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TMI Blog2020 (3) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 executin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year 1953/54 the plaintiff, defendant No.1, proforma defendant No.2 and father of defendant No.3 purchased the suit property situated at mouza Uttor Bhavanipur within P.S Chakdaha in the district of Nadia together with some non suited properties in the names of the defendant No.1 and proforma defendant No.3 out of the fund from the joint family of the plaintiff/defendant No.1 and defendant No.2. Half of the purchase money was also paid by the father of the defendant No.3. The plaintiff was given to understand that as he was an employee under the State of West Bengal there might be some difficulty if the suit property was purchased in his name. However, since purchase the plaintiff, defendant No.1, proforma defendant No.2 and defendant No.3 jointly owned and possessed the suit property according to their respective shares. Subsequently on 13th December, 1954, there was an amicable partition amongst them and by virtue of the said partition, the plaintiff, defendant No.1 and proforma defendant No.2 jointly began to possess the suit property remaining proforma defendants started possessing their share separately from them. That on 10th May, 1955 the principal defendant No.1 executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995. However at the time of admission of appeal, no substantial question of law was formulated for adjudication of the appeal. Accordingly vide order dated 2nd November, 2017 a Coordinate Bench of this Court formulated the following substantial questions of law:- (I) Whether the learned Courts below erred in law in not holding that the suit filed on behalf of the plaintiff was not maintainable for the reason of taking an alternative and inconsistent plea of title and tenancy under the provisions of Order VII Rule 7 of the Code of Civil Procedure; (II) Whether the learned Courts below have erred in law in not holding that the onus of proof by Benami was upon the plaintiff and he has failed to discharge such onus on evidence and (III) Whether the learned Courts below have erred in law holding that the defendant no.1 is debarred from taking the defence of Benami after the promulgation of Benami Transactions (Prohibition) Act, 1988 is absolutely erroneous inasmuch as the suit filed prior to the coming into effect of the said Act of 1988 not covering the case of the parties to the suit. 7. Thereafter by an order dated 10th December, 2019 this court framed addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant No.1 in respect of same property is not maintainable under the facts and circumstances of the case. Both the courts below failed to consider that the suit was not maintainable because the plaintiff prays for inconsistent reliefs on the basis of inconsistent pleas which is not maintainable. In other words, a person cannot claim right over a property as owner and at the same time as tenant. In support of his contention, Mr. Basu refers to a decision of the Hon ble Supreme Court in the Case of Prem Raj vs. The D.L.F. Housing and Construction (Private) Ltd. Anr. reported in AIR 1968 SC 1355. 10. Second limb of argument of Mr. Basu, learned Senior Counsel on behalf of the appellant is that both the courts below wrongly placed the burden of proving Benami upon the defendant. In order to substantiate his contention, he draws my attention to paragraph 8 of the plaint. It is stated in paragraph 8 that the plaintiff, defendant No.1 and proforma defendant No.2 contributed half of the consideration price from the earnings of their joint family and the remaining half of the consideration price was paid by the father of the proforma defendant No.3 to purchase the suit propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence tell that the plaintiff and defendant No.1 used to reside in jointness, far less than payment of consideration money from the joint family fund. In support of his contention Mr. Basu refers to the following decision:- (i) Vidyadhar Krishnarao Mungi and Ors. vs. Usman Gani Sahab Konkani Ors : AIR 1974 SC 658 (ii) Smt. Rebti Devi vs. Ram Dutt Anr. ETC : 1998 WBLR (SC) 17. 12. Referring to another decision of the Hon ble Supreme Court in Bhim Singh (Dead) by Lrs and Anr. vs. Kan Singh reported in AIR 1980 SC 727, it is submitted by Mr. Basu that the principles governing the determination of question whether a transfer is a Benami Transaction or not should be considered taking into account the following circumstances:- (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) If it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima-facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) The true character of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Advocate on behalf of the respondent on the other hand submits that the defendant/appellant cannot dispute the issue of the maintainability of the suit at the stage of second appeal when the said issue was not pressed by him during the trial of the suit. In support of his contention, Mr. Saha refers to a decision of the Division Bench of this Court in the case of Premchand Manickchand vs. Fort Gloster Jute Manufacturing reported in AIR 1959 Cal 620. In the aforesaid decision the question that came up for adjudication before the Division Bench of this Court is as to whether a contract for sale of jute was void, in as much as it was a contract in contravention of Forward Contracts (Regulation) Act, 1952 and consequently the arbitration agreement contained in the said contract was also void. In paragraph 5 of the above mentioned report, the Hon ble Chief Justice, as his Lordship then was speaking for the bench held as hereunder:- 5. So far as the first ground is concerned, I do not think that it is open to the appellant to urge it in appeal. It is quite true that a ground of law, particularly one which goes to the legal validity of the entire proceedings, can be taken for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 37 of the Specific Relief Act, 1877, a plaintiff suing for specific performance of contract can alternatively sue for rescission of the agreement and in the alternative sue for specific performance of contract. Section 35 of the Specific Relief Act states the principles upon which the rescission of contract may be adjudged but there is no provision in Section 37 or in other Section of the Specific Relief Act, 1877 that a plaintiff suing for rescission of the agreement may sue in the alternative for specific performance. The omission is deliberate and the intention of the Act is that no such alternative prayer is open to the plaintiff. The Hon ble Supreme Court was further pleased to held that such a plea cannot be justified under Order VII Rule 7 of the Code of Civil Procedure though under this provision it is competent for the plaintiff to pray for inconsistent relief, it must be shown that each of such pleas is maintainable. 19. Coming to the instant case, it is submitted by Mr. Saha that in paragraph 4 of the plaint the plaintiff/respondent clearly pleaded that the suit property was purchased in the joint names of defendant No.1 and proforma defendant No.3 from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. 25. 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, I have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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