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PETITIONER: OTHAYATH LEKSHMY AND ANR.

       Vs.

RESPONDENT: NELLACHINKUNIYIL GOVINDAN NAIR AND ORS.

DATE OF JUDGMENT19/04/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) RAY, B.C. (J)

CITATION:  1990 SCR  (2) 539        1990 SCC  (3) 374  JT 1990 (3)   230        1990 SCALE  (1)196

ACT:     Kerala  Land Reforms Act--Amended by 9 of 1967 &  35  of 1969-Section 13(B)--When the tenant is entitled for restora- tion of possession or when the bona fide purchaser is  enti- tled for protection. Constitution  of India, 1950. Article  136--Interference  of Supreme Court--Where manifest injustice or grave miscarriage of Justice results.

HEADNOTE:      The appellants fried an Execution Application in  1970 in  the  Court of Munsiff under Section 13(B)  of  the  Land Reforms  Act 1969 for the restoration of the  possession  of the properties which were sold in Court auction in pursuance of a decree for arrears of rent. The decree holder and Court auction purchasers were close relatives. The sale took place on 26.11. 1962 and was confirmed on 14.8.1964. It is the 3rd Respondent  a stranger in the present appeal  who  purchased the property in the Court auction and got the possession  of the  same  on 9.1.1965 from the appellants.  The  appellants trespassed into the suit property again and were ejected  in 1966  pursuant  to a decree in a suit.  Thereafter  the  3rd Respondent i.e. the auction purchaser assigned the  property in favour of Respondents No. 1 & 2 who were the close  rela- tives vide sale deeds dated 5.12.1966 (Exts A2 and A3).  The appellants  had  already filed  Execution  Application,  for restoration of possession after making necessary deposit for the  purchase  money under section 6 of Act 9 of  1967.  The same was pending when Act 35 of 1969 came into force and  so the  appellants made an application with a prayer  that  the earlier deposit be treated as a deposit under section  13(B) of 1969 Act.     The Court auction purchaser i.e. 3rd Respondent and  his assignees  Respondents  No. 1 & 2  strongly  contended  that appellants  have no interest in the properties.  The  appel- lants  attacked  the validity of the sale deeds  being  made without consideration. The trial Court held that the  appel- lants were tenants when they were dispossessed and also held that  the deposit made by the appellants was sufficient  for restoration of possession, and Respondents No. 1 & 2 are not bona fide purchasers for consideration, and hence set  aside the sale.

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The  Respondents No. 1 & 2 made application before the  sub- court 540 and  the court held the petitioners were competent to  main- tain  the application and were bona fide purchasers  as  per records such as revenue and tax receipts plus the  admission of the vendor and vendee as to the payment of consideration. As  to the deposit made by the appellants it was  considered to be sufficient in case they were found entitled for resto- ration  of possession; set aside the Trial Court  order  and allowed the appeal.     The appellants therefore filed E.S.A. in the High  Court and  the High Court upheld that the decision and the  decree of the lower Appellate Court as per evidence, and as circum- stances of the case complied with public records  establish- ing that Respondents 1 & 2 are the bona fide purchasers  for consideration. But the first appellate court concurred  with the  Trial  Court regarding the deposit already made  to  be sufficient and the interest accrued would be directed to  be deposited if the appellants were found entitled to  restora- tion of possession. The said finding has not been  dislodged by the High Court. Allowing the Special Leave Petition, this Court,     HELD: In the instant case, two substantial questions are involved  i.e. (1) whether respondents 1 & 2 are  bona  fide purchasers  of  the scheduled land in dispute  for  adequate consideration  and  thereby entitled to the benefit  of  the proviso  inserted  vide  Act 35 of 1969  to  sec.  13(B)(1). [547F]     (2)  Whether the appellants are entitled to the  benefit of subsection (1) of section 13(B) of the Act. [547F-G]     As per section 13(B)--where any holding has been sold in execution  of any decree for arrears of rent and the  tenant has  been dispossessed of the holding after the 1st  day  of April  1964 and before the commencement of the  Kerala  Land Reforms  (Amendment)  Act 1969, such sale  shall  stand  set aside  and such tenant shall be entitled to  restoration  of possession of the holding subject to the provisions of  this section. [558 B-C]     Provided that nothing in this sub-section shah apply  in any  case  where the holding has been sold to  a  bona  fide purchaser  for consideration after the date of such  dispos- session  and  before the date of the publication  of  Kerala Land Reforms (Amendment) Bill 1968 in the Gazettee. [554D-E] 541     The  concurrent finding of facts by both  the  appellate courts  that Respondents No. 1 & 2 are bona fide  purchasers for  consideration  warrant interference  because  both  the appellate courts have conveniently ignored and excluded from consideration even the relationship of the parties  inter-se i.e.  the decree bolder, court auction purchaser  are  close relatives and have assigned the property in favour of  their close relatives and a stranger- This assumes much importance and significance in evaluating the evidence in the light  of the facts and circumstances of the case for reaching  satis- factory  conclusion.  The  court has failed  to  render  any finding on substantial question of Law. The lack of recitals with  regard to the consideration has also  been  completely ignored-  It seemed to have disposed of the case  summarily. [553B-D]     It  is  not merely the inadequacy  of  consideration  as pointed  out by the lower appellate court but there is  lack of evidence in substantiating the recitals of the  documents that  Respondents  No. 1 & 2 are bona fide  purchasers.  The receipts  for  the payment of tax, rent or  revenue  are  by

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themselves  cannot  dispel  the claims  of  the  appellants. [545C]     The  conclusion  arrived at by both the courts  is  only backed  by  assertions rather than by  acceptable  reasoning based on the proper evaluation of evidence. So the  evidence and  circumstances of the case coupled with the evidence  on record do establish that the Respondents 1 & 2 are not  bona fide purchasers for consideration. [553E-F]     Discretionary  powers under Article 136 has to be  exer- cised  sparingly but when there are exceptional and  special circumstances  justifying  the  exercise  of   discretionary powers and where manifest injustice or grave miscarriage  of justice has resulted by overlooking or ignoring or excluding material  evidence resulting in undue hardships, this  Court will  be justified in stepping in and interfering  with  the concurrent findings of facts in the interest of justice  and it is also the duty of this Court to remedy the injustice so resulted.  Dipak Baneriee v. Lilabatichakraborty,  [1987]  4 SCC 161, relied on. [552H; 553A-B]      On the question whether the appellants are entitled  to the  benefit  of section 13(B)(1) of the Act, it  was  held: [553G]      The Kerala Land Reforms Act of 1963 came into force  on 1.4.1964, Act 9 of 1967 was a temporary Act and remained  in force  till 31.12.1969, Act 35 of 1969 came into force  from 1.1.1970  and  section 13(B) is substantially  on  the  same terms as section 6 of 1967 Act with a 542 proviso super-added. To invoke section 13(B) two  conditions are  sine  qua  non. (1) Any holding to which  a  tenant  is entitled to restoration of possession should have been  sold in  execution  of any decree for arrears of  rent.  (2)  The tenant  should have been dispossessed of the  holding  after 1.4.1964  and  before the commencement of 1969  Act.  [553H; 554A-C]     Thus  the  tenant shall be entitled  to  restoration  of possession  under section 13(B) provided the holding is  not sold  to a bona fide purchaser for consideration, after  the date  of  dispossession and before the  publication  of  the Kerala  Land Reforms (Amendment) Bill 1968 in the  Gazettee. The  appellants  are entitled to have the  benefit  of  sub- section  (1)  of section 13(B) only if they  have  made  the deposit of the purchase money together with interest at  the rate  of 6% Per Annum in the Court and applied to the  Court for setting aside the sale and for restoration of the  hold- ing.  The  appellants in the instant case had  already  made deposit  under  1967 Act and it was pending when Act  35  of 1969 came into force. So the appellants made an  application with  a  prayer  to treat the  said  deposites  continuation unaffected by the provisions of 1969 Act. [554D-F]     The Language of section 13(B) is plain, clear and  unam- biguous  and  the  very purpose of the section  is  to  vest rights  on  the  displaced tenants, which  is  the  dominant purpose of the statute, which should be considered. [554G-H]     P. Rami Reddy & Ors. v. State of Andhra Pradesh &  Ors., [1988]  3 SCC 433: Skandia Insurance Co.  Ltd..v.  Kokilaben Chandravadan  &  Ors.,  [1987] 2 SCC 654  and  M/s.  Doypack Systems  Pvt.  Ltd. v. Union of India & Ors., [1988]  2  SCC 299. relied on.     The sale of holdings of the appellants was in  execution of  the decree for arrears of rent in O.S. No. 817 of  1943, and  appellants  are tenants who were  dispossessed  of  the holdings after 1.4.1964 and before the commencement of  1969 Act.  They are therefore entitled to restoration of  posses- sion  of the properties in dispute but without prejudice  of

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the  rights if any of the Respondents Nos. 7 to 10  who  are the  wife and children of Gopalan Nambiar. The amount  under deposit made by the appellants is permitted to be  withdrawn by respondents 1 to 3. [558B-C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1924  of 1990.     From the Judgment and Order dated 6.8.1986 of the Kerala High Court in E.S.A. No. 15 of 1979. 543     K.K. Venugopa|, M.K. Sasidharan and P.K. Pillai for  the Appellants.     T.S.  Krishnamoorthy Iyer, P.S. Poti,  S.  Balakrishnan, Deepak  Nargoalkar, E.M.S. Anam, R.M. Keshwani, M.K.D.  Nam- boodiri and Irfan Ahmed for the Respondents. The Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. Special leave granted.     The  unsuccessful appellants herein have preferred  this appeal  against  the judgment of the High  Court  of  Kerala dated  6.8.1985 passed in E.S.A. (Execution  Second  Appeal) No.  15  of 1979 whereby the High Court dismissed  the  said appeal  filed by the appellants. The relevant  facts  giving rise  to this appeal are necessary to be  recapitulated  and they are as follows:     Othayath  Gopalan  Nambiar  (since  dead)  and  Othayath Lekshmy  Amma (who is the first appellant herein)  filed  an Execution  Application No. 556 of 1970 in Original Suit  No. 817  of 1943 in the court of the Munsiff of  Badagara  under Section  13(B)  of the Land Reforms Act, as amended  by  the Amending  Act  35 of 1969 (hereinafter referred  to  as  the ’Act’)  for  restoration  of possession  of  the  properties mentioned  in  the schedule of the application,  which  were sold  in court auction for arrears of rent in  pursuance  of the decree made in O.S. No. 817 of 1943.1t seems that during the pendency of the proceedings before the Munsiff, Othayath Gopalan  Nambiar died and thereafter the  first  appellant’s son  claiming to be the karnavan of the tavazhi got  himself impleaded  as  the third petitioner in  the  said  Execution Application, who is figuring as the second appellant herein.     In order to decide the questions that arise for  consid- eration, certain salient and material facts may be recapitu- lated. The suit, O.S. ’No. 817 of 1943 was filed for  recov- ery  of  arrears of rent of Rs.815 for the  Malayalam  years 1116  to  1118, corresponding to English era 1941  to  1943. There  were 11 defendants of whom Othayath  Gopalan  Nambiar and  the  first  appellant were the defendants 2  and  3.  A preliminary  decree was passed on 26.5.1944 followed by  the final decree on 29.11. 1944. The decree-holder assigned  the decree to another member of his family, who in turn assigned it to one Kunhikannan. The rights of Kunhikannan devolved on Respondents  2  to 4 in the Execution  Application  who  are Respondents 4 to 6 in this appeal and who brought the 544 property  to sale. The sale took place on 26.11.  1962.  One Thekkayil Kanaran who was the first Respondent in the Execu- tion Application, i.e. the third Respondent herein purchased the property in the Court auction held on 26.11.1962,  which sale  was confirmed on 14.8. 1964 and consequently  obtained delivery  of  the disputed scheduled property  extending  to 8.70  acres  of double crop wet land through court  on  9.1. 1965  from the possession of the appellants. Ex. C 3 is  the delivery  account  and  report submitted by  the  Amin.  The

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remaining  extent of the property was in the  possession  of the  sub-tenants  in respect of which there  was  resistence with which we are not concerned here.     After  the delivery has been effected,  Gopalan  Nambiar and  the  first appellant herein trespassed  into  the  suit property. Therefore, the Court auction purchaser filed  O.S. 6 of 1966 in the court of the Subordinate Judge of  Badagara for recovery of possession. The suit was decreed as per  the judgment  Ex. B 16 dated 27.7.1966. Ex. B 15 is the  decree. Ex B 49 dated 25.8.1966 and Ex. B 50 dated 22.8.1966 are the respective certified copies of the delivery account  submit- ted by the  Amin and the delivery warrant issued to Amin  in O.S.  No. 6 of 1966. The auction purchaser, i.e.  third  re- spondent  in this appeal assigned portions of  the  property under sale-deeds Exts. A2 and A3 dated 5.12.1966 to the  5th and  6th respondents in the Execution Application,  who  are the first and second respondent in this appeal. 1t is stated that  while  the first respondent is  stranger,  the  second respondent  is  none other than the wife of the  fourth  re- spondent.  As we have pointed out earlier, this  fourth  re- spondent  is among the three respondents on whom the  rights of Kunhikannan devolved.     While it is so, Act 9 of 1967 came into force. So  Gopa- lan Nambiar and the first appellant filed Execution Applica- tion  No. 1711 of 1967 for restoration of  possession  under the  said  amended Act after making the  necessary  deposit. While this E.A. was pending, Act 35 of 1969 tame into  force (Kerala Land Reforms Amendment Act) repealing Act 9 of 1967. So  the appellants filed E.A. 556/70 under Section 13  B  of the  Act  for restoration of possession with a  prayer  that earlier  deposit  made under Act 9 of 1967 be treated  as  a deposit under Act 35 of 1969 and also under took to pay  the balance,  if any, as would be found by the Court. The  third respondent  (court  auction  purchaser)  and  his  assignees Respondents  1 and 2 contended that the appellants  have  no interest in the properties and the delivery of the  property had already been taken. The appellants attacked the validity of  Ex. A2 and A3 contending that the assignments in  favour of  Respondents 1 and 2 were made without consideration  and bona fides and that auction 545 purchaser  Thekkayil  Kanaran, Respondent No. 3 was  only  a benamidar  of the decree-holder in the matter of  the  Court auction purchase. This application (E.A. 556/70) was stoutly opposed  by the respondents inter-alia contending  that  the properties  did not belong to the Tavazhi of the  appellants and the appellants have no right to the suit properties  and are  not  entitled to apply for restoration  of  possession. According to the respondents, there is no valid deposit  and after the delivery of the property has been effected,  Gopa- lan Nambiar trespassed into the properties and he was eject- ed by recourse to a suit and thereafter the properties  were assigned to Respondents 1 and 2 for proper consideration and bona  fides and they are in possession of the properties  on the  strength of the said sale-deeds. The Trial  Court  held that the appellants were the tenants of the properties  when they  were dispossessed and the deposit made by  the  appel- lants  was  sufficient and the Respondents 1 and 2  are  not bona fide purchasers for consideration. On the said  finding it allowed E .A. 556/70 and set aside the sale.     Aggrieved by the order of the Trial Court, the  Respond- ents 1 and 2 filed A.S. 49/74 before the Sub Court,  Badaga- ra,  which for deciding the appeal posed the following  four points for its consideration, namely: 1. Are the Petitioners entitled to maintain the application?

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2. Is the deposit sufficient? 3. Are the appellants bona fide purchaser for consideration?    4.  Whether the court sale is liable to be set aside  and the restoration of possession claimed allowable? If so,  are the  petitioners liable to pay anything by way of  value  of improvements? The learned Judge answered the first point-- "that the petitioners are competent to maintain the applica- tion," and the second point holding-- "   .....  that the deposit when it was made is  sufficient. However the interest accrued till date of the present appli- cation  will be directed to be deposited in case  the  peti- tioners are found entitled to restoration of possession." 546 Coming to the third point it has been held thus-- "The  first  respondent  (third respondent  in  S.L.P.)  had absolutely  no necessity to execute any sham documents.  The fact  that respondents 5 and 6 (Respondents 1 and 2  in  the SLP)  came into possession and exercised their rights  under Exhibits  A2 and A3 by payment of rent and revenue and  pay- ment  of  consideration  spoken to by both  the  vendor  and vendee  are sufficient to hold that they are bona fide  pur- chasers for consideration." Under the fourth point, the relief claimed by the appellants was  held  to be rejected. In the result, the order  of  the Trial  Court was set aside and the appeal was  allowed  dis- missing E.A. 556/70.     The  learned  Subordinate Judge has also  expressed  his opinion  in his judgment that in summary  proceedings  under Section 13B of the Act, the plea of the appellants that  the third  respondent was a benamidar of the  fourth  respondent cannot be allowed to be raised in the light of Section 66 of the Civil Procedure Code.     On being dissatisfied with the judgment of the  Subordi- nate  Judge, the appellants preferred E.S.A. No. 15/79.  The respondents  filed their cross objections. Though  the  High Court admitted the appeal on being satisfied that the appeal involves  as  many as 11 substantial questions  of  law,  it disposed the appeal on a short ground that the documents and the  evidence adduced by the respondents 1 and  2  (Govindan Nair and Ambrolil Ammalu) clearly show that the  respondents 1 and 2 are bona fide purchasers of the properties in  ques- tion  for consideration and the plea of benami put forth  by the  appellants has to be negatived. The contentions in  the cross  objections were that for filing an application  under Section 13(B)(1) of the Act, a deposit of the purchase money together  with  the interest at the rate of 6 per  cent  per annum  in  the court is a condition precedent and  that  the finding of the lower Appellate Court that the earlier depos- it made under Act 9 of 1967 was sufficient and the  interest accrued till the date of the Execution Application under Act 35  of  1969 would be directed to be deposited in  case  the appellants were found entitled to restoration of  possession of  the property is erroneous. The High Court  disposed  the contentions in the main appeal observing thus: "It  is  not necessary for me to examine this  question  and finally  adjudicate it, since I have upheld the decision  of the 547 lower appellate Court on other grounds. I only indicate that the  respondents’ counsel thought to sustain the  conclusion of the lower appellate court on other grounds as well." In  the  result, the High Court affirmed the decree  of  the lower  Appellate Court and dismissed the second Appeal  with

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costs. So far as the cross-objections are concerned, the High Court passed the following order: "There is no need to dispose of the cross-objections on  the merits. It is ordered accordingly." Hence the appellants by this appeal are impunging the  judg- ment of the High Court.     Mr.  K.K. Venugopal, Sr. Counsel appearing on behalf  of the appellants, Mr. T.S. Krishnamurthy lyer, Sr. Counsel and Mr. P.S. Poti, St. Counsel appearing on behalf of the  first and second respondents respectively took us very meticulous- ly  and scrupulously through the judgments of all the  three courts and put forth the case of their respective parties.     Having  heard the learned counsel on either side  for  a considerable length of time, we are clearly of the view on a conspectus  of the relevant Section 13(B) of the Act and  on the  factual matrix of the case that the result of the  case would depend upon the decision of two substantial  questions involved, they being--    (1) Whether respondents 1 and 2 are bona fide  purchasers of the scheduled land in dispute for adequate  consideration entitling to the benefit of the proviso to Section 13(B)(1)?    (2) Whether the appellants are entitled to the benefit of subSection (1) of Section 13(B) of the Act?     Before making a more detailed and searching analysis  on different  aspects  of the case, it would be  necessary  for proper understanding of the issues involved to reproduce the relevant  provisions of Section 13(B)(1) of the Act, on  the pivotal of which both the questions revolve. Section 13B: There is no requirement in any of the clauses 548 that  an  offer of readiness to comply with  any  order  for deposit  of costs must be expressed in any judgment,  decree or order of court, where any holding has been sold in execu- tion  of any decree for arrears of rent, and the tenant  has been dispossessed of the holding after the 1st day of April, 1964 and before the commencement of the Kerala Land  Reforms (Amendment)  Act, 1969, such sale shall stand set aside  and such  tenant shall be entitled to restoration of  possession of the holding, subject to the provisions of this Section; Provided that nothing in this sub-Section shall apply in any case where the holding has been sold to a bona fide purchas- er  for Consideration after the date of  such  dispossession and  before the date of publication of the Kerala  Land  Re- forms (Amendment) Bill, 1968 in the Gazette.     If  the answer to the first question is in the  affirma- tive, then there is no need to consider the second  question as  it  would  be only academic. We,  therefore,  shall  now address ourselves in the first instance whether the  concur- rent finding of facts by both the Appellate Courts  relating to the first question warrant interference.     Before  the Trial Court whilst the  appellants  examined PWs  1 to 4 and filed Exhibits A 1 to A22,  the  respondents examined  RWs  1  to 4 and marked Exhibits B. 1  to  B  .58. Besides,  Ex.  X- 1, X-2, X-3, X-5 and X-6 and C. 1  to  C.4 were also exhibited.     The  Respondents 4 to 6 admittedly are brothers.  Though at the initial stage, Mr. Krishnamurthy Iyer did not  accept the relationship of the third Respondent with Respondents  4 to  6  on the ground of lack of  evidence,  subsequently  no serious dispute was raised about the said relationship.  The Trial Court has proceeded on the ground that the Respondents 3  to 6 are brothers being the sons of Kunhikannan in  whose favour the decree had been assigned. However, it is admitted during  the course of hearing of this appeal that the  third

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Respondent  is not a direct brother of Respondents 4  to  6, but son of the step-mother of Respondents 4 to 6. The second Respondent  Ambrolil  Ammalu is admittedly the wife  of  the fourth  Respondent Krishnan. The first  Respondent  Govindan Nair is a stranger. The third Respondent, the Court  auction purchaser  sold the property extending 4.35 acres in  favour of the first Respondent and the remaining half in favour  of the  second  Respondent under sale-deeds Exts. A.2  and  A.3 dated 549 5.12.  1966.  Consideration mentioned in each of  the  sale- deeds  Exts. A.2 and A.3 is Rs.3,000. Out of Rs.3,000  shown as  consideration for A.2 a sum of Rs.2,500 is said to  have been  left with the first Respondent for payment of  arrears of rent. In Ex. A.3, it is recited that the third respondent is  said to have already received Rs.2,000 on  a  promissory note  from  the second Respondent for meeting  the  expenses incurred  by him for conducting O.S. No. 6/66. The said  sum of  Rs.2,000  is stated to have been  adjusted  towards  the consideration under Ex. A3.     The  first Respondent has produced a receipt  (Ex.  B28) showing that out of the amount of Rs.2,500 left with him  he had  paid a sum of Rs. 100. There is no other document  evi- dencing the discharge of the entire alleged arrears of  rent out-of  Rs.2,400. When the third Respondent  was  questioned about  the  promissory note on the strength of which  he  is stated  to  have borrowed a sum of Rs.2,000, he  has  stated that  he had returned the promissory note. This evidence  as rightly pointed out by Mr. Venugopal is highly  unacceptable because  in  usual practice whenever a debt, borrowed  on  a promissory  note is discharged that promissory note  is  re- turned  to  the  borrower and never left  with  the  lender. Moreover,  the evidence of the third Respondent  is  contra- dicted by RW. 3, the son of the second Respondent. According to RW. 3, when Ex. A.3 was executed, the promissory note was returned  to the third Respondent. According to Mr.  Venugo- pal, this contradictory version betwixt the evidence of  the first  Respondent and RW. 3 clearly shows that  the  recital regarding payment of consideration to the extent of Rs.2,000 in Ex. A.3 is not genuine and acceptable and that Ex. A.3 is not fully supported by consideration. As per the recitals of consideration  under  Exhibits A.2 and A.3  the  total  cash consideration received by the third Respondent was only  Rs. 1,500 i.e. Rs.500 from the first Respondent and Rs.1000 from the  second Respondent. It is vehemently urged on behalf  of the  appellants that the third Respondent  after  purchasing the  property for Rs.815 in 1962 would not have parted  with it after fighting several litigations for a cash  considera- tion of Rs.1,500 only. The evidence of the third  Respondent that he left a sum of Rs.2,500 with the first Respondent for discharging  arrears of rent and earlier received a  sum  of Rs.2,000 from the second Respondent on a promissory note  is not credit worthy in the absence of any supporting contempo- rary  documentary evidence. His assertion that he  paid  the amount  for the Court auction purchase in the year 1962  out of  the money in his possession as well as  from  borrowings shows  that he was a man of slender means. When he was  con- fronted  from whom he borrowed that amount, his  answer  was that he did not remember from whom and how much he borrowed. The 550 Trial  Court has rightly pointed out in paragraph 19 of  its Order that the third Respondent did not leave any impression that he was conversant with the various pending  litigations regarding the present property.

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   Mr.  Venugopal  drew out attention to another  piece  of evidence of RW3, deposing that his father was never consult- ed  with regard to Ex. A3 and assailed his evidence  as  in- credible  and bereft of truthfulness and  trust  worthiness. Coming to the sale-deed, Ex. A2 it is stated that the  first Respondent  is  residing about 11 miles  away  from  Palayed Amson  where  the  property is situated.  He  has  no  other property  in Amson. The reason given by him  for  purchasing this  property which was already riddled with litigation  is not at all convincing.     The first appellate Court while perfunctorily  rejecting the reasoning of the Trial Court with regard to the  consid- eration part of Ex. A2 and A3 disposed of that contention in a summary manner holding: "The apparent inadequacy is no ground to think that there is no consideration  .....  I don’t think that the recitals  in Exhibits  A2 and A3 can be overlooked for this or the  other reasons stated by the learned Munsiff."     Then relying on Exhibits B 17, B28, B31, B41 and B45 and other documents it concluded: "that  the Respondents 1 and 2 came into possession  of  the properties and exercised their rights under Exhibits A2  and A3 by payment of rent and revenue and payment of  considera- tion  spoken  to by both the vendor and vendee and  as  such they are bona fide purchasers for consideration."     The  High Court accepting the reasons given by the  sub- Judge held thus: "Most  of  these documents are public records  or  registers kept  in  the respective village office and  proceedings  in courts. There is no more of law in placing reliance on  such documents.  The finding entered by the  learned  Subordinate Judge that respondents 5 and 6 are bona fide purchasers  for consideration is based on substantial evidence. It cannot be said to be arbitrary or unreasonable or perverse. ’ ’ 551     But both the Appellate Courts have conveniently  ignored even  the  relationship of the parties  which  assumes  much importance  and significance in evaluating the  evidence  in the  light  of the facts and circumstances of the  case  for reaching a satisfactory conclusion and seem to have summari- ly disposed of the case of the appellants.     The question is not the mere inadequacy of consideration as  pointed by the lower appellate Court, but lack  of  evi- dence in substantiating the recitals of both the  documents. The next contention advanced by Mr. Venugopal is that though the  High  Court has formulated as many  as  11  substantial questions of law. it has not dealt with any of them  enumer- ated as (a) to (e) and examined the question No. (f) in  the proper  perspective. Further the important question No.  (g) reading "rs not the admitted fact that the 6th respondent is the wife of the 2nd respondent prima facie proof that she is not  a bona .fide purchaser for value" is not at  all  dealt with.  It may be noted in this connection that the  6th  re- spondent and the 2nd respondent referred to in that question are  Ambrolil  Ammalu (2nd respondent herein)  and  Krishnan (4th respondent herein). As pointed out supra the High Court itself has expressed that it was inclined to dispose of  the appeal ’on a short ground’.     The bone of contention of Mr. Krishnamurthy Iyer and Mr. Poti  is that it is not open to the appellants to  reagitate the matter and request this Court to disturb the  concurrent finding  of  facts arrived at by both the  appellate  Courts which  had rendered their findings on the proper  evaluation of the evidence and there can be no justification to  review or re-appreciate the evidence to take a contrary view in the

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absence  of any contemporaneous document in support  of  the plea  of the appellants. In addition to the above, Mr.  Poti urged that the appellants have not properly and  satisfacto- rily  discharged  the onus of proof cast upon them  and  the concurrent  findings  based  on  voluminous  documents,  the copies  of which are not annexed to the SLP for  perusal  of this Court, do not call for interference.     In  reply  to  the above arguments,  Mr.  Venugopal  has pointed  out that none of the documents referred to  in  the judgments  of the appellate Courts would either improve  the case  of  the respondents or deny the claims of  the  appel- lants. Of the documents relied upon by the appellate Courts, Ex.  B 17 and B31 are the true extracts showing  payment  of tax  in  the  Village Officer Day Book. Ex. B28  is  a  rent receipt dated 23.2.1969 issued by the receiver appointed  in O.S.  1/64  on the file of the Sub  Court  (lower  appellate Court). B. 42 is a true extract 552 from the Foodgrains Cultivation Register and B.46 is a  true extract  from  the Peringathor Village Account.  Ex.B.41  to B.45 are the levy notices and revenue receipts for the years 1967, 1968. 1969 and 1973. Exhibits B.55 to B.59 are  copies of  orders in M.C. No. 3/71. As rightly pointed out  by  Mr. Venugopal,  it is but natural that the receipt for the  pay- ment of tax, rent receipt, revenue receipt etc., are in  the names of the persons in whose names the properties stand and therefore  those documents cannot by themselves  dispel  the claim  of the appellants. Besides, urging with  aH  emphasis that Exhibits A2 and A3 are only sham and nominal documents, it  has  been incidentally urged by Mr. Venugopal  that  the transaction under these two sale-deeds is benami in  nature. This argument was stoutly resisted by Mr. Krishnamurthy Iyer stating that in the teeth of Section 66 of the Code of Civil Procedure and in the absence of any proceedings to set aside the  sale in favour of respondents 5 and 6 on the ground  of fraud etc., the plea of benami transaction cannot be counte- nanced. He also cited the decision in Mithilesh Kutnari  and Another  v.  Prem  Behari Khare, [1989] 2 SCC  95.  But  Mr. Venugopal  explained his argument that he has  not  advanced that  argument to set aside the sale-deeds on the ground  of benami  transaction, but only for scrutinising  the  circum- stances of the transaction in examining the validity of  the sale-deeds.  However, as the plea of benami  transaction  is not pressed into service, it need not detain us any more.     We  shah now examine whether this Court would be  justi- fied in interfering with the concurrent finding of facts  in exercise  of its discretionary powers under Article  136  of the  Constitution  of India. In a recent decision  in  Dipak Banerjee  v. Lilabati Chakraborty, [1987] 4 SCC 161  it  has been observed thus: "That jurisdiction (under Article 136 of the Constitution of India) has to be exercised sparingly. But, that cannot  mean thai injustice must be perpetuated because it has been  done two  or three times in a case. The burden of showing that  a concurrent  decision of two or more courts or  tribunals  is manifestly  unjust  lies  on the appellant.  But  once  that burden is discharged, it is not only the right but the  duty of the Supreme Court to remedy the injustice."     No  doubt, this discretionary power has to be  exercised sparingly;  Out when there are exceptional and special  cir- cumstances  justifying  the exercise  of  the  discretionary powers and where manifest injustice or grave miscarriage  of justice has resulted by overlooking or ignoring or 553 excluding  material evidence resulting in  unduly  excessive

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hardships,  this Court will be justified in stepping in  and interfering  with  the concurrent finding of  facts  in  the interest of justice and it is also the duty of this Court to remedy  the  injustice, so resulted. Vide Basudev  Hazra  v. Meutiar  Rahaman  Mandal, [1971] 3 SCR 378 and  Bhanu  Kumar Shastri  v. Mohan Lal Sukhadia and Others, [1971] 1 SCC  370 at pages 385 and 386.     The present case, in our view, suffers from the infirmi- ty  of  excluding,  ignoring and  overlooking  the  abundant materials  and  the  evidence, which if  considered  in  the proper  perspective would have led to a conclusion  contrary to the one taken by both the appellate Courts. The relation- ship of the parties inter se has been completely and conven- iently ignored and excluded from consideration. In fact, the High Court has not rendered any finding on question No.  (g) which  is  one of the eleven substantial  questions  of  law formulated  in  paragraph  3 of its judgment.  The  lack  of evidence in support of the recital in regard to the  consid- eration is completely overlooked. Therefore, in view of  the above  exceptional  and special circumstances  appearing  in this  case, this Court will not be justified in refusing  to exercise its discretionary powers merely on the ground  that the conclusion of both the Courts is concurrent.     For the discussions made above, we are of the view  that the  conclusion arrived at by both the appellate  Courts  is only backed by assertions rather than by acceptable  reason- ing based on the proper evaluation of evidence and so we are unable  to  subscribe  to the concurrent  finding  that  the respondents 1 and 2 are bona fide purchasers of the  proper- ties  in  dispute for consideration. On the other  hand,  we hold that the evidence and circumstances of the case coupled with  the evidence on record do establish that the  respond- ents 1 and 2 are not bona fide purchasers for consideration.     In the result, we hold that the respondents 1 and 2  are not  entitled to the benefit of the proviso  to  sub-Section (1)  of Section 13(B) of the Act and answer the first  ques- tion  against  the respondents and in favour of  the  appel- lants.     We  shall now pass on to the next question  whether  the appellants  are entitled to the benefit of Section  13(B)(1) of the Act.     The  Kerala Land Reforms Act of 1963 came into force  on 1.4.1964.  Amended Act 9 of 1967 was a  temporary  enactment which 554 remained  in force till 31.12. 1969. Thereafter, Act  35  of 1969 came into force from, 1.1.1970 containing Section 13(B) which is substantially on the same terms as Section 6 of Act 9 of 1967 with a proviso superadded. To invoke this  benevo- lent  provision, the satisfaction of two primary  conditions are sine qua non. Those conditions are:    (1) Any "holding" to which a tenant is entitled to resto- ration  of possession should have been sold in execution  of any decree for arrears of rent.    (2)  The  tenant  should have been  dispossessed  of  the "holding"  after the first day of April 1964 and before  the commencement  of  the Kerala Land Reforms  (Amendment)  Act, 1969.     If  these two essential conditions are  fulfilled,  then the  sale  in execution of any decree for  arrears  of  rent shall  stand set aside notwithstanding anything to the  con- trary  contained  in any law or in any judgment,  decree  or order of court and the tenant shall be entitled to  restora- tion  of  possession  of such holding, but  subject  to  the provisions of this Section 13B. The only bar for the  resto-

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ration of possession under this Section 13(B)(1) is the sale of  the holding to a bona fide purchaser  for  consideration after the date of such dispossession and before the date  of publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazette. For invoking the benefit of sub-Section  (1) of  section  13(B)  the person entitled  to  restoration  of possession of his holding should within a period of 6 months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 deposit the purchase money together with  interest at the rate of 6 percent per annum in the court and apply to the court for setting aside the sale and for restoration  of possession of his holding. Once these legal formalities  are satisfactorily  complied  with then the Court by  holding  a summary  enquiry  shall set aside the sale and  restore  the applicant  to possession of his holding. The explanation  to that section says that the term ’holding’ includes a part of holding.  The  expression "holding" is  defined  in  Section 2(17) of the Act.     The language of Section 13(B) is plain, clear and  unam- biguous  representing the real intention of the  legislature as reflected not only from the clear words deployed but also from  the very purpose of the vesting of rights on the  dis- placed  tenants.  To construe the provisions  of  a  statute especially  of a benevolent provision like the one in  ques- tion,  we have to take into consideration the dominant  pur- pose  of the statute, the intention of the  legislature  and the policy underlying. Vide 555 P. Rami Reddy & Others v. State of Andhra Pradesh &  Others, [1988]  3 SCC 433; Skandia Insurance Co. Ltd.  v.  Kokilaben Chandravadan  &  Others, [1987] 2 SCC 654  and  M/s  Doypack Systems  Pvt. Ltd. v. Union of India & Others, [1988] 2  SCC 299.     Admittedly,  the third respondent obtained  delivery  of the property in question through court on 29.1.1965 from the possession  of the appellants, who were the tenants  of  the said property which was sold for arrears of rent and  there- after the appellants preferred a petition for restoration of possession  of their holdings in Execution  Application  No. 1711/67  under Section 6 of Act 9 of 1967  after  depositing the  sale amount of Rs.815 and the interest of Rs.255.  Thus the appellants have satisfied the conditions for entitlement of the possession of the property. While this proceeding was pending,  Act 35 of 1969 came into force repealing Act 9  of 1967. Therefore, the appellants filed the Execution Applica- tion  No.  566/70 in O.S. 817/43 praying  that  the  present application  should be treated as a proceeding in  continua- tion  of  the earlier Execution Application and  the  amount deposited  already  in the  previous  Execution  Application should  be  treated as deposit for the  present  application with  an undertaking to deposit the balance, if any.  Though it has been contended by the respondents that the appellants have failed to establish that they were tenants at the  time of  the dispossession, both the Trial Court as well  as  the first  appellate  Court  have concurrently  found  that  the appellants  were  holding the property as tenants  and  they were  dispossessed. Before the High Court, it was  contended that at the time of dispossession of the holding, the appel- lants  were not tenants but only trespassers, that the  dis- possesion  was only pursuant to the decree in O.S. No.  6/66 and that both the lower Courts have not applied their  minds to  these salient and vital facts. The learned Judge of  the High  Court has answered this contention in the  penultimate paragraph of his judgment observing thus: "     This is a serious legal error. It is not necessary for

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me to examine this question and finally adjudicate it, since I  have upheld the decision of the lower appellate court  on other grounds." Suffice to mention here that the High Court has not specifi- cally  dislodged the findings of the lower Courts  that  the appellants  were tenants at the time of  the  dispossession. However, we will deal with this question presently. The main thrust of the argument of Mr. Krishnamurthy Iyer is 556 that  the appellants are not entitled to restoration of  the possession  of  their ’holding’ because  of  an  intervening cause,  that being, that the third respondent, got the  pos- session of the property which is now sought to be  disturbed not  in execution of the decree for arrears of rent, but  by filing  a  suit subsequent to ’the court  auction  purchase. That  intervening cause is explained by the learned  counsel ’stating  that after the property was delivered over to  the third respondent on 29.1.1965, Gopalan Nambiar (since  dead) and  the  first  appellant trespassed into  the  land  which necessitated  the third respondent to institute a suit  O.S. No.  6/66 in the Sub Court of Badagara which was decreed  on 27.7.  1966 as evidenced by the judgment (Ex. B16). He  con- tinues to state that the third respondent, only in pursuance of  the execution of this decree in O.S. 6/66 obtained  pos- session of the property on 23.8. 1966 and therefore  Section 13(B)(1)  in  view of the said intervening cause  cannot  be availed of since the third respondent though ’got possession earlier  by  the auction purchase was  dispossessed  by  the subsequent  event  of  trespass by the  appellants  and  got possession  by  instituting the suit O.S.  6/66.  One  other argument of the learned’ counsel is that as the sales  under Exhibits A2 and A3 are only subsequent to the decree in O.S. No.  6/66,  these transactions cannot be  brought  into  the dragnet of Section 13(B) and the said provision will have no application to the facts of the present case. We are afraid, we cannot permit this inconceivable argument to be advanced. Admittedly,  the third respondent purchased the property  in court auction sale in pursuance of the decree for arrears of rent  in  O.S.  No. 817/43 and obtained  the  possession  by dispossessing  the tenants, namely, the appellants.  It  was only thereafter there was trespass by the appellants. There- fore,  the subsequent event of obtaining possession  of  the property  in pursuance of the decree in O.S. No.  6/66  will not  in any way alter the position that the  appellants  had been dispossessed in pursuance of the decree for arrears  of rent.  The decree in O.S. No. 6/66 for obtaining  possession from the trespassers does not confer any new right or  title over  the  property in favour of the third  respondent.  Mr. Venugopal countered this argument stating that this new plea should  not  be allowed to be raised because this  plea  was never  taken both before the trial and the  first  appellate Courts.  The reply given by Mr. Krishnamurthy Iyer  is  that since  it is a question of law, it is permissible  to  raise this  question even at this stage. As we have said  earlier, even  assuming  that this plea could be raised,  it  has  no substance  in any way affecting the claim of the  appellants for the reasons stated supra.     Mr. Poti after giving a brief note about the legislative history  that  Act 4 of 1961 was declared as void  on  5.12. 1961 in respect of certain 557 provisions  and  that thereafter Act 1 of 1964  was  enacted which came into force on 1.4.1964 repealing earlier Act 4 of 1961  advanced a hesitant argument that the  application  is liable  to  be dismissed as the entire amount has  not  been

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deposited  in  compliance with sub-Section  (2)  of  Section 13(B)  which is a condition precedent to claim the  restora- tion  of  the  possession of the  property.  Admittedly  the appellants filed an application in the year 1967 for  resto- ration of the possession of the property under Section 6  of Act. 9 of 1967 and during the pendency of that  application, Act  35 of 1969 came into force. The applicant who  had  al- ready  deposited the purchase amount together with  interest has made the request to treat that application as the one in continuation  of the later proceeding and undertook  to  pay the  deficiency of the amount, if any. The  lower  appellate Court in paragraph 6 of its judgment found that the  deposit already  made was sufficient and that the  interest  accrued thereafter  would  be directed to be deposited in  case  the appellants were found entitled to restoration of possession. This  finding of the first appellate Court  concurring  with the Trial Court has not been dislodged by the High Court. It may  not be out of place to mention that on account of  cer- tain divergent views expressed by Judges of the Kerala  High Court on this point the question was referred to a  Division Bench of that Court which drawing strength on the ratio laid down by this Court in State of Punjab v. Mohar Singh, [1955] 1 SCR 893 :AIR 1955 SC 84 observing:          "The line of enquiry would be, not whether the  new Act  expressly  keeps alive old rights and  liabilities  but whether it manifests an intention to destroy them." and agreeing with the view expressed by Krishnamurthy  Iyer, J (as he then was and who is now appearing before us for the first  respondent in different capacity) in  Civil  Revision Petition  Nos. 1090 and 109 1 of 1972 wherein  this  precise question came up for consideration held that the application filed under Section 6 of Act 9 of 1967 which was pending  on the  date  of  the commencement of the Act 35  of  1969  was liable  to be continued and dealt with under the  provisions of  the earlier Act, untrammelled by the provisions  of  the later Act. We approve the view taken in the above Parameswa- ran Narnbudiri’s case and hold that the deposit made in  the earlier  application under Section 6 of Act 9 of 1967  which was  pending on the date of commencement of Act 35  of  1969 was  liable to be continued uneffected by the provisions  of the later Act. 558 In Summation:     We, for the aforementioned discussion, disagree with the findings of the High Court, set aside the impugned  judgment and restore the judgment of the Trial Court holding that the sale of the ’holdings’ of the appellants was in execution of the  decree in O.S. No. 817/43 for arrears of rent  and  the appellants who are tenants were dispossessed of the holdings after 1.4.64 and before the commencement of the Kerala  Land Reforms  (Amendment) Act, 1969 and the respondents 1  and  2 are  not bona fide purchasers for consideration. In view  of our above conclusion the appellants are entitled to  recover possession of the properties in dispute, but without  preju- dice  to the rights, if any, of the respondents 7 to 10  who are  the wife and children of Gopalan Nambiar and  who  have got themselves impleaded as parties to the present  proceed- ings.  The  amount under deposit made by the  appellants  is permitted to be withdrawn by the respondents 1 to 3. In the result, the appeal is allowed with costs. S.B.                                            Appeal   al- lowed. 559

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