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Andhra High Court · body

2005 DIGILAW 291 (AP)

Y. Ramalinga Reddy v. Charla Golla Venugopal

2005-03-28

P.S.NARAYANA

body2005
P. S. NARAYANA, J. ( 1 ) HEARD Sri Vedula Venkataramana, the learned counsel representing the appellant and Sri C. Sadasiva Reddy, the learned counsel representing the first respondent. ( 2 ) THE unsuccessful second defendant in both the Courts below had preferred the second appeal. This Court on 1-5-1997 admitted the second appeal on the following substantial questions of law specified in ground No. 5 of the Memorandum of Appeal; (1) Whether the Courts below, in the absence of contest of the suit by the original owner (1st defendant) are justified in proceeding with the suit for specific performance of the suit agreement of sale, Ex. A-1, when the appellant/2nd defendant has pleaded that Ex. A-1 is a fabricated and concocted document, without framing a specific issue as to the genuineness of Ex. A-1 ? (2) Whether the Courts below are justified in appreciating the relative reliability of Ex. A-1 and B-1 of agreement of sale and whether the finding of the lower appellate Court that the improbabilities appearing in the case of the 2nd defendant over the small and minor bona fides appearing in the case of plaintiff ex. A-1, is a correct approach of adjudicating the suit claim as the burden is always on the plaintiff and any inconsistency in the case of the defendant cannot result in an advantage to the plaintiff to get a decree in the suit? (3) Whether the findings of the courts below that the appellant/2nd defendant is not a bona fide purchaser for value and without notice and hence not protected by section 19 (b) of the Specific Relief act, are sustainable in law? (4) Whether the appreciation of the evidence by the Courts below that as the suit notice Ex. A-2 was not replied and Ex. B-10 sale deed does not contain the recital about the ex. B-1 agreement of sale and ex. B-10 does not refer to the discharge of debts in Exs. B-3 to b-7, in any manner strengthen the case of the plaintiff resulting in grant of a decree for specific performance, finding that Ex B-10 sale deed is not binding on the plaintiff ? B-1 agreement of sale and ex. B-10 does not refer to the discharge of debts in Exs. B-3 to b-7, in any manner strengthen the case of the plaintiff resulting in grant of a decree for specific performance, finding that Ex B-10 sale deed is not binding on the plaintiff ? (5) Whether or not in a suit for specific performance, the civil court should give a finding that the suit agreement of sale is genuine and when the vendor did not contest the suit, whether the civil court adjudicates the genuineness of the suit agreement of sale on the self- serving evidence of the plaintiff and whether the purchaser under a sale deed is placed in a comparative disadvantageous position than the plaintiff and without framing a issue regarding the genuineness and credibility of the suit agreement of sale, can the civil court proceed to adjudicate as to whether the title of the defendant is bona fide or not, when the payment of part consideration recited in Ex A-1 is not supported by any receipt showing such payment ? ( 3 ) SRI Vedula Venkata Ramana, the learned counsel representing the appellant/ second defendant would submit that findings had been recorded by both the Courts below relating to Ex A-1 without a specific issue being framed in this regard The learned counsel also pointed out that the relief of specific performance itself is a discretionary relief and the Courts below definitely erred in decreeing the suit of the first respondent herein-plaintiff The learned counsel had taken this Court through the respective pleadings of the parties and the findings recorded by both the Courts below in this regard He placed strong reliance on manjunath Anandappa Urf Shivappa Hansi v Tammanasa and Shankarlal Narayandas mundade v The New Mofussil Company ltd. ( 4 ) PER contra, Sri C Sadasiva Reddy, the learned counsel representing the first respondent-plaintiff would maintain that in the light of the concurrent findings recorded by both the Courts below, this is not a fit case to be interfered with in a second appeal The learned counsel also pointed out that the questions of law which had been framed by the appellant/second defendant are all only questions of fact and these are not questions of law much less substantial questions of law The learned counsel also would point out that in the light of the findings, which had been recorded in detail by both the Courts below, the non-framing of specific issue relating to Ex A-1 would fall into insignificance The learned counsel also placed reliance on R B Bharatha Charyulu v R B Alivelu Manga Thayaru and Mohd kareemuddin Khan v Syed Azam in this regard. ( 5 ) HEARD both the counsel and perused the material available on record. ( 6 ) THE first respondent herein, plaintiff filed the suit OS No 115 of 1989 on the file of the Subordinate Judge, Nandyal praying for the relief of specific performance of an agreement of sale The second respondent herein, the first defendant in the suit remained ex parte The present appellant, second defendant alone contested the matter The Court of first instance had recorded the evidence of P Ws 1 and 2 and d Ws 1 to 10 and Exs A-1 to A-7, Exs B-1 to b-18 and Exs X-1 and X-2 were marked. ( 7 ) ON appreciation of the oral and documentary evidence, the Court of first instance had decreed the suit with costs granting two months time to execute the sale deed Aggrieved by the same, the second defendant preferred the appeal AS No 18 of 1994 on the file of the District Judge, kurnool and the appellate Court also dismissed the appeal, but however in the facts and circumstances of the case without costs Aggrieved by the same, the present second appeal is preferred. ( 8 ) FOR the purpose of convenience, the parties are referred to as arrayed in O S no 115 of 1989 on the file of the Subordinate judge, Nandyal. ( 8 ) FOR the purpose of convenience, the parties are referred to as arrayed in O S no 115 of 1989 on the file of the Subordinate judge, Nandyal. ( 9 ) THE first respondent, plaintiff averred in the plaint as hereunder"on 26-6-1988, D-1 agreed to sell the plaint schedule properties to the plaintiff for a sum of Rs 25,000/- and received a sum of Rs 15,000/- from the plaintiff as advance towards the purchase money and on the very same day executed a stamped agreement of sale in favour of plaintiff, agreeing to convey the plaint schedule properties to the plaintiff Plaintiff has to pay the balance of sale consideration amount to D-1 on or before 25-6-1989 and that d-1 has to execute a sale deed in favour of D-1 (plaintiff) or his nominee conveying the suit properties The defendant No 1 also acknowledging the fact of receipt of Rs 15,000/- from the plaintiff towards the purchase money Possession of the property was retained by D-1 himself and it was agreed that the properties should be delivered possession at the time of execution of the registered sale deed in favour of plaintiff at the expense of the plaintiff the plaintiff has been ready and willing to pay the balance of sale consideration amount and also register at his own expense, approached D-1 many a time and requested to receive the balance amount of Rs 10,000/- and to execute a sale deed in his favour and also deliver the possession of the properties to him. But, D-1 has been postponing the matter on some pretext or other. But, D-1 has been postponing the matter on some pretext or other. The time of performance is fixed as 25-6-1989 in the agreement of sale In June, 1989, plaintiff to his utter surprise came to know that D-1 IP collusion with D-2 clandestinely brought into existence a registered sale deed in May, 1989, purporting to sell item No 1 of the plaint schedule property to D-2 and that under the guise of the sale deed D-2 is in possession of the plaint schedule property Coming to know of this sale the plaintiff made enquiries and came to know that D-1 executed a registered sale deed on 11-5-1989 in respect of item No 1 The said sale is invalid and not binding on the plaintiff as it is subsequent to the agreement of sale in favour of the plaintiff D-2 is fully aware of the agreement of sale in favour of plaintiff in respect of suit properties and with full knowledge of the same D-2 entered into the sale transaction with d-1 As such, D-2 is not the bona fide purchaser The plaintiff issued registered notice immediately to both the defendants to execute registered sale deed after receiving the balance of sale consideration amount and deliver possession of the same to him D-2 received the notice and notice sent to d-1 was returned unserved and the postal cover D-1 committed breach of the terms of sale by executing the sale deed in favour of D-2, D-2 has no right and title to item No 1 of the plaint schedule property since D-2 is fully aware of the agreement of sale in favour of the plaintiff and that sale agreement is quite anterior in point of time to the registered sale deed In any event, D-2 is not a bona fide purchaser for value without notice The sale deed obtained by D-2 will not in any way affect the right of the plaintiff and sale agreement, plaintiff is constrained to file this suit seeking specific performance of the agreement of sale and also delivery of possession of the properties The plaintiff is ready and willing to deposit the sale consideration of Rs 10,000/- as and when directed by the Hon ble Court to do so " ( 10 ) THE second appellant herein, second defendant filed a written statement pleading as hereunder"the plaintiff has to strictly prove the alleged agreement of sale dated 26-6-1988 and passing of consideration as plaintiff has no capacity to pay the alleged sum of rs 15,000/- on the alleged date of sale agreement and that D-1 never executed the alleged sale agreement defendant is concerned with item No 1 of the land only The alleged terms and conditions of the sale agreement are also denied Since the agreement of sale itself is a faked one, the plaintiff was ready and willing to pay the balance of sale price is a false allegation It is true that the plaintiff gave notice prior to suit stating that the defendant has purchased item No 11 of plaint schedule land under a registered sale dated 11 -5-1989 in respect of item no 1 of the plaint schedule property and that the said sale deed does not bind the plaintiff as his agreement of sale is said to be prior to the sale deed in respect of plaint schedule properties but there was no need for this defendant to give any reply as the defendant was determined to fish out information and concoct some more documents Moreover, non-issuance of reply notice does not tantamount of law, the agreement of sale It is true that this defendant is in possession and enjoyment of item No 1 land as purchaser from D-1 D-1 wanted to sell item No 1 land as he was in need of money for discharging his debts There was wide publicity in the village in that regard as this defendant offered proper and adequate price of Rs 12,000/- d-1 agreed to sell the same for the said amount and executed an agreement of sale on 18-5-1988, D-1 received an advance of Rs 200/- on that day and the balance had to be paid within one year and that D-1 agreed to execute a registered sale deed in favour of this defendant Stamp duty and registration charges were to be borne by this defendant as purchaser One years time was stipulated as D-1 wanted to convince his creditors about his difficulties and get the repayments reduced regarding his debts As expected by D-1 his creditors wanted him to pay off the debts to the sale price D-2 wrote a letter dated 26-5-1988 to Sri Dattayyagaru retired village officer to see that the creditors of d-1 are paid With this D-2 was made the following amounts to the creditors of D-1 in full discharge, namely (1) Suddala Balanna Rs 900/- on 30-5-1988 (2) Punyamurthy Kondaiah for Rs 750/- on 10-6-88 (3) Gujjari ramaiah for Rs. 3,100/- on 10-6-1988, buram Eswaraiah for Rs 1,500/- on 12-10-1988 and Kottam Yellaiah for rs 2,100/-on 11-5-1989 D-1 wanted this defendant to pay the debt due by him to Co-operative Central Bank and it was ascertained as Rs 3,100/- D-1 executed a sale deed on 14-5-1989 in respect of Item No 1 of the plaint schedule land in favour of this defendant for Rs 12,000/- and that stamp duty and registration expenses were paid by this defendant D-1 gave a chit dated 11-5-1989, after verifying the discharged debts, and also after receiving the balance of Rs 350/- in cash The undertaking was that if the government wrote off the debts due by agriculturists this defendant had to pay the amount retained by him from the sale price to D-1 Unfortunately, the debts of farmers were written off. So, this defendant had to pay Rs. 3,200/- instead of Rs. 3,100/- the agreed amount and he had obtained a receipt dated 3-11-1989. The entire village knew about these transactions and payments D-1 seems to have noticed from the sale deed dated 11-5-1989 being a clever man concocted alleged agreement dated 26-6-1988 The fact remains that the agreement of sale dated 26-5-1988 in favour of this defendant by D-1 is true and acted upon It is clear that D-1 is colluding with the plaintiff to make unlawful gain himself and it is obvious understanding between the plaintiff and D-1 in that regard This defendant is bona fide purchaser for value and he is protected by law It is not known as to why the 2nd item house is mentioned in the plaint There is no whisper in the plaint about the reasons for not taking a sale deed in respect of that item if the sale agreement is true and supported by consideration The plaintiff has no cause of action against this defendant and the suit may be dismissed. " ( 11 ) ON the strength of those pleadings, the following issues were settled by the court of first instance, (1) Whether the second defendant gets any title under the registered sale deed dated 11-5-1989 executed by the 1st defendant in his favour ? (2) Whether the sale deed dated 11-5-1989 executed by the first defendant in favour of the 2nd defendant is binding on the plaintiff ? (2) Whether the sale deed dated 11-5-1989 executed by the first defendant in favour of the 2nd defendant is binding on the plaintiff ? (3) Whether the second defendant is a bona fide purchaser for value without notice (4) Whether there is no cause of action for the plaintiff against the second defendant ? (5) To what relief? ( 12 ) AS already referred to supra, the evidence of P. Ws. 1 and 2, D. Ws. 1 to 10 had been recorded and Exs. A-1 to A-7 and exs. B-1 to B-18 and Exs. X-1 and X-2 had been marked. ( 13 ) THE main controversy between the parties appears to be whether Ex. A-1 is true, valid and binding and whether the plaintiff is entitled to the relief of specific performance and whether the second defendant is a bona fide purchaser for value without notice and hence, his sale is protected In substance, these are the aspects which had been decided though several issues had been framed and findings had been recorded by the Court of first instance and equally, elaborate findings had been recorded even by the appellate Court. ( 14 ) THE following points for consideration had been framed by the appellate Court, (1) Whether Ex A-1 agreement of sale set up by the plaintiff/first respondent or whether Ex B-1 agreement of sale set up by the second defendant-appellant, pursuant to which Ex B-10 sale deed was said to have been executed in favour of the second defendant/appellant in respect of item No. 1 of the plaint schedule, is true (2) Whether the plaintiff/first respondent has got sufficient capacity to purchase the suit property and pay advance of Rs. 15,000/- under ex A-1 ? (3) Whether the plaintiff/first respondent has always been ready and willing to perform his part of contract ? (4) Whether the appellant/second defendant is a bona fide purchaser for valuable consideration without notice ? (5) Whether the plaintiff is entitled to a decree of specific performance of ex. A-1 agreement of sale and his right is not affected by Ex. B-10 sale deed in favour of the second defendant-appellant as held by the lower Court? ( 15 ) EX. A-1 is the agreement of sale dated 26-6-1988. Ex. A-2 is the office copy of notice. Ex. A-3 is the registered postal cover. Ex. A-4 is the postal acknowledgment. Exs. B-10 sale deed in favour of the second defendant-appellant as held by the lower Court? ( 15 ) EX. A-1 is the agreement of sale dated 26-6-1988. Ex. A-2 is the office copy of notice. Ex. A-3 is the registered postal cover. Ex. A-4 is the postal acknowledgment. Exs. A-5 to A-7 are income certificates. Exs. X-1 and x-2 are receipt and sale deed respectively. Likewise, Ex. B-1 is the sale agreement. Ex. B-2 is the chit sent by p. Balasubba Reddy to Dattaiah. Exs. B-3 to b-7 are discharged promissory notes. Exs. B-8 and B-9 are receipts. Ex. B-10 is the sale deed executed by D-1 in favour of ramalinga Reddy. Ex. B-11 is the cist receipt. Ex. B-12 is the certified copy of No. 2 adangal. Ex. B-13 is the certified copy of no. 10 (1) Account. Ex. B-14 is the registered copy of sale deed executed by balasubbareddy in favour of A. Chandra mallaiah. Exs. B-15 to B-17 are the endorsements marie on Exs. B-6, B-3 and b-7 respectively. Ex. B-18 is the proceedings issued by the Special Deputy Collector to p Maganna. D. W. 1 is the second defendant and the other witnesses D. Ws. 2 to 10 also were examined. The oral and documentary evidence had been considered in detail by both the Courts below. It is pertinent to note that the executant of Ex. A-1 had not contested the matter and he was set ex parte. The second defendant on the ground that he is a bona fide purchaser without notice of the prior agreement of sale had contested the litigation. It is true that there is no specific issue relating to the genuineness of the agreement of sale Ex. A-1. But, on a careful scrutiny of the findings recorded by both the Courts below, there is elaborate discussion relating to the same and hence, this Court is of the considered opinion that by non-framing of such an issue, no prejudice had been caused to either of the parties apart from this aspect of the matter, both the parties were conscious of this fact and let in evidence in this direction and findings had been recorded and hence, at this stage, it could not lie in the mouth of the appellant, second defendant to contend that because of the non framing of such issue some prejudice had been caused to him. Reliance was placed on R. B. Bharatha Charyulu s case (3 supra) wherein it was held as under:"proper issues not framed by the Trial court, but all the controversies arising out of pleadings understood by the parties, who produced the evidence relating to the same and the Court also considered all the points for determination and in such a case, matter need not be remanded back to trial court for framing proper issues and deciding them. "in Mohd. Kareemuddin Khan s case (4 supra), a Division Bench of this Court while dealing with the aspect of non-framing of the issue and the effect of the same, at para 7 observed as under:"as the appellant raised the question of the sales in favour of the defendant to have been incompetent either being in violation of the statutory provision or being without legal title to sell the land, the moot question that falls for consideration is as to whether, if the sales are found to be void, the defendants have perfected their title by adverse possession. If title is found to have been become complete against the appellants through prescriptive possession, the suit is liable to fail on account of that alone even if sales are found to be defective. It is for such reason that we intend to discuss the question of adverse possession first before going into other questions. Before such question is tackled, it is necessary first to consider the objection raised by Mr. Reddy as to the absence of issue in that regard and of specific determination on the point by the courts below. It is true that though the respondents raised the plea in the written statement of having perfected title by adverse possession, no specific issue was struck in that regard. Though ordinarily we would have been persuaded, because of such fact, to frame such an issue and remand it to the Trial Court tor finding on the same, yet we find that despite the absence of the issue, both the parties have freely gone into evidence in the matter being alive up to the position and the Trial court having addressed itseit to the question of possession and to have held the defendant having been in possession of the land since his purchase and the plaintiffs to have lost their title to the defendant since the date of purchase through the sale deeds. The position of law is well settled that where parties adduce evidence in respect of a matter for which an issue has not been struck and both sides are well aware of the dispute which relates to the issue, the defect of non-framing of the issue is cured and there will be no inherent lack of jurisdiction in the Court to go into that question and decide that aspect of the matter. It was observed in Kali Prasad v. M/s. Bharat Coking Coal Ltd. , AIR 1989 SC 1530 in Para 18 thus:"it was, however, urged for the appellant that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what there were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both Courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle. " ( 16 ) IN the light of what had been referred to supra, the contention that there was no specific issue framed relating to the genuineness of Ex. A-1 though it had been denied may not be an acceptable contention. The plaintiff and the first defendant are the natives of Pedda Devalapuram Village where the plaint schedule properties are situate and the second defendant is a native of Nandikotkur, adjoining village and the plaintiff has been residing at Nandikotkur in connection with his job as Assistant development Officer, L. I. C. Whereas, the first defendant has been residing at Mutyala camp. Raichur District of Karnataka State for the last 8 or 9 years prior to the agreement of sale set up by both the parties while the second defendant has been residing at Kurnool for the last few years. As already referred to supra, the first defendant, the executant of Ex. A-1 and Ex. B-1 had not contested the matter. D. W. 2. is the ex. Karnam of Pedda Devalapuram village and D. W. 6 is the brother of the first defendant. The second defendant obtained ex. As already referred to supra, the first defendant, the executant of Ex. A-1 and Ex. B-1 had not contested the matter. D. W. 2. is the ex. Karnam of Pedda Devalapuram village and D. W. 6 is the brother of the first defendant. The second defendant obtained ex. B-10 sale deed in his favour in relation to item No. 1 of the plaint schedule on 11-5-1989 and has been in possession of the land from the said date. D. W. 2, D. W. 6, another brother of D. W. 6 and others are attestors of Ex. B-10 and the same had been mutated in the name of the second defendant in the revenue records, which is evidenced by Ex. B-12 certified copy of No. 2 adangal and Ex. B-13 is the certified copy of no. 10 (1) Account and he has paid cist on 26-12-1989 under Ex. B-11 receipt for Faslis 1392 to 1398. He has paid a sum of rs. 3,200/- to Paramatur Farmers Service co-operative Society under Ex. B-8 and ex. X-1. Ex. B-18 is the proceedings dated 26-1-1994 in relation to the acquisition of ac. 0. 08 cents of land out of Item No. 1 for the purpose of Telugu Ganga Project, evidently, after the institution of the suit. Prior to suit, the plaintiff issued notice under Ex. A-2 to both the defendants and the second defendant received the same under Ex. A-4 postal acknowledgment and the notice sent by the first defendant was returned. The second defendant also had not chosen to give any reply. The first defendant is the scribe of Exs. B-3 to B-7 promissory notes and there are no attestors to the said promissory notes. D. W. 2 is the scribe of ex. B-1-agreement of sale and he is also attestor of Ex. B-10-sale deed in favour of the second defendant. Ex. A-1 is the stamped agreement, whereas, Ex. B-1 is the agreement on a white paper. The evidence of P. W. 1 and P. W. 2 and also the documentary evidence, which had been let in on behalf of the appellant/second defendant also had been discussed in detail and clear findings had been recorded that only with a view to defeat the agreement of sale Ex. B-1 is the agreement on a white paper. The evidence of P. W. 1 and P. W. 2 and also the documentary evidence, which had been let in on behalf of the appellant/second defendant also had been discussed in detail and clear findings had been recorded that only with a view to defeat the agreement of sale Ex. A-1, the documents were brought into existence by the second defendant and hence, the second defendant cannot be said to be a bona fide purchaser without notice of the prior agreement of sale. Strong reliance also was placed on Manjunath Anandappa uif Shivappa Hansi s case (1 supra) wherein it was held that the specific performance of contract for sale is a discretionary relief and the Apex Court also had dealt with the aspect of readiness and willingness to perform his part of the contract in the said decision, the same can be distinguished on facts. On a careful scrutiny of the facts of the said decision, the same can be distinguished on facts. ( 17 ) THEIR Lordships of the Privy Council in shankarlal Narayandas Mundade v. The new Mofussil Company Ltd. (vide 2 supra) held as under:"where after entering into a contract for the sale of certain property with the plaintiff the vendor subsequently contracts to sell the same property to the defendant, then in a suit by the plaintiff under Section 27 of the specific performance of the contract in his favour, the burden of proving good faith and lack of notice of the contract lies upon the defendant. "reliance was also placed on Bhup Narain singh v. Gokul Chand Mahton Sec. 19 (b) of the SPECIFIC RELIEF ACT, 1963 specifies as under:"except as otherwise provided by this chapter, specific performance of a contract may be enforced against:- (a ). . . . . . . . . . . . . (b) any other person claiming under him by a title arising subsequentiy to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. . . . . . . . . . . . . (b) any other person claiming under him by a title arising subsequentiy to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. "in Munna Lal v. Smt. Krishna Kumari while dealing with subsequent transferee and whether he is purchaser in good faith without notice and while observing that good faith is one of fact, the Court observed as hereunder:"the initial burden of proving that subsequent transferee is a purchaser in good faith and without notice within section 19 (b) is upon the transferee and not upon the transferor. He has to establish the circumstances which would entitle him to the benefit of s. 19 (b ). The question of good faith is always a question of fact depending upon the facts and circumstances of each case. No hard and fast rule can be laid down as to the quantum of evidence that should be produced to convince the Court that the party has acted in good faith. Therefore, no single circumstance can by itself have the effect of dislodging the Court from holding that a transaction in fact has been entered into in good faith. Other facts and circumstances may be good enough to satisfy the Court. Where due enquiries were made by the transferee which were backed by further investigations at the Registration Office to find out whethe there had been any earlier transaction of sale with regard to the property in question these circumstances would be sufficient to attribute good faith to the transferee and on this basis it can also be safely held that the transferee had no notice of the earlier agreement of sale which had been entered into between the transferor and the plaintiff suing for specific performance. " ( 18 ) BE that as it may. This is a second appeal where concurrent findings had been recorded to the effect that the appellant/ second defendant is not a bona fide purchaser for value without notice and first respondent/plaintiff is entitled to the relief of specific performance. " ( 18 ) BE that as it may. This is a second appeal where concurrent findings had been recorded to the effect that the appellant/ second defendant is not a bona fide purchaser for value without notice and first respondent/plaintiff is entitled to the relief of specific performance. When concurrent findings had been recorded and discretion had been exercised by both the Courts below, and the executant, the first defendant had not contested the matter at all, at the instance of the second defendant and in view of the limitations imposed under section 100 of the Code of Civil Procedure on this Court, it would be unjust to disturb such findings in relation to facts, which had been recorded by both the Courts below. It is needless to say that the evidence of the second defendant also may have to be looked into and appreciated in proper perspective. In Sayeda Adkhtar v. Abdyul ahad it was held as under;"high Court in second appeal cannot, without sufficient and just reasons, interfere with concurrent findings of fact of the Courts below. "the same view was expressed in Kasinath v. Jaganath and in Krishna Mohan Kul Alias nani Charan Kul v. Pratima Malty. The decisions are too numerous and the same is well settled in this regard. The counsel representing the appellant could not point out any aspect to substantiate that the factual findings are either perverse or based on no evidence or total misappreciation of the oral evidence or misinterpretation of the documentary evidence available on record. Hence, in the light of the fact that concurrent findings had been recorded by both the courts below, this Court is of the considered opinion that this is not a fit matter to be interfered with in a second appeal. ( 19 ) ACCORDINGLY, the second appeal is hereby dismissed being devoid of merits. In the peculiar facts and circumstances, no order as to costs.