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PETITIONER: JAGANNATH

       Vs.

RESPONDENT: SHRI YUGAL NARAIN PUROHIT, ADV. & ORS.

DATE OF JUDGMENT:       19/12/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special leave arises from the judgement of the  Division bench  of the Rajasthan High Court, made on November 15,1983 in special appeal no. 18/81. The respondent had purchased  the property  from Bhadaarmal on May 17,1958. Subsequenly, the  vender was  declared insolvent. Therefore, when the  proceeding were  sought to  be taken in respect of those properties,  the appellant  filed  an  application  to declare the  transfer of  the lands  made in  favour of  the respondent under Section 53 of the Provincial Insolvency Act to be  a fraudulent  one. All  the courts  have concurrently found, as a fact, that the sale transaction under Ex-A1 is a bona fide  sale for  valuable consideration executed in good faith and,  therefore, the  sale was not executed to defraud the creditors.      Shri B.D.  Sharma, learned  counsel for  the appellant, contends that  the respondent  is no other than a practicing advocate. He  having obtained  the sale  deed, could not get physical possession  of  the  property.  Had  be  taken  the physical possession,  the things  would have been different. In an  appeal filed by the insolvent himself, the High Court had stayed  delivery of the possession subject to payment of rent. The finding that the possession was taken, thereby, is vitiated by error of law. These facts have not been properly considered by  the courts below in reaching that conclusion. We find no force in the contention.      Admittedly, Ex.  A-1, sale-deed  makes a  clear recital that the  possession of  the property  sold  thereunder  was delivered to the vendee-respondent. The learned single judge of the  High Court  after  elaborate  consideration  of  the evidence recorded thus:      "There is  recital in the sale-deed      (Ex. A1) that the possession of the      apartments which were in possession      of  the   transferor,   have   been      delivered to  the transferor,  have      been delivered  to the  transferee.      Relying on  the testimony  of D.W.1      Yugalnarain,  which   supports  the      recital made  in the sale deed (Ex.

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    A1), I  hold that the possession as      mentioned in  the sale-deed (Ex.A1)      in pursuance of it was delivered to      the transferees. The inference that      can  safely   be  drawn   from  the      evidence and  broad facts  emerging      therefrom  is   that  the  official      receiver  has   not  succeeded   in      establishing want  of good faith on      the part of respondent No.1. As the      Official  Receiver  has  failed  to      discharge the  burden which  lay on      him,  I   agree  with  the  learned      district judge  when the found that      issue No.1  has not been proved. it      cannot be  said that  the sale-deed      (Ex.A1)  was   not   for   valuable      consideration and  in good faith, I      hold that  the Official Receiver is      not entitled to avoid the voluntary      transfer of  sale made by Bhadarmal      in favour of Yugalnarain. The sale,      evidenced by Ex.A1, is not voidable      against the  official Receiver  and      it cannot be annulled."      This is  a finding  based on  appreciation of  evidence recorded by  the learned  single judge.  The Division Bench, therefore, was  right in  its conclusion  that "there  is  a concurrent finding  of fact that the impugned transaction is a real  one and  with consideration".  The trial  court held that the  sale was  made for  valuable consideration  and in good faith.  This finding  was upheld  by the learned single Judge. In  this view,  it being  a finding  of fact based on appreciation of  evidence, we  do not  find any  substantial question   of    law   of   public   importance   warranting interference. Even  the contention  raised  by  the  learned counsel was in a fact considered by the learned single judge and also the trial court. The direction to the vender to pay rent would  be in recognition of the title of the respondent as landlord  and vender  as tenant  in occupation.  Though a different conclusion could be reached, but that would not be a ground for this court to interfere under article 136.      The appeal is accordingly dismissed. No costs.