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TMI Blog2022 (3) TMI 1611X X X X Extracts X X X X X X X X Extracts X X X X ..... is permitted to demolish the case of the Appellant by way of cross-examination by pointing out the weaknesses or falsity of the Appellant's case and to that extent to defend her case as held in Modula India supra and which R-2 has done to her advantage herein. The substantial question of law is determined accordingly. - THE HON BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE Mr. Sajal Sharma, Advocate For the Appellant. Mr. S.S. Hamal, Advocate for the Respondent No.1. Mr. Vivek Anand Basnett, Advocate (Legal Aid Counsel) for the Respondent No.2. JUDGMENT Meenakshi Madan Rai, J. 1. In this Regular Second Appeal, the following substantial questions of law were formulated for determination; A. Whether a Court can pass a Decree declaring a party to be the absolute owner of the suit premises and give him right, title and interest over the same by virtue of a registered document which is an Agreement for Sale? B. Whether the non-filing of a Written Statement by the Defendant No.1 to the Counter-Claim filed by the Defendant No.2 would constitute admission by the Defendant No.1? C. Whether the prayer for declaration of title of the suit property in favour of the Plaintiff is barred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of written averments by Respondent No.2 contradicting his stand, reliefs as sought by him in the Counter- Claim ought to be granted to him. (ii) Learned Counsel Mr. S.S. Hamal, for the Respondent No.1, per contra contended that both the Courts below had come to a concurrent finding which brooks no interference in consideration of the failure of the Appellant to fortify his claims of ownership of the land and the building on it. It is his contention that the dispute between the Respondent No.2 and the Respondent No.1 had, in fact, already been settled when the Appellant sought to be impleaded as a party to the Title Suit at that juncture, claiming ownership of the suit property, sans documents of registration. That, it is an admitted fact that the entire building was registered in the name of the Respondent No.2 as also the land on which it stood, thereby indicating her ownership. She had sold the suit premises to Respondent No.1. That, although subsequently, a claim of the building being benami property was raised by the Appellant, he failed to prove this aspect in terms of Section 2 of the Prohibition of Benami Property Transactions Act, 1988, hence his case requires no considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant No.1 (hereinafter referred to as R-2) as also the United Bank of India, Gangtok Branch as the Defendant No.2; the Authorized Officer of the United Bank of India, Gangtok Branch as the Defendant No.3; and the District Magistrate, East, as the Defendant No.4. (ii) Before the Learned Trial Court, R-1 contended that R-2 had constructed a five storeyed RCC building on a plot of land measuring 0.05 acres in Gangtok. The suit premises measuring 21 feet x 21 feet situate in the building was sold to him, by R-2, for a consideration value of Rs. 19,80,000/- (Rupees nineteen lakhs and eighty thousand) only. An Agreement for Sale, Exhibit 1, dated 27.03.2008 was drawn up between the R-1 and R-2 and duly registered before the Office of the Sub Registrar, Gangtok, East Sikkim, however, the Sale Deed document remained unregistered due to the File being misplaced in the said Office. From 2008 onwards, R-1 remained in continuous peaceful possession and enjoyment of the suit premises. On 14.03.2013, he learned that a Notice was served on R-2 by the Office of the Defendant No.4, under Section 13(2) of the SARFAESI Act, 2002. Pursuant thereto, Defendant No.3 served a Notice on R-2 informing her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er own monetary source?; (onus on defendant no.1) 2) Whether the document agreement for sale ‟ dated 27.03.2008 between the plaintiff and defendant no.1 is null and void and against the law of the land?; (onus on defendant no.2) 3) Whether the suit property was purchased by defendant no.2 from his earnings in the Benami of his wife, def. no.1? (onus on defendant no.2); 4) Whether the defendant no.2 has locus standi to file the counter claim against the plaintiff with respect to the suit premises? (onus on defendant no.2) ‟ 6.(i) Issue No.3 was taken up first for convenience and the Learned Trial Court observed that the Appellant was unable to prove that the suit property was purchased by him from his earnings benami for the R-2. In Issue No.4, the Learned Trial Court observed that apart from the fact that the Appellant is the husband of R-2, there were no documents to indicate that he had purchased the land and constructed the five and a half storeyed RCC building thereon, this Issue was decided accordingly. In Issue No.1, the Learned Trial Court opined that the Appellant simply stating that he had purchased the property in the name of the R-2 would not suffice to estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was not exhibited (being Annexure D2-1) would have this Court assume that R-2 had no ostensible means of an independent income, while in the same breath in his evidence admitting that the lottery business was registered in their joint names and income accrued to the business. This would lead to the inevitable assumption as urged by Learned Counsel for the R-2 that she had an equal share in the proceeds of the business. (ii) While addressing the argument of Learned Counsel for the Appellant that by non-filing of Written Statement by R-2 to the Counter-Claim of the Appellant, she has admitted the Appellant‟s averments, this Court is aware of the legal position that a Written Statement must deal specifically with each allegation of fact in the Plaint. When a Defendant denies any such fact, he cannot do so evasively but must respond to the allegation specifically. Should the denial of fact not be specific but evasive, the fact shall be taken to be admitted. The same rule applies in the case of an assertion made in a Counter-Claim and a denial in the Written Statement to the Counter-Claim as apparent from the provisions of Order VIII Rule 3 and Order VIII Rule 6G of the CPC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it appears that the basic principle that where a plaintiff comes to the court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the court can only do this by looking at the plaintiff's evidence and pleadings supplemented by such questions as the court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the court under a great handicap in discovering the truth or otherwise of the plaintiff's statements. For after all, the court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiff's averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the Court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiff's case. 20. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it property in the name of defendant no.1. It is true that a lottery business run by me in the name and style of Bindya Agency , the def. no.1 also had partnership of 50%. It is true that in exbt-D2-201, I have not mentioned as to from whom the suit land was purchased. It is true that in the year 2005 when the loan was availed from the Union Bank of India, the same was availed in the name of Def. no.1. I was a guarantor for the said loan. It is true that the loan was availed for the purpose of converting the RCC structure standing in the suit land into a hotel. It is true that the final settlement amount with the bank to avoid the property from being auctioned was not paid by me. It is true that the loan amount amounting to almost 1.10 crores approximately was cleared by the def. no.1. Witness volunteers to say that def. no.1 had cleared the same by selling his property for which he had not given any consent. (Emphasis supplied) While admitting that R-2 paid off the entire loan towards which she sold his property, the Appellant led no evidence to indicate which property of his R-2 had sold off to make good the payment of the loan. He further stated as under, It is true that a hotel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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