advocate for appellant in support of aforesaid contentions. 20. He relied upon Hari Nandan v. Deo Narain, reported in 1982 All LJ 427 which posited (at p. 431) : "Where there is a conflict of oral evidence of the parties on any matter in issue and the decision hinge upon the credibility of witnesses, then nless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where credibility lies, the appellate Court must not interfere with the finding of the trial Judge on a question of fact." 21. Next decision relied upon by him has been reported in Aziz Ahmad v. Sk. Abdul Ghafoor, 1980 All LJ NOC 141 which laid down : "The trial Court has the advantage of hearing the oral evidence and watching the demeanour of witnesses in the witness-box. When the trial Court on an appreciation of oral evidence comes to a finding that the sons of "M " were joint in business with him and the acquisition of the property was from the joint funds the findings so recorded is not lightly to be disturbed by the appellate Court. When a case comes up before the appellate Court it is the correctness and propriety of the judgment ender appeal which is primary point for consideration. The onus is on the appellant to show that the judgment is wrong. Where the appreciation of oral testimony is concerned, the appellate court has to reconcile two conflicting view points. When a case comes up before the appellate Court it is the correctness and propriety of the judgment ender appeal which is primary point for consideration. The onus is on the appellant to show that the judgment is wrong. Where the appreciation of oral testimony is concerned, the appellate court has to reconcile two conflicting view points. On questions of fact depending on oral testimony, the conclusions of the Trial Judge are not to be lightly interfered with. When there is conflict in oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witnesses which has escaped the Trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the Trial Judge on a question of fact. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the Court outweighs such finding." 22. He also placed reliance upon Smt. Kavita v. State of Maharashtra, reported in AIR 1981 SC 2084 which runs as below : "A finding of fact recorded by the High Court overlooking the incontrovertible evidence which points to the contrary and, therefore, utterly unsustainable cannot come in the way of the Supreme Court reaching a correct conclusion on facts and the examination of the evidence by the Supreme Court cannot be impeded by a mere submission that the Supreme Court does not interfere with finding of fact." 23. The next authority relied upon by him is reported in T.D. Gopalan v. Commr. of Hindu Religious and Charitable Endowments, Madras, AIR 1972 SC 1716 which posited : "The uniform practice in the matter of appreciation of evidence has been that if the trial Court has given cogent and detailed reasons for not accepting the testimony of a witness, the appellate Court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial Court." 24. Sri M. A. Qadeer, learned Advocate for respondents relied upon Vijai Nath v. Damodar Das Chela Shiv Mangal Das, hich runs reported in AIR 1971 All 109 was below : "Although it is generally desirable that the appellate Court should not appraise the oral evidence for itself, yet S. 96 enjoins upon an appellate Court to hear the appeal and to arrive at its own conclusion about the controversy in suit. It is not bound by the findings recorded by the trial Court in the same manner as a second appellate Court is bound by the findings of fact recorded by a lower appellate Court. It is, therefore, incorrect to say that lower appellate Court commits an error of law if it reassesses the oral evidence and comes to a conclusion different from that of the trial Court." 25. I have carefully perused these authorities which propound the established legal view that obviously the trial Court is in a better position to appreciate the oral testimony of the witnesses as he has an advantage to watch the demeanour of the witnesses. However, it is open to appellate Court to disturb that appreciation of evidence in cases where the trial Court has misread the evidence or has over-looked the glaring circumstances of the case. 26. It is in light of the aforesaid legal position that in scrutinise the divergent findings. 27. As regards the agreement, Ext. 6 copy of compromise decree confers a right on plaintiff to have the first option. Thus it has to be seen as to whether the requirements of the said compromise decree were complied with by defendant No. 1 or not? I have also gone-through the statement of Prabhu Ram defendant No. 1. 28. Bhagwan Ram (P.W. 1) plaintiff testified that the compromise decree was arrived at amongst the co-sharers, according to that compromise decree, he was co-sharer to the extent of and the other half belonged to the defendant No. 1 and his brother. He further testified that the aforesaid transaction executed by defendant No. 1 in favour of defendant No. 2 was a bogus transaction, the sale deed was executed for only a sum of Rs. 400/- although the ostensible sale consideration was alleged as Rs. 3250/- . He further conceded that Prabhu gave notice about the proposed sale and he replied the same vide Ext. 15. 400/- although the ostensible sale consideration was alleged as Rs. 3250/- . He further conceded that Prabhu gave notice about the proposed sale and he replied the same vide Ext. 15. He further added about an interpolation in Ext. A-4. Except that interpolation, the entire Ext. 4 was scribed by him. 29. Prabhu Ram defendant No. 1 entered into witness box as D. W. 2. He testified that he served a notice about his intention to sell the house. He received reply Ext. A-4 which he filed without any interpolation, he further testified that the sale deed was executed for a sum of Rs. 3250/- and not for Rs. 400/- and plaintiff was not willing to pay that price. He further testified that plaintiff was well aware of the execution of the sale deed by him in favour of Smt. Jaimurti wife of Jamuna Ram. It was not an ostensible sale. Jamuna, Bhagelu and Ganga resided separately for 7 or 8 years prior to his deposition dated 20-8-1954. No amount was refunded to him. He further conceded that he and Shambhu were co-sharers in the disputed house and their share was to the extent of each. He and Shambhu had sold their share for Rs. 3250/- . 30. His statement was fully corroborated on this point by D.W. 1' Jamuna husband of Smt. Jaimurti and D.W. 5 Ganga. Ganga further testified that he had nothing to do with the sale deed and the sale consideration flowed from the pocket of Smt. Jaimurti who received this amount from her father etc. Jamuna and Ganga further testified that they had absolutely no knowledge of the compromise decree. 31. Smt. Jaimurti (D.W.6) further testified that she purchased this house from her own money and her husband or Ganga had nothing to do with the same. She had absolutely no knowledge about the litigation between plaintiff and defendant No. 1. The terms of the sale were settled by her husband. 32. Obviously defendant No. 1 did serve a notice on plaintiff on 26-2-1951 vide Ext. A-5. Plaintiff did reply notice through letter Ext. A-4. Ext. 15 is the copy of that reply. Sri R. N. Singh, learned Advocate for the appellant pointed out that under this reply the plaintiff offered in an unqualified manner to purchase the house. 33. 32. Obviously defendant No. 1 did serve a notice on plaintiff on 26-2-1951 vide Ext. A-5. Plaintiff did reply notice through letter Ext. A-4. Ext. 15 is the copy of that reply. Sri R. N. Singh, learned Advocate for the appellant pointed out that under this reply the plaintiff offered in an unqualified manner to purchase the house. 33. He further pointed out that learned Munsif rightly construed this document in light of attending circumstances of the proposal and acceptance. In this connection learned Munsif observed : "It has been argued on behalf of defdt. l that because plaintiff questioned the right to sell and the share of the defdt. 1 so it must be presumed that plaintiff not willing to purchase the share of the defdt. No. 1 of the house in suit. Let it be noted here that admittedly the share of defdt. No. 1 in the house in suit was only and his brother was entitled to his share in the house in suit. Thus it was only natural on the part of the plaintiff to enquire whether the brother of defdt. No. 1 was also willing to sell his share in the house in suit. In Ext. A-4 the plaintiff has stated in categorical terms that he is willing to purchase the share of defdt. No. 1, if any, in the house in suit and a sale in the favour of any third person would have no legal effect." 34. Learned appellate Court found that in this reply, plaintiff clearly denied right, title or interest of defendant No. 1 in this house, he further questioned his right of disposal, he further set up himself to he the exclusive owner of the entire house. 35. A perusal of the reply Ext. A-4 unmistakably goes to show that despite the clear offer made by defendant No. 1 to plaintiff to purchase the house which was being sold, plaintiff did not signify his willingness to purchase the same. It was of the essence of the agreement that such offer should have been accepted in an unqualified manner. Plaintiff disputed the power of disposal of defendant No. 1 to sell any portion of the disputed house and set up himself as sole owner of the house to the exclusion of defendant No. 1. It was of the essence of the agreement that such offer should have been accepted in an unqualified manner. Plaintiff disputed the power of disposal of defendant No. 1 to sell any portion of the disputed house and set up himself as sole owner of the house to the exclusion of defendant No. 1. He further required defendant No. 1 to establish his title which had already been established by the compromise decree. Under such circumstances, I fully endorse the observation made by the learned lower appellate Court on the point that plaintiff was not willing to perform his part of contract right from the beginning. He was reluctant to pay more than Rs. 400/- to purchase the vended share. By denying the title of defendant No. 1, plaintiff committed the breach of the clause incorporated in the decree. 36. Learned Advocate for appellant further pointed out that Smt. Jaimurti was wife of Jamuna. Ganga and Jamuna were own brothers and were members of the joint Hindu family and Ganga was a Pairokar on behalf of Prabhu in the earlier litigation (Suit No. 182 of 1946) and signed Vakalatnama of Parbhu as a witness and so vendee had notice of Ext. 6. The assertion of Smt. Jaimurti that she was totally unaware of the compromise decree in that suit should not have been accepted by the learned appellate Court when learned Munsif believed the allegation of plaintiff on this point. 37. In this connection, it was further pointed out that there was no written partition between Jamuna and Ganga. Jointness is the presumption in cases of Hindu family under the Mitakshara Law. It was reasonable to expect that Smt. Jaimurti who occupied the house as a tenant must have gained the knowledge of the said decree specially when after the vacation of house by Ganga, it was taken on rent from both the co-sharers by Jamuna. This is again a circumstance which is pointer to the fact that Smt. Jaimurti must have got the notice of the earlier litigation, that she knew well the extent of shares of plaintiff and defendant No.1 in this house. This is again a circumstance which is pointer to the fact that Smt. Jaimurti must have got the notice of the earlier litigation, that she knew well the extent of shares of plaintiff and defendant No.1 in this house. In this connection, learned Advocate for the appellant also placed reliance upon Abdul Mazid v. Burhanuddin Ahmed, reported in AIR 1980 Gauhati 44 which posited : "Unless there be an overt act on the part of the contract or the tenant to be conspicuous to the subsequent purchaser. who made an honest and reasonable inquiry suited to the facts and circumstances, his claim of bona fide purchase for value may not be negatived. In such a case, if the lower Court on consideration of the facts has exercised the discretion in a way, the Appellate Court may not interfere unless the exercise is found to be arbitrary or capricious. Specific performance after all is a discretionary remedy." 38. Thus the contention was that the view of the learned trial Court about constructive notice of the said agreement Ext. 6 to Smt. Jaimurti must have prevailed and the appellate Court must have been slow to disturb that finding of fact based on the appreciation of oral evidence alone. 39. Sri. M.A. Qadeer, learned Advocate for respondents, relied upon Chitra Talkies v. Durga Dass Mehta, reported in AIR 1973 All 40 which posited : "Where after obtaining a decree for possession by eviction of the tenant from the demised cinema building the decree-holder created a fresh tenancy in favour of the judgment-debtor the decree cannot be said to have been adjusted within the meaning of Order 21, Rule 2 so as to require certification and the judgment-debtor can raise an objection under S. 47 that the fresh tenancy created in his favour rendered the decree in executable." 40. He further relied upon Smt. Prempiari v. Dukhi, reported in AIR 1976 All 444 which laid down : "(B) Civil P. C. (1908), S. 100 - Second appeal - Findings of facts by the lower appellate Court arrived at on close scrutiny of entire evidence on record - No interference." 41. He further relied upon Smt. Prempiari v. Dukhi, reported in AIR 1976 All 444 which laid down : "(B) Civil P. C. (1908), S. 100 - Second appeal - Findings of facts by the lower appellate Court arrived at on close scrutiny of entire evidence on record - No interference." 41. Next authority cited by him has been reported in Sidh Nath Shukla v. Smt. Roop Rani, AIR 1977 All 286 where the facts were as below : "Where the plaintiffs residing in the locality filed a suit under O. 1 R. 8 alleging that the disputed land was a common Sahan of the locality for holding Panchayats and staying of marriage parties etc. and the defendants had encroached upon the same by raising constructions and claimed possession of the land after removal of obstructions, it was held that the findings of the first appellate Court that the disputeu land did not form part of Common Sehan and the constructions raised were not encroachments as alleged by the plaintiffs were pure findings of fact and merely because there were some mistakes in appreciation of some pieces of evidence the findings could not be interfered with in second appeal when there was other evidence in support thereof." 42. Sri M. A. Qadeer, learned Advocate for the respondents further pointed out that the test about judging the nature of transaction as to whether it was Benami or not was laid in Jaydayal Poddar v. Mst. Bibi Hazra, reported in AIR 1974 SC 171 in the following terms (Para 6) : "Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniform ally applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances, (1) the source from which the purchase money came, (2) the nature and possession of the property, after the purchase, (3) motive, if any, for giving the transaction a benami colour, (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar, (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case." 43. I have carefully perused these authorities and the facts laid therein. The principles of law enunciated therein were not disputed at the bar. 44. A careful perusal of testimony of Smt. Jaimurti Jamuna and Ganga shall go to disclose that there is nothing in their evidence to justify the inference that they were members of a joint family or resided under one roof at a particular time. Ganga testified that he and his brother were living separately for the last 14-15 years. He further testified that there has been an oral partition between him and his brother. This disruption of the joint status could be through oral partition also. It is also in evidence that Ganga, Jamuna and Bhagelu live in three different houses and carried different business. It is also on record that Jamuna and Smt. Jaimurti occupied this house when it was vacated by Ganga who had already shifted to Calcutta in connection with his business. When Ganga denied on oath his signature on the notice of engagement. his signatures were not established by the expert's evidence as contemplated by S. 45. illustration (c) of the Indian Evidence Act. Under these circumstances it was perfectly open to the learned appellate Court to find that the said notice did not bear the signature of Ganga. Learned appellate Court also compared the signatures of Ganga on the vakalatnama with his signatures on his deposition. He was not inclined to accept that vakalatnama was signed by Ganga. 45. He further rightly observed that even assuming that Ganga did attest that notice it could not fix him with knowledge of that compromise nor any inference can be drawn that such knowledge of Ganga must have been passed over to his own brother's wife. It is further significant to note that the sale deed in question is a registered instrument. There is nothing on record to show that any portion of the consideration flowed from the pocket of Ganga and not from the pocket of Smt. Jaimurti. Under these circumstances, I endorse the view of the learned appellate Court on the point that Smt. Jaimurti was a bona fide purchaser for value without notice of Ext. 6. 46. There is nothing on record to show that any portion of the consideration flowed from the pocket of Ganga and not from the pocket of Smt. Jaimurti. Under these circumstances, I endorse the view of the learned appellate Court on the point that Smt. Jaimurti was a bona fide purchaser for value without notice of Ext. 6. 46. As regards the offer put forward on behalf of appellant to purchase the house in November, 1982 for a sum of Rs. 3250/- while initially he never intended to purchase the house for an amount more than Rs. 400/- and went on contesting the claim of respondent Smt. Jaimurti for about 20 years or so, under such circumstances, I find that the view taken by learned appellate Court below was not incorrect or erroneous. 47. Moreover, the finding as to whether Snit. Jaimurti was a bona fide purchaser without notice of Ex. 6 or not was a finding of fact which cannot be lightly disturbed now as was held in V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302 where it was observed : "....... The error or defect in the procedure to which clause (c) of S. 100 (1) refers is as the clause clearly and unambiguously indicates, an error or defect connected with or relating to, the procedure, it is not an error or defect in the appreciation of evidence adduced by the parties on the merit. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure......." 48. In the result, I do not find any force in this appeal which is dismissed with costs. The impugned judgment and decree are affirmed.