ACHUTANANDA BAIDYAversusPRAFULLYA KUMAR GAYEN AND ORS.

                        ACHUTANANDA BAIDYA
                                 v.
                   PRAFULLYA KUMAR GAYEN AND ORS.

                                     APRIL 8, 1997

                           [G.N. RAY AND S.C. SEN, J.J.)                                  B

           Co11stitutio11 of India, 1950 : Arlicle 227.

            Jwisdiction of High Cowt-Nature and scope of-Appellate CJwt
     found that there was 110 oral agreement for recon veyance of alienated C
     land-High Coult inteifered with order of Appellate Cowt 011 ground that the
..   Appellate Court made the finding without considerii.g evidence on
      record-Held : High Court's jwisdictio11 included judicial review as well as
      administrative supe1intendence-High Co wt could inte1fere with finding of
     f<•ct anived at by the subordinate cowt if i1 was not based on any evidence
      or upon manifest misreading of evidence-ln .he circumstances of the case, D
      High Cowt was justified in inte1fering with the order of the Appellate Court.

           Evidence Act, 1872 : Section 60.

             Oral Evidence-Regarding existence of oral agreement for reconveyance         E
     of tra11sfen·ed properfJExistence offactum of oral agreement not proved by
     leading direct evidence as required under S.60-Witnesses deposed that i11
     their presence parties had negotiated about the oral agreement for recon-
     veyance-Held : In such circumstance, it will be two hyper tech11ical to
     co11te11d that the witness should 1101 only state that in their presence 11egotia-
     tio11 for oral agreement was held but also they heard the talks between the          F
     parties--Depositio11 that on verbal discussions in the presence of the witness,
     the pa1ties had come to an agreement for reconveyance necessarily implies
     that the witness had heard such discussion and had come to know about such
     oral agreement-Hence, such contention not accepted-West Bengal Restora-
     tion of Alienated Lands Act, 1973, S.4(!).
                                                                                          G
            The respondent had sold his land to the appellant. Subsequently, the
      respondent tiled an application under Section 4(1)(a) of the West Bengal
     .Restoration of Alienated Land Act, 1973 before the Special Officer for
      restoration of the said land on the ground that the respondent had to sell
      the said land under distress. It was also contended that the appellant and H
                                          709
    710                  SUPREME COURT REPORTS                  (1997] 3 S.C.R.

A the respondent had entered into an oral agreement to reconvey the said
    land to the respondent. The Special OITicer allowed the said application.
    The appellate authority allowed the appeal filed by the appellant on the
    ground that the sale was not a distress sale and that there was no oral
    agreement for reconveyance. But the High Court allowed the appeal filed
    by the respondent under Article 227 of the Constitution on the ground that
B   the finding of the appellate authority that there was no oral agreement for
    reconveyance was not correct because such finding was made without
    considering the evidence on record. Being aggrieved the appellant
    preferred the present appeal.

C       On behalf of the appellant it was contended that the non-existence
  of oral agreement was a finding of fact which was concluded by the
  appellate authority and, therefore, it was not open to the High Court to
  interfere with such a finding of fact under Article 227 of the Constitution;
  that the existence of an oral agreement had not been proved by leading
D direct evidence as required under Section 60 of the Evidence Act; and that
  the witnesses had only deposed that in their presence there had been a
  discussion between the appellant and the respondent but such witnesses
  had not deposed that they had heard the parties making an oral agree-
  ment.

E         Dismissing the appeal, this Court

         HELD : 1. The power of superintendence of the High Court under
  Article 227 of the Constitution is not confined to administrative superin-
  tendence only but such power includes within its sweep the power of
F judicial review. The power and duty of the High Court under Article 227
  is essentially to ensure that the Courts and Tribunals, inferior to the High
  Court, have done what they were required to do. The High Court can
  interfere under Article 227 in cases of erroneous assumption or acting
  beyond its jurisdiction, refusal to exercise jurisdiction, error of law ap-
  parent on record as distinguished from a mere mistake of law, arbitrary
G or capricious exercise of authority or discretion, a patent error in proce-
  dure, arriving at a finding which is perverse or based on no material, or
  resulting in manifest injustice. As regards finding of fact of the inferior
  court, the High Court should not quash the judgment of the subordinate
  court merely on the ground that its finding of fact was erroneous but it
H will be open to the High Court in exercise of its powers under Article 227
              ACHUTANANDA BAIDY Av. P. KR. GA YEN                         711

to interfere with the finding of fact if the subordinate court came to the       A
conclusion without any evidence or upon manifest misreading of the
evidence thereby indulging in improper exercise of jurisdiction or if its
conclusions are perverse. If the evidence on record in respect of fact is not
at all taken into consideration and without reference to such evidence, the
finding of fact is arrived at by inferior Court or Tribunal, such finding        B
must be held to be perverse and lacking in factual basis. In such cir-
cumstances, in exercise of its jurisdiction under Article 227, the High
Court uill be competent to quash such perverse finding of fact. The High
Court, in such circumstances, will be competent to consider the validity of
the finding of fact assailed before it with reference to materials on record.
In this case, the High Court has rightly held that the appellate authority       C
came to the finding of non-existence of oral agreement of reconveyance
without considering the evidence on record. [715-B-E; 714-H]

      2. It is not possible to accept the contention of the appellant that the
oral evidence about the agreement of reconveyance entered into between the
parties as invalid and insullicient in view of the provision of Section 60 of    D
the Evidence Act, 1872. Jn this case, the uitnesses have deposed that in their
presence, the parties had negotiated about the oral agreement for recon-
veyance and such agreement was made. In such circumstance, it will be too
hyper technical to contend that the witness should not only state that in
their presence negotiation for oral agreement was held but also they had         E
heard the talks between the parties. The deposition that on verbal discus-
sions in the presence of the witness, the parties had come to an agreement
for reconveyance necessarily implies that the witness had heard such dis-
cussion and has come to know about such oral agreement.
                                                          [715-G-H; 716-A-C]
                                                                                 F
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1009-
1019 of 1987.

     From the Judgment and Order dated 15.7.86 of the Calcutta High
Court in C.R. Nos. 1691-92 of 1985.
                                                                                 G
     Biswajit Bhattacharya and Pradyot Kumar Chakravarty for the
Appellant.

      R.P. Gupta for the Respondents.

      The Judgment of the Court was delivered by                                 H
    712                  SUPREME COURT REPORTS                 [1997) 3 S.C.R.

A          G.N. RAY, J. In these appeals, the judgment dated July 15, 1986
    passed by the Calcutta High Court in Civil Rules Nos. 1691-92 of 1985
    arising out of applkations under Article 227 of the Constitution of India
    against judgment dated April 8, 1985 passed by the Sub-Divisional Officer
    Diamond Harbour in R.A.L. Appeals Nos. 19 and 20 of 1983, is under
    challenge.
B
           There is no dispute that one Kamini Mohan Gayen was the owner
    of the lands in dispute. On June 1, 1968, the said Kamini Mohan Gayen
    had sold 0.60 cent of land to Achutananda Baidya the appellant in these
    appeals, The said Kamini Mohan Gaycn also sold .60 cent of land on July
C   1, 1968 to one Sunil Kumar Monda! by a registered sale deed. The
    appellant Achutananda Baidya subsequently purchased the said 0.60 cent
    of land from Sunil Kumar Monda!. The successor in interest of Kamini
    Mohan Gayen, namely, the respondents in these appeals made applications
    under Section 4(1) of the West Bengal Restoration of Alienated Land Act,
    1973 (hereinafter referred to as the Act) before the Special Officer con-
D   stituted under the Act for restoration of the said 66 decimals of land and
    60 decimals of land which had been transferred by Kamini Mohan Gayen
    on June 1, 1968 and foly 1, 1968. It may be stated here that under Section
    4(1)(b) of the Act, if the transfer in question had been made after the
    expiry of the year 1967 with an agreement, written or oral for reconveyance
E   of the land to the transferor, the transferor may within ten years from the
    date of commencement of the Act may make an application in prescribed
    manner to the Special Officer having jurisdiction in the area in which the
    land transferred wa& situated for restoration of such land to him. Under
    Section 4(1)(a) of the Act, the transferor may also make an application
    before the Special Officer for restoration of the alienated land if the
F
    transfer of the said land was made after the expiry of the year 1967 if the
    transferor was in need of money for maintenance of himself and family or
    for meeting the cost of cultivation.

          In the application for restoration of the said lands it was contended
G by the respondents that th~.ir predecessor-in-interest Kamini Mohan Gayen
    was in need of money for the maintenance of his family and in order to
    procure money to give his daughter in marriage, he had to sell the said
    lands by the aforesaid registered deeds of sale under distress. It was also
    contended that the transferor and the transferee entered into oral agree-
H   ment to reconvey the said land to the transferor.
      ACHUTANANDABAIDYAv. P. KR. GAYEN[G.N. RAY,J.]                       713

      On such application, Cases Nos. 44 and 45 of 1974-75 were initiated        A
before the Special Officer. After a contestant hearing, the Special Officer
allowed the said applications for restoration of alienated land and inter alia
on the finding that Kamini Mohan Gayen sold the land in distress and there
was agreement for reconveyanee of the said lands to the transferor.

       The appellant preferred the appeals, namely, R.A.L. Nos. 19 and 20
                                                                                 B
of 1983-84 before the sub-Divisional Officer Diamond Harbour, being the
appellate authority under the Act. The appellate authority allowed both
the appeals inter alia on the finding that the transfer of the lands in
question was for raising money for the business and not for the marriage
of the daughter. Hence, the sale was not a distress sale under Section C
4(1)( a) of the Act. The appellate authority also held that there was no oral
agreement for reconveyance. Accordingly, the orders passed by the Special
Officer for restoration of the alienated Act were set aside by the appellate
authority by allowing the appeals.
                                                                                 D
       The respondents preferred revisional applications before the High
Court under Article 227 of he Constitution of India against the decision of
the appellate authority. By the impugned judgment, the High Court has
upheld the finding of the appellate authority that the sale was not made
for the marriage of the daughter of the vendor and the applicant was not
entitled to claim restoration of the lands under Section 4(1)(a) of the Act. E
But the High Court has held that the finding of the appellate authority that
there was no agreement for reconveyance is not correct because such
finding was made without considering the evidences on record. The High
Court has held that the existence of an oral agreement of reconveyance
between the transferor and transferee has been established by the eviden- F
ces adduced in the case. Accordingly, the orders for restoration of
alienated lands passed by the Special Officer were not required to be
interfered with and should be upheld.

      Mr. Biswajit Bhattacharya, the learned counsel appearing for the
appellant, has strenuously contended that question of existence of oral G
agreement for reconveyance is a question of fact. That finding of fact on
such question was concluded by the finding made by the appellate
authority. It was, therefore, not open to the High Court to interfere with
such finding of fact in the exercise of revisional jurisdiction under Article
227 of the Constitution. Mr. Bhattacharya has also submitted that in the H
    714                  SUPREME COURT REPORTS                  [1997) 3 S.C.R.

A impugned deeds there was no reference that the lands transferred were to
    be reconveyed. Mr. Bhattacharya has submitted that the scope and juris-
    diction of the High Court under Article 227 of the Constitution have been
    taken into consideration by this Court in a number of decisions and it has
    been indicated that the jurisdiction under Article 227 of the Constitution
    is not a jurisdiction of an appellate authority which can re-appreciate
B   evidence adduced in a cast: and come to an independent finding of fact on
    such re-appreciation of the evidence. Therefore, there was no occasion for
    the High Court to reverse the finding of fact made by the appellate
    authority which was the final authority for making the finding of fact. Even
    then, the High Court has interfered with the finding of fact in exercise of
C   revisional jurisdiction under Article 227 of the Constitution. Mr. Bhat-
    tacharya has submitted that on this ground alone, the impugned judgment
    is liable to be set aside·.

        Mr. Bhattacharya has also submitted that, even on merits, the finding
D of the appellate authority is not to be reversed. The oral evidence adduced
  by the applicants in support of the case of oral agreement for reconveyance
  cannot be accepted because the existence of the factum of an oral agree-
  ment had not been provided by leading direct evidence as required under
  Section 60 of the Indian Evidence Act. Mr. Bhattacharya has submitted
  that the oral evidence must be direct. If the witness refers to a fact which
E had been heard by the witness, the evidence must clearly mention that the
  witness himself had heard utterances constituting the fact. Mr. Bhat·
  tacharya had submitted that in the instant case, the witnesses have only
  deposed to the effect that in thejr presence there had been discussion
  between the transferor and the transferee but such witnesses have not
  deposed that they had heard the parties making oral agreement for recon-
F
  veyance. Hence, even on merit, no reliance can be placed on the deposi-
  tions of the witnesses examined by applicants to prove the existence of oral
  agreement. Hence, in any event, the High Court was wrong in reversing
  the finding of the appellate authority that there was no agreement for
  reconveyance. Mr. Bhattacharya has, therefore, submitted that impugned
G judgment should be set aside by allowing these appeals and cancelling the
  orders for restoration of alienated lands.

           We are, however, unable to accept such contention of Mr. Bhat-
     tacharya. In this case, the High Court has rightly held that the appellate
H    authority came to the finding of non-existence of oral agreement of recon-
      ACHUTANANDABAIDYAv. P. KR. GAYEN [G.N.RAY,J.]                     715

veyance without considering the evidence on record. If the appellate A
authority does not consider the materials on record having a bearing on a
finding of fact and makes the finding of fact, such finding of fact arrived
without consideration of relevant materials on record cannot be sustained
in law. The High Court, in such circumstances, will be competent to
consider the validity of the finding of fact assailed before it with reference B
to materials on record.

       The power of superintendence of the High Court under Article 227
of the Constitution is not confined to administrative superintendence only
but such power includes within its sweep the power of judicial review. The
power and duty of the High Court under Article 227 is essentially to ensure    C
that the Courts and Tribunals, inferior to High Court, have done what they
were required to do. Law is well settled by various decisions of this Court
that the High Court can interfere under Article 227 of the Constitution in
cases of erroneous assumption or acting beyond its jurisdiction, refusal to
exercise jurisdiction, error of law apparent on record as distinguished from
a mere mistake of law, arbitrary or capricious exercise of authority or        D
discretion, a patent error in procedure, arriving at a finding which is
perverse or based on no material, or resulting in manifest injustice. As
regards finding of fact of the inferior court, the High Court should not
quash the judgment of the subordinate court merely on the ground that its
finding of fact was erroneous but it will be open to the High Court in         E
exercise of the powers under Article 227 to interfere with the finding of
fact if the subordinate court came to the conclusion without any evidence
or upon manifest misreading of the evidence thereby indulging in improper
exercise of jurisdiction or if its conclusions are perverse.

                                                                               F
      If the evidence on record in respect of a question of fact is not at all
taken into consideration and without reference to such evidence, the
finding of fact is arrived at by inferior court or Tribunal, such finding must
be held to be perverse and lacking in factual basis. In such circumstances,
in exercise of the jurisdiction under Article 227, the High Court will be
competent to quash such perverse finding of fact.                              G

      So far as the contention of Mr. Bhattacharya that the oral evidence
about the agreement of reconveyance entered between the parties as
invalid and insufficient in view of the provision of Section 60 of the
Evidence Act is concerned, we may indicate that such submission is H
    716                 SUPREME COURT REPORTS                [1997] 3 S.C.R.

A misconceived and should not be accepted. In this case, the witnesses have
  deposed that in their presence, the parties had negotiated about the oral
  agreement for rcconveyancc and such agreement was made. In our view,
  in such c\rcumstancc, it will be too hyper technical to contend that the
  witness should not only stale that in their presence negotiation for oral
  agreement was held but they had heard the talks between the parties. The
B deposition that on verbal discussions in the presence of the witness, the
  parties had come to an agreement for rcconveyance necessarily implies that
  the witness had heard such discussion and has come to know about such
  oral agreement. In the aforesaid circumstance, we do not find any reason
  to interfere with the impugned judgment and the appeals are dismissed but
C in the facts of the case there will be no order as to costs.
    V.S.S.                                               Appeals dismissed.