2000 (5) TMI 1042 - SC - Benami Property

Whether the suit of the appellant was rightly decreed by the First Appellate Court or not? Held that - Having perused the order of the High Court dated 20th April, 1994 and the record of the case we find no infirmity in the view expressed by the High Court. We are unable to accept the contention of the learned counsel for the appellant that the High Court has re- appreciated the evidence as if it was deciding the first appeal. Though the High Court has observed that findings arrived at by the First Appellate Court are not based on proper appreciation of the evidence on record and the same are set aside but for all intents and purposes and in substance the conclusion of the High Court is that the decision of the First Appellate Court is based on no evidence and is perverse. We are in complete agreement with the conclusions of the High Court. The High Court has rightly drawn adverse inference on account of nonexamination of respondent no.4 as a witness by the appellant. On the facts and circumstances of the case that was vital and was rather the heart of the entire matter going to the root of the whole case. There was no explanation for non-examination of respondent no.4. Clearly, the decree of the First Appellate Court is based on no evidence and is perverse. The appellant had admittedly knowledge of the eviction petition filed by respondent no.1 against his brother respondent no.1. On the facts of the case, it was over simplification for the First Appellate Court to observe that what transpired between the appellant and his brother was of no consequence in so far as the appellant is concerned. It is evident that the appellant was set-up by his brother after having lost in the eviction petition upto High Court and the suit was filed in the year 1976 during the pendency of the execution proceedings of the eviction order. We fail to understand what appellant was doing from 1968 upto 1976. The net result of all this has been that despite lapse of nearly 30 years since filing of the eviction petition, respondent no.1 was unable to recover the possession and that is despite the respondent no.1 having succeeded up to High Court in the eviction case nearly a quarter century ago. For the aforesaid reasons we dismiss the appeal with costs.

Summary

Issues involved:
- Eviction petition based on nonpayment of rent and sub-letting
- Suit filed for declaration of ownership and injunction
- Questions of law regarding maintainability of the suit and ownership of property
- Interpretation of Benami Transactions (Prohibition) Act, 1988
- Appeal challenging High Court judgment based on Mithilesh Kumari case
- Consideration of Rajagopal Reddy case and retrospective application of Section 4(1) of Benami Act
- Examination of evidence, non-examination of a witness, and adverse inference
- Delay tactics in litigation and imposition of exemplary costs

Eviction petition and suit for declaration:
The case involved an eviction petition filed by respondent no.1 against respondent no.4, seeking possession of a property due to nonpayment of rent and sub-letting. Respondent no.4 claimed ownership of the property through an agreement for purchase, which was disputed by respondent no.1. Subsequently, a suit was filed by the elder brother of respondent no.4 for a declaration of ownership and an injunction against respondents 1 to 3. The trial court dismissed the suit, but the Principal District Judge decreed it in appeal, leading to a Regular Second Appeal filed by respondent no.1.

Questions of law and interpretation of Benami Act:
The High Court framed questions regarding the maintainability of the suit and ownership of the property under the Income Tax Act. Citing the Mithilesh Kumari case, the High Court initially set aside the decree passed by the First Appellate Court, ruling that the suit involving alleged benami property was not maintainable. However, the Rajagopal Reddy case clarified that the Benami Transactions Act is not retrospective, allowing the appellant's suit to proceed.

Examination of evidence and adverse inference:
The High Court's findings highlighted various failures on the part of the appellant to prove ownership, possession, and other essential aspects related to the property. Notably, the non-examination of respondent no.4 as a witness raised concerns, leading to adverse inferences. The High Court concluded that the First Appellate Court's decision was based on no evidence and was perverse, ultimately dismissing the appellant's appeal.

Delay tactics and imposition of costs:
The judgment expressed concern over the misuse of litigation to delay rightful outcomes, emphasizing the need to curb such practices. The court noted the prolonged legal battle spanning nearly 30 years, resulting in the appellant's failure to comply with the eviction order. Consequently, the court imposed exemplary costs of Rs.25,000 on the appellant, emphasizing the importance of respecting court orders and discouraging fraudulent litigation tactics.