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TMI Blog2000 (5) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 evic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the case set-up by respondent no.4 was that there was no relationship of landlord and tenant between the parties and that had entered into an agreement with the vendors for the purchase of the property. The said agreement was brought about in the name of his elder brother because the family was joint. Respodents 2 and 3 had agreed to advance to him Rs.15,000/- which was the balance amount payable to the vendors. By way of security they insisted that the conveyance deed should be in the name of respondent no.1 and to cover the interest on the loan amount of Rs.15,000/-, Rent note dated 24th December, 1968 was executed. In fact there was no relationship of landlord and tenant between the parties. An order of eviction was passed in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrange the balance amount of Rs.15,000/-. Respondent nos.2 and 3 agreed to advance him the said sum but they asked for sale deed in favour of respondent no.1. The sale deed is said to have been executed in the name of respondent no.1 only to operate as security for the amount of Rs.15,000/- advanced by respondents 2 and 3. Substantially, the case of the appellant in regard to purchase of property was the same as was the case set up by his brother in the eviction petition except that in the said proceedings brother claimed ownership and in this suit elder brother claimed ownership. In the written statement respondents 1 to 3 took the plea that the suit was got filed by respondent no.4, with a view to delay the execution of decree and deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable in view of Sec.281-A of the Income Tax Act as amended by Taxation Laws (Amendment) Act, 1972? 2. Whether on facts and circumstances of the case, respondent No.1 could be said to be the owner of the suit property as held by the appellate Court?" In view of the decision of this court in Mithilesh Kumari Vs. Prem Behari Khare, [(1989) 2 SCC 95] interpreting Section 4 of the Benami transactions (Prohibition Act, 1988) and holding the said provision to be retrospective in operation, the High Court without deciding the aforesaid said questions, allowed the appeal and set aside the judgment and decree passed by the First Appellate Court. The High Court held that the suit where the property said to be held benami by present respondent no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit schedule property 4) Plaintiff has failed to establish that he inducted the fourth defendant as licensee. 5) Plaintiff has failed to prove that rent received by defendants 2 and 3 from fourth defendant was by way interest to the loan advanced. 6) Plaintiff has failed to prove the possession of suit schedule property." In R.Rajagopal Reddy (dead) by Lrs. Ors. Vs. Padmini Chandrasekharan (dead) by Lrs. [(1995) 2 SCC 630], this Court has overruled the decision in the case of Mithilesh Kumari and has held that the provisions of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 are not retrospective in operation and do not apply to pending suits and entertained prior to coming into force of Section 4. The suit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of admission of the second appeal and it had no jurisdiction to reappreciate the evidence as a First Appellate Court. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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