===================================================== Bishundeo Dubey .... … v. Kapildeo Dubey & Ors
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.95 of 1993 Against the Judgment and Decree dated 11.12.1992 passed by the learned District Judge, Gopalganj in Title Appeal No.7 of 1989 dismissing the appeal and confirming the Judgment and Decree dated 21.12.1988 passed by Addl. Munsif, IIIrd Gopalganj in Title Suit No.50 of 1982. ===================================================== Bishundeo Dubey .... …..Plaintiff-appellant-Appellant/s Versus Kapildeo Dubey & Ors. .........Defendants-respondents-Respondent/s ===================================================== Appearance : For the Appellant/s : Mr. S. S. Dwivedi, Sr. Advocate Ms. Sangeega Sharma, Advocate Mr. Ranjan Dubey, Advocate Mr. Rakesh Chandra, Advocate For the Respondent/s : Mr. Prabhunath Rai, Sr. Advocate ===================================================== Mr. Mritunjay Prasad Singh, Advocate with him Dated : 17thday of December, 2013 P R E S E N T CORAM : THE HON’BLE MR. JUSTICE MUNGESHWAR SAHOO CAV J U D G M E N T 1.
Legal Reasoning
The Plaintiff-appellant-appellant had filed this Second Appeal against the Judgment and Decree dated 11.12.1992 passed by the learned District Judge, Gopalganj in Title Appeal No.7 of 1989 whereby the learned lower appellate Court dismissed the appeal and confirmed the Judgment and 2 Patna High Court SA No.95 of 1993 dt.17-12-2013 2 / 7 Decree of the lower appellate Court dated 21.12.1988 passed by the learned Addl. Munsif, IIIrd Gopalganj in title suit No.50 of 1982. 2. The plaintiff appellant had filed this aforesaid suit praying for declaration that the defendant No.2 is Benamidar of the plaintiff and defendant No.1. The defendant No.2 has no right to execute the sale deed of the disputed plot dated 17.04.1974 in favour of defendant No.1 as such the sale deed is null and void. The plaintiff claimed the aforesaid relief alleging that the property originally belonged to Hathuwa Raj. He desired to sale the suit land, therefore, the plaintiff and defendant No.1 agreed to purchase the suit property in the name of their maternal uncle, defendant No.2, and by registered sale deed dated 18.04.1960, they purchased the land for Rs.191/-. They had purchased in the name of defendant No.2 with a view to save the land from the other Bhawalidar. The plaintiff was the karta, as such the property was purchased for the benefit of the family. There was partition between the plaintiff and defendant No.1 in the year 1970 and the suit property was divided half and half. However, subsequently the defendant No.2, the maternal uncle sold the suit property in favour of the defendant No.1 by registered sale deed dated 18.4.1974 and on the basis of the said sale deed, the defendant No.1 is trying to dispossess the plaintiff. 3. The defendant No.2 did not file any written statement. The defendant No.1 filed contesting written statement. The main defence of the defendant No.1 is that in fact defendant No.2 was the real owner of the property and was not a benamidar. The consideration amount was paid by him. After purchase, the defendant No.2 came in possession of the property and in 1974, he sold the property to the defendant No.1 and handed over the registered sale deed of the year 1960 also to the defendant No.1. The 3 Patna High Court SA No.95 of 1993 dt.17-12-2013 3 / 7 defendant No.1 gave the registered sale deed to his wife and went to their place of service. The plaintiff obtained the sale deed from the wife of defendant No.1 on the pretext that he will get the name of defendant No.1 mutated with respect to the suit property. In fact the defendant No.2 is not the benamidar and after purchase, the defendant No.1 became the absolute owner of the entire suit property. 4. The trial Court dismissed the plaintiff’s suit recording a finding that the plaintiffs failed to prove that the defendant No.2 is the benamidar and that the suit is barred by law of limitation. Accordingly, the plaintiff’s suit was dismissed. On appeal, the lower appellate Court held that the purchase of the suit land from Hathuwa Raj through the sale deed ext.3 was a banami transaction and the plaintiff and defendant No.1 are the real purchasers and defendant No.2 was only benamidar in the sale deed ext.3 vide paragraph 15. Since the suit land was acquired by plaintiff and defendant No.1 from Hathuwa Raj, the defendant No.2 had got no right to transfer the same to the defendant No.1 by executing the sale deed, ext. B, therefore, the sale deed ext. ‘B’ is illegal and void document vide paragraph 17. The suit is not barred by law of limitation. The lower appellate Court further held that the provision under Section 4 of the Act applies to all proceedings pending before the Courts of law on the date of commencement of the Act even if they are at the second appellate stage as has bee held by the Hon’ble Supreme Court in the case of Mithilesh Kumari Vs. Prem Bihari Khadeo A.I.R. 1989 SC 1247, therefore, the plaintiff is not entitled to any relief, accordingly the appeal was dismissed. 5. At the time of admission on 12.08.1996, following two substantial questions of law were formulated :- 4 Patna High Court SA No.95 of 1993 dt.17-12-2013 4 / 7 (i) (ii) Whether the failure to frame a point as to whether the plaintiff has title to the suit land as his kast land and to determine and decide it, which has affected the decision on merit, is contrary to law? Whether the dismissal of the appeal barred under Section 4(1) of the Benami Transaction (Prohibition) Act is contrary to law since the relief of title sought is not enforced on the sale deed Ext.3 taken Benami in the name of defendant No.2 rather enforced on the pleadings of the parties that the suit land was Bhawli land of the ancestors of the plaintiff and defendant No.1 and since then they continued in its possession and has perfected their title by operation of law and adverse possession and as such is the kast land of the plaintiff? 6.
Legal Reasoning
The learned senior counsel, Mr. S. S. Dwivedi submitted that he is not pressing at all the substantial question of law No.1 because it is not involved for decision in the present appeal. According to the learned counsel, since it is not involved the same requires no decision. In view of the submission of the learned counsel for the appellant, it is held that substantial question of law No.1 is not involved in this Second Appeal for decision. 7. So far substantial question of law No.2 is concerned, the learned counsel submitted that the plaintiff’s suit has only been dismissed by the lower appellate Court on the ground of Section 4 (1) of the Benami Transaction (Prohibition) Act, 1988. The learned counsel submitted that all the findings are in favour of the appellant except this finding of the lower appellate Court regarding benami transaction. The learned counsel submitted that the Mithilesh Kumari Judgment (Supra) on the basis of which the lower appellate Court has dismissed the plaintiff’s suit holding that the plaintiffs claim is barred under Section 4 of the Benami Transaction Act has already been overruled by the Hon’ble Supreme Court in the case of R. Rajagopal Reddy. Vs. Padmini Chandrasekharan A.I.R. 1996 SC 238. On these grounds, the learned counsel submitted hat the plaintiff’s suit is liable to be decreed after setting aside the Judgment of the lower appellate Court. 5 Patna High Court SA No.95 of 1993 dt.17-12-2013 5 / 7 8. On the other hand, the learned senior counsel Mr. Prabhunath Rai, appearing on behalf of the respondent submitted that the finding recorded by the lower appellate Court regarding Benami transaction itself is not sustainable because it is the specific case of the defendant that defendant No.2 is the real owner of the property. At the time of transfer of the property by defendant No.2 in favour of defendant No.1, the defendant No.2 have already handed over the registered sale deed in his name to the defendant No.1 The defendant No.1 gave the same to his wife and went to the place of his service. The plaintiff being the elder brother of defendant No.1 obtained the sale deed from the wife of defendant No.1, therefore, he produced the sale deed in the Court. This explanation was given by the defendant No.1 but the lower appellate Court did not accept this explanation. According to the learned counsel, the lower appellate Court has wrongly not accepted the explanation of the defendant No.1 and wrongly held that the sale deed has been produced by the plaintiff. A petition was also filed by the defendant No.1 and the company commander had forwarded the application to the officer in-charge ext. ‘D/1’. So far the substantial question No.(ii) formulated is concerned, the lenred counsel submitted that since the transaction in favour of defendant No.2 was real transaction and defendant No.2 was the real owner, therefore, there is no question of benami transaction. 9. From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court has not only considered each and every oral evidence of the parties but also has considered all the submissions made by the parties and the documentary evidences which are relevant for the purpose of deciding the question as to whether the defendant No.2 is benamidar or is real owner. The lower appellate Court from paragraph 8 to 6 Patna High Court SA No.95 of 1993 dt.17-12-2013 6 / 7 paragraph 14 has discussed all the matters which are being raised before this Court by the learned counsel for the respondent. The lower appellate Court has also considered the possession over the suit property, passing of consideration, custody of title deed, the motive for purchasing the property in the name of defendant No.2 and also the so called complaint petition ext. D/1 and D which was recommended by the Company commander and thereafter recorded the finding that in fact defendant No.2 was benamidar of plaintiff and defendant No.1 and the sale deed ext.3 is a benami transaction. In view of the above facts, the finding recorded by the lower appellate Court is based on relevant and admissible evidences and the circumstances which are necessary for consideration regarding benami transaction. In my opinion, therefore, this finding is pure finding of fact. As such this finding cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 10. From perusal of the Judgment of the lower appellate Court, it further appears that after recording the main relief claimed by the plaintiff in favour of the plaintiff, the lower appellate Court on the basis of the Judgment of the Hon’ble Supreme Court in the case of Mithilesh Kumari (Supra) held that the plaintiff is not entitled to any relief because of Section 4 of the Benami Transaction (Prohibition) Act, 1988. This decision of the Hon’ble Supreme Court has been specifically overruled by the Hon’ble Supreme Court in the case of R. Rajagopal Reddy’s case 1995 (2) S.C.C. 630 = A.I.R. 1996 SC 238. The Hon’ble Supreme Court in this R. Rajagopal Reddy’s case, held that Section 4 (1) of the Benami Transaction (Prohibition) Act, 1988 is not retrospective in operation and does not apply to pending suits already filed and entertained prior to coming into force of Section 4. 7 Patna High Court SA No.95 of 1993 dt.17-12-2013 7 / 7 Admittedly, the present suit was filed in 1982, therefore, Section 4 of the Act of 1988 will not come into play. 11. Again following the decision of R. Rajagopal Reddy’s case, the Hon’ble Supreme Court in the case of Bijay Kumar & Anr Vs. Dharmpal and Ors. 2009 (3) SCC 319 held that Section 4 is not retrospective and suit filed prior to Act coming into force the provision of the Act will not apply. 12. As stated above, the lower appellate Court has nonsuited only on the question of Section 4 of Benami Transaction Prohibition Act applying the same retrospectively relying the decision which has been subsequently overruled by the Hon’ble Supreme Court. 13. In view of my above discussion, the substantial question of law formulated is answered in favour of the plaintiff appellant. The finding of the lower appellate Court whereby it has been held that the plaintiff is not entitled for any relief in view of Section 4 of the Banami Transaction Act, 1988 is hereby set aside. This Second Appeal is thus allowed. The plaintiff’s suit is decreed. In the facts and circumstances of the case, no order as to cost. (Mungeshwar Sahoo, J.) Sanjeev/-