Sanjay Kumar Singh v. Kameshwar Singh

1. Heard learned counsel for the appellant.

2. The present appeal has been preferred under Section 100 of the Code of Civil Procedure and has been placed for hearing under Order 41 Rule 11 of the Code of Civil Procedure. The appellant is aggrieved by the judgment and decree dated 8.10.2010 passed by the learned Additional District Judge-IIIrd Ara, at Bhojpur in Title Appeal No. 34 of 2009 confirming the judgment and decree dated 23.1.2009 passed by learned Munsif-Second, Ara in Title Suit No. 111 of 2003, whereby the learned trial Court has dismissed the suit filed by the appellant. 2 Patna High Court SA No.719 of 2010 (7) dt.07-02-2013

3. Briefly stated, the facts of the case are that the appellant filed the Title (Partition) Suit No. 111 of 2003 against four defendants. Defendant no.1 is the father of plaintiff, whereas defendant nos. 2, 3 and 4 are his brothers. The suit property is a house built in New Plot No. 333 and 332 area 1 katha 12 dhoor 6 dhoorki of old plot No. 1825 under Khata No.250 situated in Pakari P.S.- Nawada Ara, District-Bhojpur. The plaintiff claimed 1/5 share in the disputed property.

4. As per plaintiff, the suit property was purchased by Respondent no.1/Defendant no.1 father of other defendants and the plaintiff in the name of defendant no.2 from fund of joint family property in the year 1990. Further case of the plaintiff was that the plaintiff and other defendants were residing in the suit property jointly and were in joint possession and that the plaintiff was that the parties separated on

21.8.2003 but no partition by metes and bounds had taken place. A request was made to defendant no.2 to divide the property which he finally refused, giving rise to cause of action for filing the suit.

5. As none of the defendant including defendant no.2 filed any written statement in spite of summons/notice, the case was fixed for ex-parte proceeding against defendant no.2 also. Learned Munsif dismissed the suit in view of the provision under Section 4 of the Benami Transactions (Prohibition) Act, 1988 which reads as follows:- “4. Prohibition of the right to recover property held 3 Patna High Court SA No.719 of 2010 (7) dt.07-02-2013 benami.-(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect to any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.”

6. The plaintiff thereafter filed appeal under Section 96 of the Code of Civil Procedure registered in the file of the Court of Additional District Judge, Ara vide Title Appeal No. 34 of 2009. This is to be noted that in course of trial all the defendants filed their evidence on affidavit except defendant no.2. A certified copy of the sale deed dated 16.11.1990 was also filed. Learned appellate Court on the basis of the sale deed reached to the finding that there was no indication in the sale deed as regards payment of consideration money by defendant no.1 Kameshwar Singh for the benefit of co- parcenary property. On the basis of said sale deed, the learned first appellate Court reached to the conclusion that the disputed plot was purchased by Ajay Kumar Singh the defendant no.2 (Respondent No.2) and payment of sale price 4 Patna High Court SA No.719 of 2010 (7) dt.07-02-2013 was made by him and the sale deed was executed in the sole name of Ajay Kumar Singh.

7. Learned counsel appearing on behalf of the appellant does not dispute that there is no mention in the said sale deed that the property was being purchased for the benefit of co-parcenary property. He submits that though it was indicated in the sale deed that it was being purchased by defendant no.2 and payment of price was made by him but in fact the payment was made by defendant no.1, father of defendant no.2.

8. Though, I am of the view issue of maintainability of the suit was not rightly decided by the Courts below, yet in view of the fact that the first appellate Court after scrutinizing the evidence an material on record came to the specific finding with reference to the sale deed itself that the property was purchased by defendant no.2 and payment of price was also made by him and which finding cannot be said to be perverse contrary to the evidence on record, I am not inclined to admit this appeal.

8. The appeal is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-