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IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.52 of 1991 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Shirish Chandra Mahanta (dead) …. Appellants & Others Saiba Mahanta (dead) & Others …. Respondents -versus- For Appellants - Mr.S.P.Mohanty,Advocate For Respondents - Mr.R.C.Rath, Advocate CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :29.01.2025:: Date of Judgment :25.02.2025 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The appellant in this Second Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.34 of 1985 and appellant before the 1st Appellate Court in the first appeal vide T.A. No.30 of 1987. The respondents in this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No.34 of 1985 and SA No.52 of 1991 Page 1 of 17 // 2 // respondents before the 1st Appellate Court in the 1st appeal vide T.A. No.30 of 1987. 3. The suit of the plaintiff (appellant in this 2nd appeal) against the defendants (respondents in this 2nd appeal) vide T.S. No.34 of 1985 was a suit for declaration of title and possession. 4. The case of the plaintiff as per his pleadings was that, the suit properties originally belonged to one Dhena Barik of the suit village Pattabari. The said Dhena Barik sold the suit properties to
Legal Reasoning
the defendant No.3 through registered sale deed No.150 of 1960 (Ext.3). After purchasing the suit properties from Dhena Barik, the defendant No.3 became the owner of the same and remained in possession over the same. Thereafter, the defendant No.3 sold the said suit properties to the plaintiff through registered sale deed No.689 of 1979 (Ext.4) for a consideration of Rs.3000/- and delivered possession thereof. Accordingly, he (plaintiff) is the owner of the suit properties. When, the defendant Nos.1 and 2 being the husband and wife respectively created disturbances in the possession of the plaintiff over the suit properties, then, the plaintiff approached the SA No.52 of 1991 Page 2 of 17 // 3 // Civil Court by filing the suit vide T.S. No.34 of 1985 against the defendant Nos.1 and 2 and also arraying his vendor i.e. defendant No.3 as proforma defendant praying for declaration of his title and possession over the suit properties. 5. Having been noticed from the Trial Court in the suit vide T.S. No.34 of 1985 filed by the plaintiff, the defendant No.3 (vendor of the plaintiff) filed written statement supporting the case of the plaintiff in full. 6. Whereas, the defendant Nos.1 and 2 challenged the suit of the plaintiff by filing their joint written statement denying the averments made by the plaintiff in his plaint taking their pleas specifically that, the defendant No.3 is the maternal uncle of the defendant No.2 and as the defendant No.1 is the husband of the defendant No.2, for which, the defendant No.3 is also related to the defendant Nos.1 and 2. When, in the year 1960, there was disturbance in the family of the defendant No.1 with his brothers, at that time, the wife of the defendant No.1 i.e. defendant No.2 purchased the suit properties from Dhena Barik through sale deed No.150 of 1960 Benami in the name of her maternal uncle i.e. defendant No.3 paying the full consideration amount of the same SA No.52 of 1991 Page 3 of 17 // 4 // by her (defendant No.2) as the owner of the said purchased suit properties for her own benefit and interest of the same without giving any interest of the same to the defendant No.3 and since the date of purchase through sale deed No.150 of 1960 Benami in the name of the defendant No.3 from Dhena Barik, the defendant No.2 possessed the suit properties as the owner of the same and kept all the documents i.e. the sale deed along with other revenue records of the suit properties with her (defendant No.2). When, during Hal settlement operation of the year 1977-1978, there was disturbances between the defendant No.3 and defendant Nos.1 and 2, then, the defendant No.3 executed a nominal sale deed vide sale deed No.689 of 1979 (Ext.4) in respect of the suit properties in favour of the plaintiff without giving delivery of possession of the same to him. Though, the possession of the suit properties is all along with the defendant No.2 and as the defendant No.3 is not the owner of the suit properties, but, the defendant No.2 is the real owner of the same and the defendant No.3 was a Benamidar thereof, for which, the sale deed No.689 of 1979 (Ext.4) in respect of the suit properties in favour of the plaintiff can never create any interest in the suit properties in favour of the plaintiff, because, the plaintiff is not the owner of the same. SA No.52 of 1991 Page 4 of 17 // 5 // Therefore, the plaintiff is not entitled for the decree of declaration of his title and possession over the suit properties. For which, the suit of the plaintiff is to be dismissed against them (defendants). 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether seven numbers of issues were framed by the Trial Court in the suit vide T.S. No.34 of 1985 and the said issues are:- (i) (ii) (iii) (iv) (v) (vi) I s s u e s Is the suit maintainable? Has the civil Court jurisdiction to entertain the relief claimed by the plaintiff? Is the suit barred by law of limitation? Has defendant No.3 acquired title to the suit land under the registered sale deed of the year 1960? Has the plaintiff or his predecessor- in-interest (D-3) possessed the case land at any time? Have defendant Nos.1 and 2 acquired title under the Benami sale of the year 1960 in alternative by way of adverse possession? (Vii) To what relief the plaintiff is entitled? 8. In order to substantiate the aforesaid reliefs, sought for by the plaintiff in the suit against the defendant Nos.1 and 2, he (plaintiff) examined altogether five numbers of witnesses from his side SA No.52 of 1991 Page 5 of 17 // 6 // including him as P.W.1 and relied upon the documents vide Exts.1 to 5. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant Nos.1 and 2 examined one witness on their behalf i.e. defendant No.2 as D.W.1 and relied upon the documents vide Exts.A to D. 9. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered all the issues against the plaintiff and in favour of the defendant No.2 and basing upon the findings and observations made by the Trial Court in the issues against the plaintiff and in favour of the defendant No.2, the Trial Court dismissed the suit of the plaintiff on contest against the defendant Nos.1 and 2 and ex parte against the defendant No.3 as per its judgment and decree dated 11.09.1987 and 24.09.1987 respectively assigning the reasons that, the transaction through the sale deed No.150 of 1960 (Ext.3) was a deed of Benami transaction between Dhena Barik and defendant No.2, but, the name of defendant No.3 was shown in that sale deed vide Ext.3 as a Benamidar. The real purchaser and owner of the suit properties through that sale deed bearing No.150 SA No.52 of 1991 Page 6 of 17 // 7 // of 1960 from Dhena Barik is defendant No.2, because, as per the pleadings and evidence coupled with oral and documentary evidence adduced by the parties are going to establish that, the consideration money was paid by the defendant No.2 to Dhena Barik and possession of the purchased suit properties was delivered by Dhena Barik to the defendant No.2, but, not to the defendant No.3, as the defendant No.3 was a Benamidar. For which, the defendant No.2 is the owner and in possession over the suit properties and as such there was/is no title of the suit properties with the defendant No.3. When, defendant No.3 had/has no interest over the suit properties, then, the transfer of the suit properties by him (defendant No.3) in favour of the plaintiff through registered sale deed No.689 of 1979 (Ext.4) has not created any interest in respect of the suit properties in favour of the plaintiff. So, the plaintiff is not entitled for the decree of declaration of title and possession over the suit properties. 10. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.34 of 1985 passed by the Trial Court, he (plaintiff) challenged the same by SA No.52 of 1991 Page 7 of 17 // 8 // preferring the 1st Appeal vide T.A. No.30 of 1987 being the appellant against the defendant Nos.1 and 2 arraying them as respondent Nos.1 and 2 and also arraying his vendor (defendant No.3) as respondent No.3. 11. After hearing from both the sides, the 1st Appellate Court dismissed that first Appeal of the plaintiff vide T.A. No.30 of 1987 as per its judgment and decree dated 22.12.1990 and 11.01.1991 respectively concurring/accepting to the findings and observations made by the Trial Court after appreciating the oral and documentary evidence of the parties. 12. On being aggrieved with the aforesaid judgment and decree dated 22.12.1990 and 11.01.1991 respectively passed by the 1st Appellate Court in T.A. No.30 of 1987 against the plaintiff, he (plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendant Nos.1 and 2 arraying them as respondent Nos.1 and 2 and also arraying his vendor i.e. defendant No.3 as respondent No.3. 13. When, during the pendency of the 2nd appeal, the appellant (plaintiff) expired, then in his place, his LRs. have been substituted as appellant Nos.1(a) to 1(c). SA No.52 of 1991 Page 8 of 17 // 9 // 14. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e.:- (i) Whether, the concurrent findings and observations of the Trial court and 1st Appellate Court that, the sale deed No.150 of 1960 (Ext.4) was a Benami Transaction and the same is hit under Sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988. In view of the decisions of the Hon’ble Courts reported in 1990 (II) OLR 272 relying upon the decision of AIR 1989 S.C. 1247? 15. I have already heard from the learned counsel for the appellant (plaintiff) and learned counsel for the respondent Nos.1 and 2 (defendant Nos.1 and 2). 16. It appears from the record that, the suit of the plaintiff vide T.S. No.34 of 1985 was filed on 06.11.1985 i.e. prior to the coming into force of the Benami Transactions (Prohibition) Act, 1988. 17. The defendant Nos.1 and 2 filed their joint written statement on dated 28.04.1986 claiming that, the defendant No.3 as the Benamidar of the suit properties, which is also prior to coming into force of the Benami Transactions (Prohibition) Act, 1988. The Benami Transactions (Prohibition) Act, 1988 is prospective in nature and the same has no application to the transactions, those SA No.52 of 1991 Page 9 of 17 // 10 // had taken place prior to the coming into the force of the said Act. As per law, after 19.05.1988, there is prohibition for taking the plea of Benami. Therefore, the present suit vide T.S. No.34 of 1985, which was filed by the plaintiff/appellant on 06.11.1985 is not hit by the prohibition contained in Section 4 of the Benami Transactions (Prohibition) Act, 1988. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) In a case between Vijay Kumar & Another Vrs. Dharam Pal & Others reported in (2009) 3 S.C.C. 319 that, a suit filed prior to the Benami Transactions (Prohibition) Act, 1988 coming into force, the said act has no applicability to the same. (ii) In a case between Samittri Devi & Another Vrs. Sampuran Singh & Another reported in (2011) 3 S.C.C. 556 in Para 20 and 23 that, Benami Transactions (Prohibition) Act, 1988— Section 4—Prospective in operation—Not attracted to pending suits, which were already filed and entertained before coming into force of the Act. SA No.52 of 1991 Page 10 of 17 // 11 // (iii) In a case between Fatima Begum Vrs. Usman Mohammad & Others reported in 2012 (II) OLR 762 that, suit or appeal filed prior to 19.05.1988 is not hit by the prohibition contained in Section 4 of the Act, 1988. 18. Here, in this suit/appeal at hand, when the suit was filed on dated 06.11.1985 prior to the coming into force of the Benami Transactions (Prohibition) Act, 1988 and when, defendant Nos.1 and 2 have also delivered their defence on dated 28.04.1986 claiming the defendant No.3 as Benamidar of the suit properties prior to the coming into force of The Benami Transactions (Prohibition) Act, 1988 and when, the earlier decision of the Apex Court reported in AIR 1989 SC 1247 relating to the retrospective application of The Benami Transactions (Prohibition) Act, 1988 has already been over-ruled by the above referred three Judges Bench decision of the Apex Court reported in 2011(3) SCC 556, then, at this juncture by applying the principles of law enunciated in the ratio of the aforesaid decisions of the Apex Court and Hon’ble courts, it is held that, the grounds taken by the appellant (plaintiff) that, the pleas of the defendant Nos.1 and 2 in their written statement in the suit is hit by the Section 3 and 4 of the SA No.52 of 1991 Page 11 of 17 // 12 // Benami Transactions (Prohibition) Act, 1988 cannot be sustainable under law. 19. In India two kinds of benami transactions are recognized i.e. :- (i) Where, any person buys properties with his own money, but in the name of another person without any intention to give benefit to such person in whose name the property is purchased, the said transaction is called as Benami. In that case, transferee holds property for benefit of person, who has contributed the purchased money to the vendor and the person, who had contributed money is the real owner of the same. (ii) Where a person, who is owner of the property executes conveyance in favour of another without any intention to transfer the title of the property thereunder in favour of the named vendee retaining the title with him and continues as the real owner, i.e. also called as Benami transaction. 20. As per law, there is presumption that, the person, in whose name property is purchased, he is the real owner of the same and such presumption can be displaced only by pleading and successfully proving that, the person, whose name appears in the Page 12 of 17 SA No.52 of 1991 // 13 // document as a vendee is not the real owner, but only Benamidar and in such a case, burden lies on person, who pleads that, the named vendee in the deed is a mere name lander, but, not the real owner. 21. Here, in this suit/appeal at hand, it is the concurrent findings of the Trial Court and 1st Appellate Court on fact after appreciating the oral and documentary evidence of the parties that, though, the name of the defendant No.3 has been reflected in the sale deed No.150 of 1960 (Ext.3) as a purchaser of the suit properties, but, the defendant No.2 is the real purchaser and real owner of the same, because, the defendant No.2 has paid the consideration amount to the vendor Dhena Barik without any intention to give any benefit of the purchased land to the defendant No.3. For which, both the Courts i.e. the Trial court as well as the 1st Appellate Court both have held after appreciating the oral and documentary evidence of the parties that, the defendant No.2 is the real purchaser as well as real owner of the suit properties, in which, the defendant No.3 has no interest. Therefore, the so-called transfer of the suit properties made by the defendant No.3 in favour of the plaintiff through sale deed SA No.52 of 1991 Page 13 of 17 // 14 // dated 679 of 1989 (Ext.4) does not create any interest in respect of the suit properties in favour of the plaintiff. 22. This Court is the 2nd Appellate Court. It is very fundamental in law that, first appeal is always treated as continuation of the suit. Virtually in the first appeal, there is rehearing of the civil suit, because, in the 1st Appeal, whole case is open for reconsideration, but, the scope of adjudication in the 2nd appeal is limited. The 2nd appellate Court like this Court has no jurisdiction to interfere with the concurrent findings of fact made by the Trial Court and 1st Appellate Court, those have given findings on fact after appreciating the oral and documentary evidence of the parties. For which, as per law, the concurrent findings on fact made by the Trial Court and 1st Appellate Court after thorough appreciation of oral and documentary evidence of the parties are not required to be disturbed on interfered with in the 2nd appeal by the 2nd Appellate Court, unless such findings are perverse or the same are passed in ignorance or non-consideration of any material/vital evidence on record. SA No.52 of 1991 Page 14 of 17 // 15 // On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- 2010 (3) PLR 387 (P & H)—Tarsen Lal (i) Vrs. D. Improvement Trust, Patiala—CPC, 1908—Section no jurisdiction to interfere with the findings of the fact arrived at by Courts below, even if, the same are erroneous—Legislature never wanted Second Appeal to become a third trial on fact. 100—High Court has 2014 (Supp-I) OLR 429—Kasinath Nandi (ii) (dead), after him, his LRs. Tapan Kumar Nandi and others Vrs. Rudranarayan Mishra and others—(Paragraph 9)—CPC, 1908—Section 100—Findings by Courts below being a finding of fact on proper appreciation of evidence, it cannot be interfered with in Second Appeal.
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Smt. 2017 (I) Civil Court Cases vrs. 515 (iii) (Bombay)—Madhukar Nanda Madhukar Yene and another—CPC, 1908— Appeal—Concurrent Section findings of fact by Trial Court and First Appellate Court considering evidence led by both the parties, when such findings are not perverse, the same cannot be interfered with in the Second Appeal. 100—Second 2020 (iv) (I) Apex Court Judgments—C. Doddanarayana Reddy (dead) by Lrs. & others Vrs. C. Jayarama Reddy (dead) by Lr. & others— CPC, 1908—Section 100—Second Appeal— Concurrent finding—Finding of fact cannot be interfered in the Second Appeal, unless the findings are perverse. 2010 (3) Civil Court Cases page 800 (P & (v) H)—Raj Kali Vrs. Jitender—CPC, 1908—Section 100—Second Appeal—High Court has no jurisdiction to interfere with the findings of fact, arrived at by the Courts below even if the same are grossly erroneous. SA No.52 of 1991 Page 15 of 17 // 16 // 2019 (I) MAH. LJ 183—Sabaji Dhabji (vi) Dhore Vrs. Baburao Raghuji Kare—CPC, 1908— Section 100—Second Appeal—Scope where there are concurrent findings of fact and there is no materials to show that, any vital evidence was ignored or that inadmissible evidence has been considered, there is no scope for interference with such findings in the Second Appeal. 23. When, it is the concurrent findings of fact by the Trial Court and 1st Appellate Court after appreciating the oral and documentary evidence of the parties that, the defendant No.3 was the Benamidar in the sale deed vide Ext.3 bearing No.150 of 1960 in respect of the suit properties, but, the defendant No.2 is the real owner/purchaser of the same, then at this juncture, in view of the principles of law enunciated by the Hon’ble Courts and Apex Court in ratio of the decisions referred to (supra), there is no justification under law for making any interference with the concurrent findings on fact made by the Trial Court and 1st Appellate Court through this 2nd appeal filed by the appellant (plaintiff), because, the findings of the trial court and 1st Appellate Court are neither perverse nor bad for non- consideration of material evidence. For which, there is no merit in the 2nd appeal filed by the appellant (plaintiff). The same must fail. SA No.52 of 1991 Page 16 of 17 // 17 // 24. In result, the appeal filed by the appellant (plaintiff) is dismissed on contest, but without cost. The judgments and decrees passed by the Trial Court and 1st Appellate Court in T.S. No.34 of 1985 and T.A. No.30 of 1987 respectively are confirmed. Judge (A.C. Behera), Orissa High Court, Cuttack 25th Of February, 2025/ Binayak Sahoo// Junior Stenographer Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Mar-2025 10:25:37 SA No.52 of 1991 Page 17 of 17