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PETITIONER: MARI CHETTIAR

       Vs.

RESPONDENT: S.P. ARUMUGA NAICKER

DATE OF JUDGMENT22/09/1993

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SINGH N.P. (J)

CITATION:  1995 SCC  Supl.  (1) 152

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.Naicker,  respondent in appeal herein, instituted  a  suit for declaration and possession in respect of the property in dispute against Mari, the appellant defendant, before us  in this  appeal.   The suit was dismissed by the  trial  court. The  lower appellate court upheld the findings of the  trial court and dismissed the appeal.  The High Court, however, in second appeal reversed the findings of the two courts  below and decreed the suit. 2.The  facts  in  a  nutshell are  that  Mari  agreed  to purchase  the property in dispute from Kandappa  Gounder  by way  of the agreement dated October 17, 1966.  According  to Mari  he fell short of money and as such approached  Naicker and borrowed a sum of Rs 4000 from him and as a security for the loan he got the sale deed executed in favour of  Naicker on  April  9, 1967 in respect of the  property  in  dispute. Thereafter, Naicker entered into an agreement dated April 9, 1967  with  Mari to sell the same property to  him.   It  is further  not disputed that Mari got the property in  dispute on lease from Naicker by way of a lease deed dated April 12, 1967.  The three last mentioned documents were registered. 3.The case of the respondent-plaintiff was that the  sale deed  dated  April 9, 1967 being registered  was  valid  and genuine and as such he was entitled to have the  declaration and possession of the suit property.  On the other hand, the appellant-defendant claimed that all the three  transactions were sham, he had borrowed a sum of Rs 4000 from Naicker and the documents were entered only to secure the payment of the said  loan.  The trial court, on appreciation  of  evidence, came  to  the  conclusion  that the sale  deed  was  a  sham transaction  and was only entered into to secure  the  loan. As  mentioned  above the lower appellate  court  upheld  the findings of the trial Court. 4.We  are  of  the  view that  the  High  Court  was  not justified  in  reversing the findings of  fact  concurrently reached  by the trial court and the lower  appellate  court.

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There  was no question of law, whatsoever, before  the  High Court  in the second appeal.  The High Court went  into  the evidence, re-appreciated the same and reversed the  findings of   the  courts  below.   The  High  Court   exceeded   the jurisdiction vested in it under Section 100 Civil  Procedure Code.   We,  therefore,  allow the  appeal,  set  aside  the judgment  of  the High Court and restore that of  the  trial court  and  dismiss the suit  of  the  respondent-plaintiff. While  allowing  the appeal we are of the view that  in  the facts  and  circumstances  of this  case,  the  interest  of justice  would be squarely met if the appellant is  directed to  pay  a  sum of Rs 25,000 to the  respondent  by  way  of compensation.   We order accordingly.  The  appellant  shall pay  the  SLIM of Rs 25,000 to the respondent  within  three months  from  today.  Failing to pay the amount  within  the said  period it shall earn interest at the rate of  15%  per annum thereafter.  The appeal is allowed and disposed of  in the above terms.  No costs.