2020 (3) TMI 1106 - HC - Benami Property

Benami transaction - the plaintiff failed to prove that money was paid from the fund of the joint family of the plaintiff and defendant No.1 - As urged that the plaintiff failed to prove that money was paid from the fund of the joint family of the plaintiff and defendant No.1. - maintainability of the suit - HELD THAT - In the instant case when the defendant abandoned the issue of maintainability of the suit on the point of inconsistent plea of title by the plaintiff and again right of tenancy over the self same property, the defendant cannot challenge the maintainability of the suit at the stage of first appeal. Mr. Saha also refers to the decision of this Court in Smt. Minati Sen @ D.P. Sen vs. Kalipada Ganguly 1997 (6) TMI 366 - CALCUTTA HIGH COURT in the said report the respondent raised an issue that both the Courts below did not consider as to whether the defendant/appellant was guilty for damaging the suit property by addition and alteration. This Court found that the said issue was not pressed by the plaintiff/respondent in the trial court and held that when the issue was not pressed by the plaintiff/respondent in the trial court, there was no justification for the appellate court to go into this question and decide the same in favour of plaintiff/respondent. When a party has raised an issue in the trial court and deliberately has abandoned it, he cannot be allowed to raise it again at the appellate stage. Order VII Rule 7 of the Code of Civil Procedure authorizes the appellant to claim a relief in the alternative on the facts stated in the plaint and it is open to him to pray even for inconsistent relief. But it must be shown by the plaintiff that each of such pleas is maintainable. In the instant case, as gone through the plaint time and again. In paragraph 8 of the plaint, the plaintiff/respondent stated as to how the consideration money was paid to purchase the suit property in the name of defendant No.1. In paragraph 12 of the plaint the plaintiff stated that since the suit property stood in the name of the defendant No.1 and in order to avoid future complications the defendant No.1 settled 2/3rd share of the suit property in favour of plaintiff and proforma defendant No.2 at yearly settlement of ₹ 9/- by executing a registered deed of settlement on 10th January, 1955. Thus agreement with the learned Advocate for the respondent that the respondent claimed title in respect of 1/3rd share of the suit property on the basis of the said registered deed of settlement executed by the defendant No.1. Whether finally published Record of Rights in respect of the suit property would disentitle the plaintiff to institute a suit for declaration of title? - In Jharna Ghosal vs. Satyendra Prosad Dhar 1978 (1) TMI 178 - CALCUTTA HIGH COURT held that Section 57B of the said Act did not either expressly or by necessary implication exclude the jurisdiction of civil courts to decide questions of title. No substantial question of law involved in the instant appeal and this appeal is liable to be dismissed on contest, however without cost.

Summary

Issues Involved:
1. Maintainability of the suit due to alternative and inconsistent pleas of title and tenancy.
2. Burden of proof regarding Benami transactions.
3. Applicability of the Benami Transactions (Prohibition) Act, 1988.
4. Bar under Section 51C of the West Bengal Land Reforms Act, 1955.

Detailed Analysis:

1. Maintainability of the Suit:
The appellant argued that the plaintiff's suit was not maintainable due to taking inconsistent pleas of title and tenancy under Order VII Rule 7 of the Code of Civil Procedure. The plaintiff claimed joint ownership of the suit property and also mentioned a registered deed of patta executed by the defendant No.1 in favor of the plaintiff and proforma defendant No.2. The appellant contended that a person cannot claim ownership and tenancy over the same property simultaneously. The court, however, noted that the issue of maintainability was not raised during the trial or first appeal and cannot be challenged at the second appellate stage. The court referenced the decision in Prem Raj vs. The D.L.F. Housing and Construction (Private) Ltd. to support the argument that inconsistent reliefs can be claimed if each plea is maintainable.

2. Burden of Proof Regarding Benami Transactions:
The appellant contended that both lower courts wrongly placed the burden of proving Benami on the defendant. The plaintiff claimed that the suit property was purchased from the joint family fund, making the defendant No.1 a name lender. The court emphasized that the burden of proving a Benami transaction lies on the person asserting it. The plaintiff failed to provide evidence that the purchase money came from the joint family fund. The court referred to the principles in Bhim Singh (Dead) by Lrs and Anr. vs. Kan Singh, which outline the circumstances under which a transaction can be considered Benami.

3. Applicability of the Benami Transactions (Prohibition) Act, 1988:
The appellant argued that the lower courts erred in holding that the defendant No.1 could not take the defense of Benami after the promulgation of the Benami Transactions (Prohibition) Act, 1988. The court noted that suits filed prior to the Act's application are not affected by its provisions, referencing R. Rajagopal Reddy & Ors. vs. Padmini Chandrasekharan. The court found that the plaintiff could not prove ownership over the suit property or that the defendant No.1 was merely a name lender.

4. Bar under Section 51C of the West Bengal Land Reforms Act, 1955:
The appellant argued that the suit was barred under Section 51C of the West Bengal Land Reforms Act, which restricts civil courts from granting declarations regarding entries in the Record of Rights. The court clarified that while civil courts cannot declare entries in the Record of Rights erroneous, they can decide on the title based on title deeds. The court cited Ayubali Sardar vs. Derajuddin Mallick and Jharna Ghosal vs. Satyendra Prosad Dhar, which upheld the civil court's jurisdiction to decide questions of title despite adverse entries in the Record of Rights.

Conclusion:
The court dismissed the appeal, affirming the judgments and decrees of the lower courts. The plaintiff's title over the suit property was upheld based on the registered deed of settlement executed by defendant No.1. The court found no substantial question of law involved in the appeal and emphasized the civil court's jurisdiction to decide on the title despite the entries in the Record of Rights. The appeal was dismissed on contest, without cost.