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1991 DIGILAW 111 (CAL)

Sourendra Deb Modak v. Girish Chandra Modak

1991-02-27

A.K.Nayak, A.M.Bhattacharjee

body1991
Judgment 1. THESE two second appeals having been presented and also heard under the provisions of Order 41 Rule 11 of the Code of Civil Procedure before the enforcement of Section 37 of the Code of Civil procedure (Amendment) Act, 1976, whereby a new Section 100 for Second appeals has been substituted for the old one, shall be governed by the provisions of Section 100 as it stood before such substitution as provided in section 97 (1) (m) of the Amendment Act of 1976. 2. BUT even under Section 100 the Code as it stood before, providing for wider scope of interference than under the new one, both our pre-independence and post-independence apex Courts have deprecated interference with the findings of fact arrived at by the Courts below and more so when the findings of the two Courts below are concurrent. In Deity pattabharaswamy ( AIR 1959 SC 57 at 59), for example, the Supreme Court had to regret that in spite of warnings from time to time, the High Courts, professing and purporting to do justice, have disposed of Second Appeals "as if they were first appeals". As pointed out by the Supreme Court in Ramchandra ayyar ( AIR 1963 SC 302 at 305), even where the High Court feels that some other view on the facts was reasonable or more reasonable, their passion to do justice, however bonafide, was to be subordinated to the circumscribed limitations imposed by Section 100. As justice is to be administered according to law, no endeavour to transcend the provisions of law is permissible even when the avowed purpose is to rescue justice. Not that finding of facts was a forbidden ground or a prohibited area for the High Courts in Second Appeal. Ms pointed by the Supreme Court in, among others, Mattulal vs. Radhelal ( AIR 1974 SC 1596 at 1601-1602), a finding of fact could legally be assailed even in Second Appeal if the same - (a)was founded on an erroneous application of law, or (b) was based on no evidence at all, or (c) was such as could not be arrived at by any reasonable person. We would govern ourselves accordingly. 3. We would govern ourselves accordingly. 3. THE main questions involved in these two appeals between the parties are whether there one of them agreed to sell the disputed property to another and whether yet another party has thereafter purchased the same with notice of the contract. On the first question, both the Courts have, after considering the oral and documentary evidence on record, come to the concurrent finding that there was such an agreement and on the second question also the Courts below have, on similarly appreciable consideration of the materials on record, come to the concurrent finding that the post-agreement purchaser was a purchaser with notice of the agreement. Whether their determination or consideration was right or wrong on facts, is almost of no consequence, unless it can be demonstrated that they grounded their finding without any advertence to relevant materials or on materials which they ought not to have adverted to. We have found none. We have also not been able to discover any erroneous application of law, whether patent or latent. And we also do not think that it can be suggested, even remotely, that the finding is such as could not be arrived at by any reasonable process of consideration. We must, therefore, leave the matter at that. 4. DURING the further hearing of these appeals ion 21. 2. 91, the learned counsel for the appellant has further urged that now that it has been held by this Bench in Urmila Bala Dasi (AIR 1989 Calcutta 283) and also later by the supreme Court in Mithilesh Kumari ( AIR 1989 SC 1247 . that the Benami transactions (Prohibition) Act, 1988 would apply to all proceedings pending in appeals or otherwise, the suit for specific performance, giving rise to one of the appeals, must be held to be not maintainable under Section 4 (i) of the said act providing that no suit or proceeding to enforce any right in respect of any property held benami shall lie by or on behalf of person claiming to be real owner. It has been urged that the alleged agreement to purchase was made by the father in the name of his three sons. Assuming that to be so, the suit is by the sons against the proposed seller, who is still holding the property both in his name and reality, and not holding the same benami. It has been urged that the alleged agreement to purchase was made by the father in the name of his three sons. Assuming that to be so, the suit is by the sons against the proposed seller, who is still holding the property both in his name and reality, and not holding the same benami. The section may come into operation after the property is purchased by the Sons, but the father initiates proceeding against them alleging that the property is held by them as his benamdar. This contention must, therefore, be repelled. We accordingly dismiss both the appeals and as a result, the judgment and decree of the trial court, affirmed by the first appellate court, shall stand unaltered. We are, however, not inclined to make any order as to costs. Records, with a copy of our judgment, to go down at once. Appeals dismissed.