Bimbadhar Rout Vs. Smt. Kuna Senapati and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - (i) having executed the sale-deed under which title passed to the defendants, the plaintiff should not have been permitted to adduce parole evidence that the transactions were not sales, but were only in the form of security for the money advanced since, according to him, this is clearly hit under the provisions of section 92 of the evidence act; it totally misdirected itself in holding that the transactions were the result of fraud and, therefore, were sham transactions thereby throwing the burden on the plaintiff to prove a case of fraud like a criminal case. the lower appellate court held that the evidence possession with the defendants in respect of the disputed land was better than the evidence led by the plaintiff is not correct without the reason as to how it was better. 7. the law relating to appreciation of evidence and interference with a finding of fact by the appellate court is rather well settled. gajadhar singh, reported in air 1960 sc 115 as follows (at page 118) :where the question is not ofcredibility based entirely on the demeanour of witness observed in court but a question of inference of one fact from proved primary facts the court of appeal is in as good a position as the trial judge and is free to reverse the findings it thinks the inference made by the trial judge is not justified.d.m. patnaik, j.1. the sale point for consideration is whether the two sale-deeds executed by the plaintiff in favour of defendant no. 1 conveyed an absolute title in her favour or the same was executed only as a security for the loans incurred by the plaintiff.2. plaintiffs case is as follows:--the defendants are his distant relations and he had his confidence in them. defendant no. 2 was serving in calcutta and on retirement came to the village in 1970 and carried on money lending business under a licence. even though money landing business was prohibited under the orissa money lenders act (for short, the 'act'), yet defendant no. 2 carried on money landing business illegally. to cammouflage his transactions, he used to accept sale-deeds from the parties as securities for the loans advanced by him with an agreement that on repayment of the loan, he would reconvey the land to the loanee by way of sale.the plaintiff borrowed money, on one occasion rs. 1200/- and on the other rs. 4,000/-, and executed two sale-deeds on 10-4-1975 and 1-3-1976 respectively in favour of defendant no. 1, wife of defendant no. 2, at the first instance he repaid the loan of rs. 2,000/-. when the plaintiff approached defendants with the balance amount was demanded reconveyance of the land, the defendants refused to execute any sale-deed by giving out that it was not a mortgage but a sale out and out that he had acquired title to the property. the plaintiff filed the suit for confirmation of his possession and for cancellation of the sale-deeds, while the lower court decreed the plaintiffs suit, the lower appellate court reversed the finding and, therefore, the plaintiff is in second appeal before this court.3. mr. g. n. mohapatra, learned counsel for the plaintiff-appellant, strenuously urged that the approach of the lower appellate court to the case on the basis of the evidence on record was wholly erroneous and based on reasoning against the settled proposition of law and proved facts in the case. the learned counsel supported the reasonings and the findings of the lower court.mr. s. mishra, learned counsel for the defendants-respondents, mainly stressed two points while supporting the judgment of the lower appellate court, i.e. (i) having executed the sale-deed under which title passed to the defendants, the plaintiff should not have been permitted to adduce parole evidence that the transactions were not sales, but were only in the form of security for the money advanced since, according to him, this is clearly hit under the provisions of section 92 of the evidence act; and (ii) there is no justifiable reasons to disturb the finding of the lower appellate court which is based on the evidence on record and this court should not go for a further appreciation of evidence duly discussed by the lower appellate court.let us examine the two contentions so raised by mr. mishra.4. as regards the first point, i.e. in-admissibility of parole evidence to counter the recitals in a registered document prohibited under section 92 of the evidence act, the lower court has dealt the point in paragraph 13 of its judgment. the lower court relied on the decision in air 1982 sc 20, smt. gangabai v. smt. chhabubai, wherein the apex court followed the decision of the privy council reported in air 1936 pc 70, tyagaraja mudaliyar v. vedatghanni. in the privy council decision it is laid down that under proviso (1) to section 92 of the evidence act, oral evidence can be admitted to show that the particular document was never intended to be acted upon as per its terms laid down, but the intention of the parties was something else under than the one conveyed in the document. the court even went to the extent of laying down that even in the proviso to either of the section 91 or 92 of the evidence act, there is nothing to exclude oral evidence that there was no agreement between the parties and, therefore, no contract. the above ruling of the privy council was followed in the case of smt. gangabai (supra) which decision has been appropriately made applicable to the facts and circumstances of the present case by the trial court. this disposes the first contention of mr. mishra.5. while the lower court correctlyapplied the decision to the present case, the lower appellate court in para 6 of the judgment has wrongly applied the principles laid down in the two decisions referred to above. it totally misdirected itself in holding that the transactions were the result of fraud and, therefore, were sham transactions thereby throwing the burden on the plaintiff to prove a case of fraud like a criminal case.there was no question of fraud in the present case nor it was so alleged by the plaintiff. it is rather the case of the plaintiff that though he executed the two sale-deeds (exts. a and e), in fact, it was agreed between the parties that on repayment of the loans, defendant no. 2 would reconvey the land by way of sale. the approach of the lower appellate court that the plaintiff's case that the transactions in question being the result of any fraud is totally erroneous.for this the lower appellate court's judgment has to be interfered with. this disposed the 2nd point of mr. mishra.6. now we may examine the correctness of the reasoning of the lower court in arriving at a finding that the sale-deed (exts. a and b) were not sale out and out, but they were intended to be the securities for the loans received by the plaintiff.in arriving at such a conclusion the lower court took into account the admission of defendant no. 2 in para 3 of his cross-examination where he stated that 20 sale-deeds were executed in his favour and two sale-deeds in the name of his wife, defendant no. 1 and out of the twenty-two purchases so made, he had sold away three pieces of land under three sale-deeds. he admitted to have purchased a piece of land from the plaintiff in the year 1972 and sold the said land to madhusudan rout, nephew of the plaintiff. he further admitted to have purchased another piece of land from krushna chandra barik and sold back the land to him again. he also admitted to have purchased another piece of land from the plaintiff and sold back the same to him and this perhaps was the 'ga' schedule lands claimed by the plaintiff in the plaint and admitted by defendants in para 10of the written statement, that he had so recognised the land.nothing more important could have been brought out in the cross-examination than the present admission indicating that the defendants on many occasions had entered into such sale transactions only with a view to keep the lands so transferred as security for the loans advanced by them. the lower court found possession of the disputed land with the plaintiff notwithstanding the two sale-deeds. the finding as to such possession being based on correct appreciation of evidence and for that there was no justifiable reason for the lower appellate court to differ from such finding by reappreciation of evidence without giving the reason as to how the appreciation of evidence of the lower court with regard to possession was wrong.in cases of this nature when question of title with regard to any immovable property under any deed is concerned, possession of the land in question is of great importance to appreciate the case of the respective parties. the reasoning of the lower appellate court that possession of the land in question with either party was of 'little importance' is wholly erroneous. the lower appellate court held that the evidence possession with the defendants in respect of the disputed land was better than the evidence led by the plaintiff is not correct without the reason as to how it was better.7. the law relating to appreciation of evidence and interference with a finding of fact by the appellate court is rather well settled. it has been held in the case of radha prasad sing v. gajadhar singh, reported in air 1960 sc 115 as follows (at page 118) :--'....... where the question is not ofcredibility based entirely on the demeanour of witness observed in court but a question of inference of one fact from proved primary facts the court of appeal is in as good a position as the trial judge and is free to reverse the findings it thinks the inference made by the trial judge is not justified.'the court in para 19 of the judgment further held that in arriving at a decision onthe point of fact it was necessary to consider the probabilities of the particular story and the discrepancy is evidence and that the testimony of the witnesses has to be tested on the touch stone of probability'. keeping the law as laid down above, the lower appellate court should not have reversed the finding of the lower court merely because it chose to take a different view of the matter.8. in the present case the broad probabilities have been correctly held by the lower court was that the defendants were in the habit of accepting sale-deeds from different persons as security for the loan advanced. the lower court has believed the case of the plaintiff on the basis of this probability and has disbelieved the case of the defendants that it was a sale out and out. the lower appellate court has given various reasons in setting aside the judgment of the lower court which i do not find at all relevant for the purpose of deciding the facts in issue. rather, the lower court has given a correct approach to the case and has properly analysed the evidence on record for which the same should not have been disturbed by the lower appellate court without sufficient reasons as indicated above.9. in the result, the second appeal is allowed. the lower appellate court's judgment is set aside and that of the lower court is affirmed. parties to bear their own costs.