1. Heard learned counsel for the parties, on point of admission of this second appeal and perused the records.
2. Original Suit No. 437/1985 was filed for the reliefs of partition, cancellation of sale-deed executed by Ganga Jali w/o Baij Nath (mother of plaintiff, defendants no. 2 & 3, and the grand-mother of defendants no 3 ro 7) in favour of defendant no.-8 and for the relief of permanent injunction for the property involved in the aforesaid sale-deed.
3. The relationship between parties is admitted that Baij Nath and his wife Ganga Jali had four sons Hajari Lal (plaintiff), Kedar Nath (defendant no.-1), Bachchu Lal (defendant no.-2), late Mewa Lal (father of defendants no. 3 to 7). They also had two daughters (Prabhawati & Hirawati). Admittedly Smt. Vimla (defendant no.-8) is wife of defendant no.-1. Smt. Prabhawati (defendant no.-9) is wife of defendant no.-5.
4. It is also admitted that disputed property was purchased by registered sale-deed in year 1932 in the name of Smt. Ganga Jali. It is also admitted that plaintiff's father Baij Nath had died in year 1965, and mother Smt. Ganga Jali had died in July, 1974.
5. It is also admitted that a sale-deed dated 10.07.1974 was executed on behalf of Smt. Ganga Jali in favour of her daughter-in-law Smt. Vimla (defendant no.-8), which was registered on 27.09.1974. This sale-deed is under challenge in this litigation, the cancellation of which was sought in original suit.
6. In original suit no. 437/1985 the plaint case in brief was that plaintiff in year Baij Nath purchased property in question (detailed in plaint by letters "Ka, Kha, Ga, Gha") by registered deed in the name of his wife Smt. Ganga Jali. During life time of Baij Nath, before year 1953, this property was partitioned between plaintiff and his brothers, and from that time all brothers started their residence and business separately. In this partition the plaintiff's sisters relinquished their shares and the plaintiff got one-fourth share in said property (detailed in plaint by letters "Gha, Ja, Jha, Ka"). The memorandum of partition was written in year 1953. Defendants have no concern with this property that came in share of plaintiff. But some dispute arose with defendant no.-8, then plaintiff came to know about sale-deed allegedly executed by Smt. Ganga Jali in favour of defendant no.-8 ,who claimed rights over the property of share of plaintiff. So plaintiff had filed suit for permanent injunction for his share of property, partition and cancellation of sale-deed dated 10.07.1974 was allegedly executed by of Smt. Ganga Jali in favour of her daughter-in-law Smt. Vimla (defendant no.-8), which was registered on 27.09.1974. The ground taken for cancellation of said deed is that plaintiff is owner of disputed property, and the Ganga Jali had no right to execute the sale-deed of the same because she was not owner of property in question, she was unable to understand contents of said deed, she was not alive on the date of execution of said sale-deed, and said document was executed and got registered by fraud and impersonation, by presenting any wrong lady in registration office.
7. In original suit, the defendants no. 1, 2/1, 3 to 7 filed written-statements in which plaint case was admitted. But defendant no.-8 Smt. Vimla contested the suit by filing written-statement in which plaint case was denied, and it was further pleaded that the property purchased in 1932 was in the ownership of Smt. Ganga Jali who had executed sale-deed of the same in favour of defendant no.-8 and handed over its possession. The defendant no.-8 is owner in possession of disputed property. The plaintiff has no share in disputed property and his suit is liable to be dismissed.
8. After affording opportunity of hearing, the trial court (Civil Judge (Junior Division), Chunar, Mirzapur had dismissed the suit by its judgment dated 20.12.2012. In this judgment the trial court had held that the alleged deed of partition and relinquishment of shares by sisters of plaintiff is un-registered document which is inadmissible in evidence. Such document cannot create any right in disputed immoveable property. Trial court had appreciated the evidences and held that Smt. Ganga Jali was the real owner of property purchased in her name in year 1932, and she had herself executed sale-deed in question in favour of defendant no.-8. Trial court had held that plaintiff had failed to prove his case. With these findings of facts, in favour of defendant no.-8 and against the plaintiff, learned civil judge had dismissed the plaintiff's suit.
9. The legal representatives of plaintiff Hajari Lal had preferred first Civil Appeal no. 6/2013, which was heard and dismissed by the judgment dated 30.11.2015 passed by Additional District Judge, Court No.-6, Mirzapur. In this judgment the first appellate court had framed three points of determination, firstly on point of alleged benami purchase of property in question in name of Smt. Ganga Jali, secondly on point of alleged unauthorized execution of sale-deed in question by Smt. Ganga Jali in favour of defendant no.-8, and thirdly on point of alleged forged and fraudulent execution of sale-deed in question by any imposter on behalf of Smt. Ganga Jali. The first appellate court had also appreciated facts and evidences and gave specific findings of facts on each point against plaintiff-appellant and in favour of contesting defendant no.-8. On basis of those findings first appeal was dismissed.
10. Learned counsel for the appellant contended that lower courts have ignored the admissions in pleadings of defendants other than defendant no.-8. He submitted that evidences were ignored by lower courts whose judgments are based on conjunctures and surmises. He also argued that although defendant no.-8 was not examined in evidence but her pleading was erroneously accepted as proved, therefore the appeal should be admitted for being allowed.
11. Learned counsel for the respondent-contesting defendants refuted the contentions of appellant side and submitted that defendants had never challenged the ownership or title of Smt. Vimla Devi, and they had merely consenting defendants had consented the plaint case due to greed and possibility and probability of wrongful gain. So in view of their earlier acquiescence to title of Smt. Ganga Jali and of Smt. Vimla Devi, their admission had no purposeful meaning as barred by principle of estoppel and acquiescence. He contended that in present case witnesses of defendant no.-8 had proved her case and pleading, especially the execution of sale-deed in question and its registration. Therefore the absence of Smt. Vimla Devi from evidence cannot have any adverse presumption. He further submitted that since plaintiff-appellant had failed to prove his case therefore suit and first appeal were rightly dismissed, and the judgments of lower courts are not erroneous, so this second appeal should be dismissed in limne.
12. Section 2(a), 3 and 4 of the Benami Transactions (Prohibition) Act, 1988 reads as under:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(a) "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person;"
"3. Prohibition of benami transactions.--(1) No person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to--
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;
(b) - - -
(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) - - -"
"4. Prohibition of the right to recover property held benami.--(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply,--
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
13. So far the merits of the matter is concerned, it is pleaded in plaint that the disputed property was purchased in the name of Smt. Ganga Jali, but it was purchased by Baij Nath. If plaintiff-appellant's case is taken to be true, then alleged purchase by him was a 'benemi' transaction. The plaintiff-appellant's claim on disputed property is not as member of Hindu undivided family or the purchase for benefit of any coparcener or as a trustee. If the facts mentioned in plaint are taken to be true on its face value, then in such circumstances also, the plaintiff's claim of co-ownership cannot be decreed, as being barred by the provisions of the Benami Transactions (Prohibition) Act, 1988.
14. There cannot be legal presumption that property purchased in the name of wife should be treated as purchased by husband as benami transaction. Admittedly the disputed property was not ancestral property as it was purchased in year 1932 from third person. It was not Joint Family property and was purchased in the name of Smt. Ganga Jali. In such matter the Benami Transaction Act bars any other presumption except that of the ownership of Smt. Ganga Jali. Apparently this finding of lower court is not erroneous that during his lifetime, from year 1932 to 1965, neither the Baij Nath nor his sons and daughters including the plaintiff-appellant, had ever challenged the title and ownership of Smt. Ganga Jali over disputed property and other property purchased in year 1932,which is proof of her title. Smt. Ganga Jali, being owner of said property, had legal right to transfer the same, therefore the sale-deed executed by her cannot be treated as without any legal authority. The grounds taken on behalf appellants are unacceptable.
15. The document of alleged memorandum of partition mentioned in the plaint was, in fact, basis of the suit. Inter alia, this being a document of relinquishment of rights of property by sisters of plaintiff-appellant, it should have been registered for being admissible and acceptable in evidence. Due to non-registration of aforesaid document appellant cannot acquire any legal right relating to such disputed immovable property. Such unregistered document is inadmissible in evidence. Therefore it appears difficult that the suit based on such document may succeed. This being unregistered document was rightly discarded by the trial court as inadmissible in evidence. Such finding of trial court is not erroneous.
16. Apart from it the lower appellate court had had also meticulously appreciated the available evidences, including the paper no. 11-C of record, which is the alleged memorandum of partition mentioned in the plaint. In this document it is mentioned that owner of property in question was Smt. Ganga Jali. In this document plaintiff and his brothers were deprived of the right to admit in any way, any person on any part of property given to plaintiff and his brothers any way, even as tenant. In this document it was mentioned that Smt. Vimla Devi (defendant no.-8) will have right to evict plaintiff and his brothers from the property. This document was executed in presence of parties and parents of plaintiff. The contents of this document negate the plaint case. Thus had this document been admissible in evidence, in that case also the plaintiff or his brothers would have not acquired any right in any part of disputed property. This document, which is basis of alleged right of parties, is proof of the fact that plaintiff or his brothers had not right of title or co-ownership in disputed property. The finding of first appellate court in this regard is apparently correct and acceptable. Therefore if plaint case is taken to be correct, in that case also case of the original suit was liable to be dismissed.
17. The trial court had also considered the evidences, facts and circumstances of the matter and thereafter given finding of fact against the appellant which are based on apparently correct and acceptable findings. As stated above the the first appellate court had also appreciated facts and evidences and gave specific finding of fact that disputed sale-deed was legally and properly executed by Smt. Ganga Jali, and that the plaintiff had failed to prove its case in that regard. This finding appears to have been passed after consideration of all the adduced evidences and, the conclusion reached by the first appellate court is apparently correct and acceptable.
18. There are specific findings of the two courts below that the grounds mentioned in plaint for cancellation of registered sale-deed in question could not be proved by the plaintiff-appellant. In this regard both the lower courts have independently appreciated the evidences and have held their findings that the plaintiff had not been able to prove his case. These concurrent finding of facts are apparently cannot said to be erroneous and perverse. Such findings cannot be interfered in the second appeal by re-appreciating the evidences.
19. The only points to be determined in this appeal before this court was as to whether the plaintiff-appellant is owner of the disputed property, and whether the sale-deed dated 10.07.1974, registered on 27.09.1974 allegedly executed by of Smt. Ganga Jali in favour of her daughter-in-law Smt. Vimla (defendant no.-8) is liable to be cancelled. These are not the question of law, but are questions of fact that could be decided on basis of evidences, as had been done by the lower courts. Their judgments in present case are based on appreciation of all the available evidences, and findings are apparently acceptable. Such concurrent findings, being not infirm, should not be interfered in second appeal.
20. On examination of the reasonings recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate Court are well reasoned and are based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law, was involved in this case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained.
21. In view of the above, and for the reason that this Court finds that no substantial question of law arises in this matter, this appeal is dismissed.
Order Date :- 18.04.2016 SR