( 1 ) THIS appeal arises out of the judgment and decree of the learned Senior civil Judge, Srikalahasti dated 2-4-1996 dismissing O. S. No. 246 of 1985 and confirmed by the learned III Additional district Judge, Tirupati by his judgment and decree dated 6-12-1999 in a. S. No. 70 of 1996. ( 2 ) BOTH the parties are referred here as arrayed in the trial court. ( 3 ) BOTH the courts below concurrently held that the suit schedule building belonged to late Manisankar represented by defendants 1 to 4, his legal heirs, and the said Manisankar sold the same in favour of defendant No. 5, a non-resident Indian and daughter of defendant No. 6 who was admittedly his partner during his life time. I have no manner of doubt that both the courts below missed the crucial point in this case and jumped at an erroneous conclusion. ( 4 ) THE plaintiffs filed suit for declaration of the title and delivery of possession of the suit schedule shop. The case of the plaintiffs is that the second plaintiff Venkatachalam purchased a large extent of land from the erstwhile Raja of Srikalahasti, Chittoor district and obtained Ex. B-1 sale deed dated 28-2-1951 in favour of one manisankar, an orphan. The said manisankar is the son of the brother of the second plaintiff and as he lost his parents during childhood the second plaintiff fostered him. The second plaintiff got educated the said Manisankar and admittedly the said Manisankar studied b. Pharmacy. After completion of his studies, the second plaintiff constructed the suit shop bearing Municipal No. 6/124 in 1957 or 1958 and started a medical shop for the benefit of Manisankar. Thereafter in the year 1968 having obtained permission from the Srikalahasthi Municipality the second plaintiff constructed the shops on both sides of that shop. Further he constructed a lodge on the upstairs of the entire building consisting of 4 double rooms and two single rooms in the year 1972 and started running a lodge under the name and style "lakshmi lodge". Manisankar converted the medical shop into the wine shop in the year 1973 and started doing the business in partnership with defendant No. 6. Thereafter he was addicted to bad habits and he started disposing of the properties. Manisankar converted the medical shop into the wine shop in the year 1973 and started doing the business in partnership with defendant No. 6. Thereafter he was addicted to bad habits and he started disposing of the properties. At that stage, defendant No,6 purchased the suit schedule shop including the two rooms in the upstairs of the shop in the name of his daughter defendant No. 5, who is a non-resident indian, under the original of ex. B-9 sale deed and Ex. B-9 sale deed was registered in the District Registrar s office at chittoor on 26-7-1977. Manisankar died in the year 1983. It is the case of the plaintiffs that though they asked defendant No. 6 to vacate the premises he refused to do so and therefore they gave a legal notice to defendant No. 6. Defendant No. 6 seems to have given a reply stating that his daughter defendant No. 5 purchased the property including two rooms in the upstairs from late Manisankar in the year 1977. In those circumstances, the plaintiffs filed the suit for declaration of title and recovery of possession of suit schedule shop by impleading defendants 1 to 4, the legal heirs of late Manisankar, Defendant No. 5 is a non-resident Indian in whose name defendant No. 6 purchased the suit schedule shop. The plaintiffs alternatively pleaded that Manisankar be declared as a tenant and he committed default in payment of rents and as such he is liable to be evicted from the suit schedule shop. ( 5 ) THE case of the defendants is that the suit schedule shop is the self-acquired property of Manisankar and as such the suit is liable to be dismissed as devoid of merits. ( 6 ) DURING the pendency of the suit, both the plaintiffs and defendant No. 6 died. While, the present appellants were brought on record as legal representatives of the plaintiffs, defendants 7 to 11 as legal representatives of defendant No. 6. Defendant No. 5 i. e. , vendee, gave power of attorney to defendant No. 9 Ramanujulu who is her brother to represent her in the suit. ( 7 ) THE legal heirs of Manisankar defendants 1 to 4 remained ex parts. ( 8 ) ON the basis of the pleadings, the trial court framed the following issues at different points of time. ( 7 ) THE legal heirs of Manisankar defendants 1 to 4 remained ex parts. ( 8 ) ON the basis of the pleadings, the trial court framed the following issues at different points of time. (1) Whether the plaintiff is entitled to the reliefs of declaration and possession as prayed for? and (2) To what relief? additional issue framed on 27-1-1986; (1) Whether late Manisankar was a tenant of the plaintiff or absolute owner entitled to sell the suit house to defendant No. 5? and (2) Whether the plaintiff perfected her title to the suit house by adverse possession? additional issue framed on 8-2-1991: (1) Whether the suit is not maintainable in view of the Benami transactions (Prohibition) Act? ( 9 ) THE plaintiffs, to prove their case, examined P. Ws. l to 4 and marked Exs. A-1 to A-21. P. W. I is the plaintiff No. 4 who is the son of the second plaintiff. P. W. 2 is the person that took the lodge of the plaintiffs on lease. P. W. 3 is defendant No. 2 who is also the son of the late Manisankar. P. W. 4 is the person that worked as Compounder under the second plaintiff. The defendants on their behalf examined D. Ws. l to 3 and marked Exs. B-1 to B-16. D. W. I is defendant no. 9, who is the power of attorney holder of defendant No. 5. ( 10 ) THE trial court on appreciation of evidence held on the additional issue i. e. ,, whether the suit is not maintainable in view of the Benami Transactions (Prohibition) act framed on 8-2-1991 in favour of the plaintiffs that the suit is maintainable as benami Transactions (Prohibition) Act, is having prospective effect. On all other issues, the trial court held against the plaintiffs. On all other issues, the trial court held against the plaintiffs. But , at the same time, the trial court held that two rooms on the upstairs of the shop are not in possession of the defendants as well as late Manisankar and dismissed the suit to the extent of the suit schedule shop holding that the plaintiffs had no right or title to the suit schedule shop and that they are not entitled to declaration and possession in respect of the suit schedule shop in the ground floor, ( 11 ) AGGRIEVED by the said judgment and decree, the plaintiffs carried the matter in appeal in A. S. No. 70 of 1996 to the learned iii Additional District Judge, Tirupati. The learned III Additional District Judge framed the following points for consideration in the appeal: (1) Whether late Manisankar was the absolute owner of the plaint schedule property or was it purchased benami in his name by the 1st plaintiff? and (2) Whether the sale in favour of 5th defendant by late Manisankar is valid and binding on the plaintiffs? ( 12 ) ON both the issues, the appellate court held against the plaintiffs and in favour of the defendants. It is astonishing to see that the learned III Additional District judge held against the plaintiffs in respect of the upstairs rooms also though the defendants did not prefer any cross appeal in the following words:"so it is clear that Manisankar was the absolute owner of the plaint schedule property, sold the same to the 5th defendant under original of Ex. B-9 and as the plaintiffs failed to establish that the plaint schedule property was purchased benami in the name of manisankar, I hold that the sale in favour of 5th defendant by the said manisankar is binding on the plaintiffs also. So the lower court rightly dismissed the suit and for the reasons stated above, I see reason to interfere with the findings of the lower Court. The appeal is devoid of any merits and it is liable to be dismissed. " ( 13 ) WHEN this appeal came up for hearing on 15-10-2001, having felt that both the courts below missed the crucial issue and that the issues were not properly framed, I thought of remanding the matter to the trial court by framing the issues for consideration. " ( 13 ) WHEN this appeal came up for hearing on 15-10-2001, having felt that both the courts below missed the crucial issue and that the issues were not properly framed, I thought of remanding the matter to the trial court by framing the issues for consideration. But Smt. Bobba vijayalakshmi, learned counsel for the respondents-defendants, strenuously contended that however perverse the findings may be the High Court cannot interfere with the findings of fact more so after the amendment of Section 100 C. P. C. unless there is substantial question of law that arises for consideration and that as no substantial question of law arise from the facts of the case, the second appeal is liable to be dismissed with costs, and contending so Smt. Vijayalakshmi sought time for placing the case law before this court. Hence without signing the judgment, I posted the matter for further hearing. ( 14 ) SMT. Vijayalakshmi to put forth her case relied upon the decisions in Kondiba dagadu Kadam v. Savitribai Sopan Gujar, m. G. Hegde v. Vasudev D. Hegde, ramachandra Pandurang Sonar v. Murlidhar ramchandra Sonar and Veerayee Ammal v. Seeni Ammal. ( 15 ) IN Kondiba Dagadu Kadam v. Savitribai sopan Gujar their Lordships of the Supreme court having observed:"2. Despite amendment by the amending Act 104 of 1976, Section 100 of the Code of Civil Procedure appears to have been liberally construed and generously applied by some Judges of various High Courts with the result that the drastic changes made in the law and the object behind that appears to have been frustrated. "held as follows:"3. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The Memorandum of Appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. "their Lordships in paragraph 4 of their judgment observed:"it has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. "their Lordships in paragraph 5 of their judgment also held:"5. It is not within the domain of the high Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence. "from the above it is seen that normally the high Courts are not expected to disturb the findings recorded by the first appellate courts. Even if two views are possible in a given set of circumstances but if the conclusions drawn by the lower appellate court are erroneous being contrary to the law applicable or the settled position on the basis of the pronouncements made by the apex Court or were based upon inadmissible evidence or arrived at without evidence, the High Court is well within its competence to interfere with the findings arrived at by the first appellate court. ( 16 ) IN M. G. Hegde v. Vasudev D. Hegde (2 supra) their Lordships of the Supreme court held that the jurisdiction of the High court in exercise of the power under section 100 C. P. C. are limited and the words that are being used by the High court i. e. , the judgment and decree of the appellate court was "prima facie perverse and error apparent on the face of the record" is not "mantra" that can be employed to permit the court to do in a second appeal what the law enjoins it not to do. ( 17 ) IN Ramachandra Pandurang Sonar v. Murlidhar Ramchandra Sonar (3 supra) their lordships of the Supreme Court held that the High Court would not be justified in interfering with the finding of fact in second appeal on the grounds not made out by the plaintiff in plaint or in his evidence. In veerayee Ammal v. Seeni Ammal (4 supra) their Lordships of the Supreme Court having reviewed the case law on the aspect held:"the conditions specified in Section 100 of the Code are required to be strictly fulfilled and that the second appeal cannot be decided on merely equitable grounds. As to what is the substantial question of law, the supreme Court in Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and manufacturing Co. As to what is the substantial question of law, the supreme Court in Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and manufacturing Co. Ltd. ( AIR 1962 sc 1314 ) held that: "the proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal court or is not free from difficulty or calls for discussion or alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. "on facts of the case, their Lordships held that the question of law formulated as substantial question of law in that case cannot in any way be termed as question of law much less substantial question of law. ( 18 ) IN this background I appointed Sri t: Veerabhadrayya, a senior counsel of this court as amicus curie to assist this court. ( 19 ) SRI Veerabhadrayya relying upon the decision in Ishwar Dass Jain v. Sohan Lal contends that as this court is definitely under the impression that there is miscarriage of justice in this case and both the courts below did not really advert to the real controversy in this case and that when the first appellate court upon which a duty is cast to examine the entire relevant evidence on record refuses to consider important evidence having direct bearing on the disputed issue and the error is of such a magnitude that it gives birth to substantial question of law this court is fully authorized to set aside the finding. In that decision, their Lordships of the Supreme court observed:"10. Now under 9ecti6n 100, CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. In that decision, their Lordships of the Supreme court observed:"10. Now under 9ecti6n 100, CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. "in that decision, their Lordships of the supreme Court cited their earlier decision in Jagdish Singh v. Nathu Singh as to when the High Court can interfere with the judgment of the court below. In the decision in Jagdish Singh v. Nathu Singh, venkatachalaiah, J. (as he then was) speaking for the Bench observed:"where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. "the Supreme Court in Ishwar Das fain v. Sohan Lal (5 supra) further held:"12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was committed, an opposite conclusion was possible. "from the above it is seen that in either of the above two situations, a substantial question of law will arise and the High Court can interfere in the second appeal with the finding of fact arrived at by the first appellate court when it failed to consider important evidence having direct bearing on the disputed issue and when a finding was arrived at by the appellate court by placing reliance on inadmissible evidence. ( 20 ) SRI Veerabhadrayya also cited the decisions in Shri Bhagwan Sharma v. Smt. Bani Ghosh and Dilbagrai Punjabi v. Sharad chandra. ( 21 ) IN Shri Bhagwan Sharma v. Smt. Bani ghosh a Constitution Bench of the Supreme court held:". . . . . . . . . the High Court is certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non- consideration of admissible evidence of vital nature. "in Dilbagrai Punjabi v, Sharad Chandra (8 supra) their Lordships of the Supreme court held:". . . . . . . "in Dilbagrai Punjabi v, Sharad Chandra (8 supra) their Lordships of the Supreme court held:". . . . . . . the Court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorized to set aside the finding. " ( 22 ) NOW the question before this court is whether this court has to remand the matter back to the trial court for fresh consideration by formulating the issues for a decision in the case or this court can decide the case on its own. ( 23 ) I perused the pleadings, issues framed and the evidence adduced by the parries in this case. Though the issues were not properly framed by the trial court, both the parties let in me evidence knowing fully well the effect of Ex. B-1 sale deed in favour of late Manisankar (i. e. ,) whether the transaction under Ex. B-1 is a benami one intended for the benefit of the second plaintiff or whether the property is the self-acquired property of Manisankar. After hearing the amicus curie I feel that I can myself decide the matter without remanding the matter back to the trial court, i am supported in my view by a decision of the Supreme Court in Ashwinkumar K, Patel v. Upendra }. Patel wherein their Lordships of the Supreme Court posed a question and answered as follows:"7. The point for consideration is whether the order of the High Court in remitting the matter to the trial court was necessary. Question also is whether this court should remand the case to the High Court in the event of this court holding that the remand by the High Court was not called for. If not, whether the order of the trial court is to be sustained. 8. In our view, the High Court should not ordinarily remand a case under order 41 Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. 8. In our view, the High Court should not ordinarily remand a case under order 41 Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one-way or the other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary. 9. We have also considered whether, on that account, we should send back the matter to the High Court for consideration of the appeal. We are of the view that on the facts of this case, this Court can decide whether the temporary injunction granted by the trial court should be confirmed or not. We are, therefore, not remitting the matter to the High Court because a further remand would lead to delay and perhaps one more special leave petition to this court. " ( 24 ) NOW from the pleadings and the judgments of the courts below, the following point is framed for consideration by this court: (1) Whether the judgments of the courts below are vitiated for the reasons that they failed to consider the clinching circumstances and probabilities, which establish that ex. B-1 is only a benami transaction intended for the benefit of late venkatachalam and late, manisankar was not the owner of the property. ( 25 ) V From the evidence it is seen that under Ex. B-1 a large extent of land was purchased (by the second plaintiff) from the erstwhile Raja of Srikalahasthi under ex. B-1 sale deed dated 28-2-1951 in the name of Manisankar. From the pleadings it is seen that Manisankar s original name is subrahmanyam. He is also known as manisankar. B-1 a large extent of land was purchased (by the second plaintiff) from the erstwhile Raja of Srikalahasthi under ex. B-1 sale deed dated 28-2-1951 in the name of Manisankar. From the pleadings it is seen that Manisankar s original name is subrahmanyam. He is also known as manisankar. The specific case of the plaintiffs is that Manisankar is the son of one Papaiah Chetty. Manisankar, on the death of his parents, seemed to have been brought up by the second plaintiff. The second plaintiff got educated him. It is also his case that after late Manisankar passed b. Pharmacy the suit schedule shop was constructed in the year 1957 and a medical shop was opened in that shop for the benefit of late Manisankar. It is also the case of the plaintiffs that in the year 1968 on both the sides of the shop some more shops were constructed and that in 1972 upstairs building was constructed after obtaining permission from the Municipal authorities and the plaintiffs are running a lodge under the name and style "lakshmi Lodge". From the record it is seen that Manisankar flourished for a considerable time by doing several businesses such as spirit business, agency for Panyam cement and a small unit of steel manufacturing unit. The rest of the facts i. e. , how Manisankar was addicted to bad habits and how he disposed of the property, were cited in the preamble of the judgment. ( 26 ) THE transaction under Ex. B-1, being an old transaction, it is to be seen what type of evidence can be produced in this case. The trial court having adverted to the principles to find out whether a particular transaction is a benami one or not held against the plaintiffs on the ground that there is no evidence to show that manisankar had no property and he was an orphan. Knowing fully well that plaintiffs 1 and 2 died and (heir legal representatives are prosecuting the suit, the learned Senior civil Judge observed:"further the competent persons to speak about the same are Plaintiffs 1 and 2. Plaintiffs 1 and 2 are not examined in this case. "their Lordships of the Supreme Court while considering the onus of proof in case of benami transactions in Jaydayal Poddar v. Bibi Hazra held thus:"6. Plaintiffs 1 and 2 are not examined in this case. "their Lordships of the Supreme Court while considering the onus of proof in case of benami transactions in Jaydayal Poddar v. Bibi Hazra held thus:"6. It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character, which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. 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, uniformly 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. Nevertheless no. 1, viz. The above Indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, viz. , the source whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another. " ( 27 ) IN Debi Prasad v. Tribeni Devi their lordships of the Supreme Court held:"in the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. . . " ( 28 ) FROM this it is seen that when the direct evidence is not available, the courts are expected to see whether the circumstances and probabilities of the case will establish benami nature of the transaction. ( 29 ) TO prove that Manisankar was living with late Venkatachalam, the voters list prepared in the year 1959 was marked as ex. A-6. Ex. A-7 is the relevant entry in A-6 voters list. From this it is found that in the house bearing No. 5-118 of Srikalahasthi municipality apart from Venkatachalam and his family Manisankar was also living along with them. A certificate given by the dean of Madras Medical College showing that V. Subrahmanyam passed B. Pharmacy examination in the month of April 1957 was marked as Ex. A-8. Though the name of manisankar is not in the certificate, Ex. B-9 sale deed executed by Late Mani Shanker in favour of the fifth defendant clearly shows that V. S. Manisankar is also called as subrahmanuyam. ( 30 ) THERE are two other documents, ex. B-7 dt. 14-6-1971 whereunder Late Mani shankar mortgaged the property in favour of Srikalahasti Co-operative Town Bank, ex. B-9 dated 26-7-1977 a sale deed executed by him in favour of S. Subbalakshmi which show the other name of Manisankar as v. Subrahmanyam, and he is the vendor of the property. It is the specific case of the plaintiffs that Manisankar became orphan and the second plaintiff got him educated. B-9 dated 26-7-1977 a sale deed executed by him in favour of S. Subbalakshmi which show the other name of Manisankar as v. Subrahmanyam, and he is the vendor of the property. It is the specific case of the plaintiffs that Manisankar became orphan and the second plaintiff got him educated. I have no manner of doubt in observing that had the counsel for the plaintiffs taken little interest in the matter and produced proper evidence, the result in this case would have been otherwise. It is true that no proper evidence was let in to establish that manisankar lost his parents at his early age and the second plaintiff brought him up and got him educated. But at the same time ex. B-1 sale deed of the year 1951 was obtained in the name of Manisankar. Of course, in the document it was recited that he was doing business. But the fact remains that he passed B. Pharmacy in the year 1957. Even assuming that no credence can be given to Ex. A-8 because the author of the document was not examined the fact remains that only one shop was constructed in the year 1957 in the vast extent of land that was purchased under Ex. B-1. Though this shop was under the possession of manisankar plaintiffs 1 and 2 improved the land by constructing the shops on both sides of the shop in the year 1968 and an upstairs portion on the shops where they are running a lodge. This fact amply proves that if the land belongs to Manisankar and he has nothing to do with the plaintiffs how he permitted the plaintiffs to raise a huge construction on his land and permitted them in doing the business. To the pointed question of this court, Smt. Vijayalakshmi, learned counsel for the respondents- defendants submits that there may be some understanding between Manisankar and the plaintiffs being relatives. But that understanding has not seen the light of the day. On the other hand, Manisankar s son having remained ex parte in the suit deposed as P. W. 3 that Manisankar was brought up by the second plaintiff and that the property belongs to the second plaintiff. But that understanding has not seen the light of the day. On the other hand, Manisankar s son having remained ex parte in the suit deposed as P. W. 3 that Manisankar was brought up by the second plaintiff and that the property belongs to the second plaintiff. But the courts below rejected his evidence holding that the witness is deposing against his own interest and that the evidence may be collusive, though nothing was elicited in the cross-examination to prove that he is deposing falsehood. P. W. 4 who worked as compounder under the second plaintiff deposed that the second plaintiff purchased the property in the name of late manisankar. But the courts below rejected the evidence of P. Ws. 3 and 4 observing that they are interested witnesses and closely related though their evidence was not disturbed by the defendants. Merely because they are related to each other, the courts cannot brush aside their evidence on flimsy grounds more so in the absence of any rebuttal evidence produced by the defendants. I am supported in my view by a decision of the Supreme Court in Major singh v. Rattan Singh wherein it was held that the rejection of evidence by the lower court on flimsy grounds constitutes substantial question of law and the High court is justified in interfering with the matter. It was also further held therein:". . . . . . when the courts below had rejected and disbelieved the evidence on the ground that the propounder had not properly discharged his duty, it is the duty of the High Court to consider whether the reasons given by the courts below were sustainable in law. In view of the above reasoning of the trial Court as affirmed by the appellate court, necessarily the High court requires to go into that question to test the reasons. In this perspective the High Court has rightly gone into that question and found that the reasons given by the Courts below are flimsy. Thus there is substantial question of law that has arisen for consideration and the High Court has rightly considered the question. "the plaintiffs also filed Exs. A-9 to A-14, extracts of the property tax registers, and ex. A-15, the approved plan, of the lodge. Thus there is substantial question of law that has arisen for consideration and the High Court has rightly considered the question. "the plaintiffs also filed Exs. A-9 to A-14, extracts of the property tax registers, and ex. A-15, the approved plan, of the lodge. But the learned counsel for the respondents contends that the property tax registers do not really belong to the same building and that the approved plan does not indicate that the same relates to the lodge that was constructed in the premises as no door number was given. But at the same time not only the Municipality approved the plans but the Director of Town Planning relaxed the building bye-laws for construction of the buildings by the plaintiffs. It is not the case of the defendants mat the plaintiffs are having lodge other than this lodge. The question of giving door number to the lodge would arise only after construction of the building and when it is assessed to tax but not at the stage of obtaining permission for construction of the building. ( 31 ) NOW let us examine whether the evidence produced on behalf of the defendants establishes that the property belongs to Manisankar. Defendant No. 9 who was examined as D. W. I stated that his father told him that Manisankar was having properties and that he was not an orphan. It is also his case that late Manisankar constructed two upstairs rooms and he was in possession of the property and that subsequently his sister was in possession of the property after the transaction under ex. B-9. He also admits that his father was doing wine business in the schedule shop in partnership with Manisankar and that by the time the property was sold to defendant no. 5 the property was mortgaged by manisankar to Sri Kalahasthi Co-operative town Bank on 14-6-1971 under as Ex. B-7. Likewise he also mortgaged to Kailasam lakshmidevamma the property purchased by him under Ex. B-12 sale deed dt. 13-5-1968 from A. Rukmini Devi and a. Ravindrakumar, under Ex. B-8 mortgage deed dated 22-11-1971. It is also his case that after purchase of the property in the year 1980 he discharged the debt of lakshmidevamma. But, at the same time, there was no recital in Ex. B-9 about the debts raised by Manisankar or their discharge by defendant No. 6 representing defendant No. 5. B-8 mortgage deed dated 22-11-1971. It is also his case that after purchase of the property in the year 1980 he discharged the debt of lakshmidevamma. But, at the same time, there was no recital in Ex. B-9 about the debts raised by Manisankar or their discharge by defendant No. 6 representing defendant No. 5. Further it is to be seen that the sale deed was registered in the District registrar s Office, at Chittoor leaving the sub-Registrar s office at Srikalahasti. The explanation offered by him is that manisankar insisted to get the document registered at Chittoor on the ground that he would be looked down in the society if the property was registered at Srikalahasti and he came to know that fact through his father. I have no doubt to disbelieve the version of D. W. I for the simple reason that his father being a partner since 1973 should be fully aware of the habits of Manisankar and the way he was disposing of the properties and raising loans. If the explanation offered by D. W. I is true, Late manisankar would not have registered the other sales in Srikalahasti. In those circumstances, any prudent person would have verified whether late Manisankar was having conveyable title over the property or not. ( 32 ) NEXTLY the specific case of the defendants is that from the date of purchase of property they are in possession of the same. They filed a bunch of municipal tax receipts in support of their case. The first receipt is of the year 1983 and under assessment No. 4023 one Subba Lakshmi paid house tax of Rs. 336/ -. The other tax receipts relate to assessment No. 6637 and they are of the years 1995 and 1996. Under these tax receipts only an amount of rs. 227/- was paid as house tax. Admittedly while the tax under assessment No. 4023 relates to the period prior to the filing of the suit the other tax receipts relate to the period subsequent to the filing of the suit. I have no manner of doubt to hold that the first tax receipt relating to assessment no. 4023 dated 20-9-1983 does not relate to the property in question as the tax paid under that receipt and the other tax receipts are different and not tallying apart from the fact that it relates to different assessment. I have no manner of doubt to hold that the first tax receipt relating to assessment no. 4023 dated 20-9-1983 does not relate to the property in question as the tax paid under that receipt and the other tax receipts are different and not tallying apart from the fact that it relates to different assessment. ( 33 ) NEXTLY it is seen that under Ex. B-9 manisankar sold not only the shop in question but also two upstairs rooms, d. W. I categorically stated that in 1983 the plaintiffs took possession of the upstairs rooms forcibly. But he did not choose to file any suit against the plaintiffs for recovery of possession of the property. If Manisankar is the real owner, he would have not kept quite without taking action against the plaintiffs by filing a suit to recover the possession of the upstair rooms, Nextly the trial court categorically held that D-5 is not in possession of the upstairs rooms at any point of time and P. W. 2 one of the lessees in these rooms had also spoken to this fact. Having taken this view the trial court refused the relief to the plaintiffs only to the extent of the suit shop but not the upstairs rooms. But at the same time, the defendants did not file any cross appeal against the judgment and decree that went against their interest. The observation of the trial court that in view of the relationship or otherwise manisankar allowed the plaintiffs to construct two rooms over the shops and allowed the plaintiffs to enjoy the same is nothing but perverse finding. It is on record that till 1973 he was doing number of businesses and he himself would have improved the property if the property really belongs to Manisankar. But as the land does not belong to him and as the land was purchased in his name for the benefit of the plaintiffs he allowed the plaintiffs to construct the shops in the year 1968 and a lodge in the year 1978. It is also seen that while the shop was named as Mani Wines, the lodge is named as Lakshmi Lodge. It gives me an impression that the Lodge was started in the name of the first plaintiff whose name is Lakshminarsamma. It is also seen that while the shop was named as Mani Wines, the lodge is named as Lakshmi Lodge. It gives me an impression that the Lodge was started in the name of the first plaintiff whose name is Lakshminarsamma. To my mind, it appears that defendant No. 6 knowing fully well that the land belongs to the plaintiffs, taking advantage of partnership with Manisankar and his vices he took Manisankar to Chittoor to obtain sale deed in favour of his daughter. Though the respondents did not file cross appeal with regard to up stair rooms, the appellate court held that the sale effected by Late manisankar under Ex. B-9 in favour of defendant No. 5 is binding on the plaintiffs. ( 34 ) THE next contention of the learned counsel for the respondents is that there is absolutely no evidence whatsoever to show that the consideration in purchasing the property under Ex. B-1 was passed by plaintiffs 1 and 2. On the other hand, the courts below held that Manisankar was having means to purchase the suit property. But the courts below recorded the finding on the basis of a sale deed Ex. B-12 dated 13-5-1968 whereunder Manisankar purchased the property. Admittedly by mat time late Manisankar was doing several businesses and he might have purchased that property. But the real question is whether Manisankar was having any means to purchase the property under Ex. B-1 in the year 1951. Except D. W. I stating that his father told him that Manisankar was having some properties, no other evidence was placed before the Court to prove that manishankar was having means to purchase the property in 1951. On the other hand Ex. A-8, the certificate given by the dean that Manishankar appeared for B. Pharmacy Examination in April, 1957 coupled with the fact that the suit schedule shop was constructed in 1958 for opening a medical Shop by Manisankar lead to an irresistible conclusion that Manisanakr was only a student at the time of purchase of the property and he had no means to purchase the land-in the absence of any evidence that manisankar inherited properties from his parents. Hence I have no hesitation in holding that the said finding is not based on any oral or documentary evidence. Hence I have no hesitation in holding that the said finding is not based on any oral or documentary evidence. ( 35 ) I will be failing in my duty if I do not place on record the strenuous effort made by Smt. Vijayalakshmi, learned counsel for the respondents, for adjourning the pronouncement of judgment for over a number of days by citing catena of case law on that aspect. But unfortunately she has a bad case on facts. ( 36 ) IN the light of the foregoing discussion, on the probabilities and circumstances of the case and the material available on record, I have no manner of doubt in holding that the second plaintiff late Venkatachalam purchased the property under Ex. B-1 in the name of Manisankar who was fostered by him, for the benefit of the plaintiffs and that Manisankar had no means to purchase the property in the year 1951. I have a feeling that he would have been a minor at the time of purchase of property because he acquired B. Pharmacy qualification in the year 1957. But unfortunately the counsel for the plaintiffs did not make any effort to prove the case of his client in a manner known to law and it resulted in miscarriage of justice. Accordingly the judgment and decree of the courts below are set aside. ( 37 ) THE appeal is accordingly allowed and the suit O. S. No. 246 of 1985 is decreed but, in the circumstances, there shall be no order as to costs. 38. The assistance rendered by sri T. Veerabhadrayya as amicus curie is placed on record.