Kantilal Dalichand Bhandari (L.Rs.) ... vs Jasodabai Jagannath Kalantri And ...
2025 Latest Caselaw 1489 Bom

Bombay High Court

Kantilal Dalichand Bhandari (L.Rs.) ... vs Jasodabai Jagannath Kalantri And ... on 6 August, 2025

2025:BHC-AUG:21025




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                     IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                  BENCH AT AURANGABAD

                               SECOND APPEAL NO. 652 OF 1992

              Kantilal Dalichand Bhandari
              (Deceased through LRs)

              1-A    Smt. Ichrajbai Kantilal Bhandari
                     (Deceased)

              1-B    Anilkumar s/o Kantilal Bhandari
                     age 30 years, occ. Service.

              1-C    Sunilkuamr s/o Kantilal Bhandari
                     age 28 years, occ. Service.

              1-D    Mrs. Manisha w/o Vijaykumar Mutha
                     age 25 years, occ. Household
                     r/o Shrigonda, Dist. Ahmednagar.

              1-E    Dinesh s/o Kanitlal Bhandari
                     age 24 years, occ. Service.

                     Petitioner Nos. 1A to 1C, 1E
                     r/o Behind Rahul Apartment Burudgaon Road
                     Ahmednagar.
                                                          .. Petitioners

              VERSUS

              1.     Jasodabai w/o Jagannath Kalantri
                     age 45 years, occ. Household
                     r/o Kapad Bazar, Post Tq. Sangamner
                     Dist. Ahmednagar.

              2.     The Ahmednagar District Urban
                     Central Co-operative Bank Ltd.,
                     having its registered office at Ahmednagar

              3.     Bansidhar Motiram Bihani
                     (Deceased through LRs)
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                                                         sa652.92.odt


3-A   Kansalyabai w/o Bansidhar Bihani
      age 60 years, occ. Household
      r/o Marwad Galli, Post and Tq. Shevgaon
      Dist. Ahmednagar.

3-B   Mangal w/o Rameshchandra Bhandari
      age 36 years, occ. Household work
      r/o Supari Hanuman Chowk
      Gulmandi Road, Aurangabad.

4.    Gokkuldas Chandanmal Changediya
      age 62 years, occ. Trade
      r/o Dalmandai, At. Ahmednagar
      Dist. Ahmednagar.                          .. Respondents

Mr. S. V. Dixit, Advocate for the Petitioner.
Mr. A. H. Kasliwal, Advocate for Respondent No. 1.
Mr. M. A. Jahagirdar, Advocate for Respondent No. 2.

                          CORAM : R. M. JOSHI, J.
                     RESERVED ON : 1st AUGUST, 2025.
                   PRONOUNCED ON : 6th AUGUST, 2025.

JUDGMENT :

1. This Appeal under Section 100 of the Code of Civil

Procedure takes exception to the judgment and decree dated

05.05.1984 passed in Regular Civil Suit No. 66/1978, whereby the

Plaintiff is declared as owner of the suit house and directed to be put

into possession thereof and award dated 24.10.1970 so also sale in

favour of Defendant No. 4, is held to be not binding on Plaintiff and

the judgment and decree dated 30.09.1992 passed in Regular Civil

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Appeal No. 218/1984 confirming the judgment and decree passed by

the Trial Court.

2. The parties are referred to as Plaintiff and Defendants for

the sake of convenience.

3. Appellant is the original Defendant No. 4, who is auction

purchaser of the suit house in the proceedings initiated against

Defendant No. 2 for execution of the award passed against him.

Plaintiff claims herself to be the grand-daughter of Chunabai

Jagannath Bihani. It is claimed that the suit house is purchased in

the year 1948 by Chunabai and she carried out construction on the

plot in or around 1949. It is further claimed that since then

Chunabai was staying in the said house till her death as owner.

Defendant No. 2 Banisidhar is nephew of Chunabai. It is the case of

the Plaintiff that around the year 1970, Defendant No. 2 by taking

undue advantage of ill health of Chunabai had obtained thumb

impression of her on blank paper and got his name mutated in the

record of Gram Panchayat. It is claimed that the same was done

without knowledge of Chunabai. It is claimed that Defendant No. 2

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was never owner of the suit house and had no right, title and interest

therein.

4. It is further case of the Plaintiff that she was not party to

the award or auction sale of suit property by Defendant No. 1/bank

against Defendant No. 2 Bansidhar and as such the orders passed

therein are not binding on her. Plaintiff claims that Chunabai died

on 07.03.1971 and her daughter Ayodhyabai predeceased her in the

year 1945. Plaintiff claims herself to be the daughter of Ayodhyabai

and in that capacity claims to have inherited the property owned by

Chunabai. It is also specifically claimed by Plaintiff that she is the

heir of Chuanbai. It is specifically claimed by the Plaintiff that she

had no knowledge about the award passed against Defendant No. 2 in

the execution proceeding and on 04.04.1078, Defendant No. 2

handed over possession of the suit house to the Plaintiff and since

then she is in possession thereof. It is alleged that Defendants were

obstructing her possession on the basis of award passed against

Defendant No. 2 and hence the suit for perpetual injunction and

declaration came to be filed. During pendency of the said suit,

Plaintiff claims to have lost possession to Defendant No. 4 on the

basis of the auction sale effected in his favour of the concerned

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Court. In view of the said development, prayer for possession is also

sought by amending the plaint.

5. Defendant No. 1/Bank filed written statement raising

objection to the maintainability of the suit for want of notice under

Section 164 of the Societies Act, amongst other objections. This

Defendant pointed out the background in which the suit property

came to be sold in auction for execution of the award passed against

Defendant No. 2. It is contended by this Defendant that Defendant

No. 2 obtained loan from the bank and since he failed to repay the

same, an award came to be passed against him and in execution

thereof, the suit property is sold on 05.12.1974. It is contended that

the name of Defendant No. 2 is entered in the record of Gram

Panchayat and on the basis of same, the proceedings of attachment

of sale of the suit house were initiated. It is specifically alleged by

this Defendant that the suit is in collusion with Defendant No. 2.

6. Defendant No. 4 filed written statement raising objection

with regard to the maintainability of the suit on the ground of

limitation. Apart from adopting objections raised by Defendant Nos.

1 to 3, it is contended that the suit house in the name of deceased

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Chunabai was a Benami transaction and that Defendant No. 2 was

the real owner thereof. It is also claimed by this Defendant that he is

the bonafide purchaser of the suit property for value and as such the

sale cannot be challenged by Plaintiff.

7. Defendant No. 3 filed written statement denying the

contentions of the Plaintiff. This Defendant also claims that

Defendant No.2 had purchased the suit properties on 18.01.1949

and 17.02.1954 from his own income but in the name of Chunabai.

It is also contended that the suit properties were purchased in the

name of Chunabai as the proceedings of recovery of the unpaid loan

were pending against Defendant No. 2. It is specifically claimed that

Chunabai had no source of income for purchase of suit house or

carrying out any construction on the plot.

8. Defendant No. 2 Bansidhar though appeared before the

Trial Court but failed to file written statement. He, however, recorded

consent for amendment sought by the Plaintiff to the plaint vide

Exhibit 61.

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9. Trial Court framed issues vide Exhibit 53. Plaintiff did

not enter the witness box and examined her cousin Harikishan

Maniyar (Exhibt 78), Sk. Chandsaheb (Exhibit 93) and Kishanlal

Purohit (Exhibit 102). On behalf of Defendant No. 1/Bank,

Chandrashekhar Kher (Exhibit 113) was examined. Defendant No. 3

examined himself at Exhibit 117 and Defendant No. 4 led his own

evidence at Exhibit 119. The learned Trial Court by the impugned

judgment and award dated 05.05.1984 decreed the suit. Amongst

other reliefs, it is held that the Plaintiff is the owner of the suit house

and Defendant No. 4 is directed to handover possession thereof to

Plaintiff. This judgment was taken exception in Regular Civil Appeal

no. 218/1984 unsuccessfully. Hence, this Second Appeal.

10. This Appeal came to be admitted on 03.02.1993 on

Ground Nos. 23, 27, 28, 29 and 31 of the Memo of Appeal. This

Court, by order dated 30.05.2025, framed additional substantial

questions of law which read thus :-

(I) Was not the suit liable to be dismissed by drawing adverse inference against the plaintiff for not entering the witness box ?

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(II) Can PW 1- Harikisan Gangabhishan Maniyar be considered to be a competent witness for the plaintiff since his deposition does not appear to be on the basis of his personal knowledge ?

(III) Has not the plaintiff failed to prove her relationship with deceased Chunabai ?

(IV) In view of Section 15 of the Hindu Succession Act, 1956, will the property owned by Chunabai be inherited by defendant no. 2, who is her nephew (son of husband's brother) or by the plaintiff, who appears to be step- daughter of Ayodhyabai, predeceased daughter of Chunabai ?

(V) Have not the learned Courts erred in law in not dismissing the suit by holding that it was filed by the plaintiff as imposter for defendant no. 2 in the light of material on record, particularly conduct of defendant no. 2 in not contesting the suit but appearing in the matter in order to grant no objection for application for amendment of plaint whereby prayer for possession was sought to be incorporated in the plaint ?

(VI) Was the suit liable to be dismissed for want of statutory notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960 ?

sa652.92.odt

11. Learned counsel for Appellant/Defendant No. 4 submits

that the Trial Court as well as the Appellate Court have failed to take

into consideration the facts and circumstances of the case and the

material evidence on record. It is his submission that the suit was

liable to be dismissed for the reason that Plaintiff did not enter the

witness box and has not proved her case. It is submitted that the

issues before the Trial court were as regards to the relationship of

Plaintiff as grand-daughter of Chunabai, and as per the provisions of

Section 50 of the Evidence act, for the purpose of proving

relationship, the Plaintiff ought to have examined the witness who

had knowledge with regard to the factum of Ayodhyabai being

daughter of Chuanbai and Plaintiff being daughter of Ayodhyabai. It

is his submission that the Plaintiff has examined Harikishan Maniyar

who was aged 32 years at the time of his deposition, and in view of

the fact that Ayodhyabai died in the year 1945 itself, this witness was

incompetent to depose in respect of the relationship of Plaintiff to be

daughter of Ayodhyabai. It is his further submission that there is

clear cut admission given by this witness regarding two step sons of

Ayodhyabai and hence Plaintiff cannot be the sole heir of Ayodhyabai

and her such claim ought not to have been accepted by the Trial

Court. To support this submission, he has placed reliance on

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judgment of Supreme Court in case of Dolgobinda Paricha vs. Nimai

Charan Mishra and others, AIR 1959 SC 914.

12. It is his further submission that in any case examination

of Harikishan Maniyar as a constituted attorney would not be

sufficient to prove the case of Plaintiff. It is his submission that as

per the law settled by the Supreme Court in case of Janki Vashdeo

Bhojwani and another vs. Indusind Bank Ltd. And others, (2005) 2

Supreme Court Cases 217, the Constituted Attorney can depose in

respect of the acts which he has done in pursuant to the power given

to him by the Principal. It is his submission that from the evidence

of this witness, it cannot be said that he has deposed anything in

respect of any personal knowledge or act done by him under the

authority of Plaintiff. Thus, it is his submission that there is no

evidence led by the Plaintiff to substantiate her case and as a result

of which the suit must be dismissed.

13. He further argued that the contesting Defendants have

specifically raised the issue with regard to suit house being Benami

property standing in the name of Chunabai but infact purchased by

Defendant No. 2 Bansidhar. In this regard, he drew attention of the

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Court to the fact that at the time of purchase of the suit house, there

were proceedings against Defendant No. 2 for recovery of unpaid loan.

It is his submission that in the backdrop of this fact, when there is

specific averment made in the written statement that the suit house

is a Benami property, the burden would be on the Plaintiff to

substantiate that Chunabai purchased the suit house from her own

income. He drew attention fo the Court to the evidence of Harikishan

Maniyar to indicate that Chunabai had no independent source of

income and in absence thereof, there was absolutely no material to

hold that Chunabai could have purchased the suit house. On the

other hand, according to him, the circumstances clearly indicate that

the property was purchased by Defendant No. 2 as Defendant No. 2

never claimed during the entire proceedings of execution and sale of

the suit house that the property does not belong to him. It is

contended that the record further indicates that the suit house was

mutated in the name of Defendant No. 2 and from the oral evidence

of the witnesses and admission given by them, it is crystal clear that

Defendant No. 2 was in possession of the suit house and that he was

conducting the business of fair price shop therein. It is further

argued that there is reason to believe that the suit is collusive in

nature for the reason that the suit came to be filed only after

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Defendant No. 2 Bansidhar failed in the challenge to the proceeding

to attachment and sale of the suit house in the High Court. It is

submitted that there is evidence on record to indicate that the

Plaintiff had knowledge in respect of the said attachment and

execution proceeding in the year 1971 itself and inspite of the same

since the suit is not filed within limitation as contemplated by Article

54 of the Limitation Act, the Trial Court ought to have held that the

suit is barred by limitation. On the point of Benami transaction, he

drew attention of the Court to the findings recorded by the Appellate

Court which, according to him, indicate that in view of the provisions

of Prohibition of Benami Transaction Act, 1988, it was not open for

the Defendant to take the said plea. Thus, according to him, is not

the correct position of law in view of judgment of the Supreme Court

in case of R. Rajgopal Reddy and others vs. Padmini

Chandrasekharan, (1995) 2 Supreme Court Cases 630. He also

drew attention of the Court to the judgment of the Supreme Court in

case of Jayadayal Poddar and another vs. MST Bibi Hazra and others,

(1974) 1 Supreme Court Cases 3 (Paragraph No. 6) to support his

contention about Benami transaction.

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14. Learned counsel for Appellant/Defendant No. 4 as well as

learned counsel for Bank submitted that the suit filed by the Plaintiff

against the co-operative society itself was not maintainable for want

of notice under Section 164 of the Societies Act. It is their contention

that since there was a challenge to the award passed in favour of the

co-operative society under the Societies Act, it was mandatory for the

Plaintiff to issue notice under Section 164 of the Act. It is also

contended that the suit is not tenable in view of provisions of Section

163. To support this submission, they placed reliance on judgment

of Division Bench in the case of C. F. Marconi vs. Madhav Co-

operative Housing Society Ltd., 1985 SCC OnLine Bom 56. He

further placed reliance on following judgments :-

i) Mohinder Kaur vs. Sant Paul Singh (2019) 9 Supreme Court Cases 358

ii) Devgonda Raygonda Patil vs. Hirabai Devgonda Patil 1991 Mh.L.J. 1470

iii) Rajpal Singh vs. Saroj & another (2022) 15 Supreme Court Cases 260

iv) Padhiyar Prahladji Chenaji vs. Maniben Jagmalbhai & others (2022) 12 Supreme Court Cases 128

15. On these amongst other grounds, answers to the

substantial questions of law are sought in favour of the

Appellant/Defendant No. 4 and dismissal of the suit is asked.

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16. Learned counsel for Respondent No. 1 resisted the said

contention by placing reliance on the observations made by the Trial

Court as well as the Appellate Court. At the outset, it is his

submission that this Court, while exercising powers under Section

100 of the Code of Civil Procedure, cannot cause interference in the

findings of fact even if they are wrong as that by itself will not

constitute the question of law. He further argued that different

reading of evidence is not perversity and as such concurrent findings

of fact recorded by the Courts below need no interference. To support

his submission, he placed reliance on the judgment of the Supreme

Court in case of Damodar Lal vs. Sohan Devi and others, 2016 ALL

SCR 379 and Mithilesh Kumari and another vs. Prem Behari Khare,

AIR 1989 Supreme Court 1247. He argued that the Plaintiff has

proved before the Trial Court that Chunabai was owner of the suit

property on the basis of the registered sale-deed. It is his submission

that since once the title of Chunabai is proved and is rightly accepted

by the Courts below, there is no justification to cause interference in

the impugned judgment. He further canvassed that even if it is

accepted that the name of Defendant No. 2 came to be mutated in the

record of Gram Panchayat, he would not become the owner of the suit

property. To butteress the said submission, he placed reliance on the

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judgment of the Supreme Court in case of Bhimabai Mahadeo

Kambekar vs. Arthur Import And Export Company and others,

(2019) 3 Supreme Court Cases 191 to argue that the mutation

entry either create nor extinguish possession over property. On the

point of limitation, it is argued that the Plaintiff has specifically

pleaded about the Plaintiff having no knowledge of the award as well

as execution proceedings and orders passed therein and as such

after receipt of such knowledge the suit is filed and hence it cannot

be said to be filed beyond the period of limitation. It is further

submission on the objection with regard the maintainability of the

suit for want of notice under Section 164 of the Societies Act that

unless the subject matter of the suit touches to the business of the

society, no such notice becomes mandatory. According to him,

subject matter of the present suit does not touch to the business of

the society and as such notice under Section 164 was not necessary

and objection to that effect has been rightly rejected by the Trial

Court. Thus, it is his submission that overall evidence led before the

Trial Court was duly and rightly taken into consideration by both the

Courts and no interference is required therein for want of perversity.

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17. In order to appreciate the above submissions, it is

necessary to take note of certain facts even at the cost of repetition.

Plaintiff claims herself to be the grand-daughter of Chunabai and

daughter of Ayodhyabai. This contention of Plaintiff has been

specifically denied by the contesting Defendants by filing written

statement. Defendant No. 2 has not filed written statement accepting

the said fact to be true. Thus, the initial burden would be on the

Plaintiff to prove that she is the daughter of Ayodhyabai and grand-

daughter of Chunabai. She is further required to prove that she is

the sole heir of Chunabai. The evidence is led by both sides before

Trial Court. The said evidence is analysed in the light of pleadings of

parties herein after.

LOCUS STANDI OF THE CONSTITUTED ATTORNEY OF THE

PLAINTIFF TO DEPOSE ON HER BEHALF :

18. Plaintiff herself did not enter the witness box. It is

sought to be argued on behalf of the Appellant/Defendant that on

this count alone, the suit must be dismissed. A reference is made to

the judgment of the Supreme Court in case of Janki Vasudeo

Bhojwani (supra) in order to argue that the constituted attorney can

depose only in respect of the acts which are performed by him

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pursuant to the powers given by the Principal. It is relevant note that

here in this case, the witness is not third party but is the cousin and

a member of family of Plaintiff. This fact is not in dispute. He has

candidly deposed about the relationship between the parties and

being the family member it cannot be said that the said facts were

not within his knowledge. Moreover, the cross-examination conducted

by the Defendant indicates that there was no challenge made with

regard to the personal knowledge of this witness or in respect of the

facts deposed by him. Pertinently, when the witness has

categorically stated about the relationship between Chunabai,

Ayodhyabai and Plaintiff Jasodabai, there is not even suggestion in

the cross-examination that his statement is untrue. Apart from this,

from cross-examination of this witness, it is the Defendant who has

brought on record certain facts which clearly show that the witness

has deposed on the basis of his personal information. Thus, it

cannot be said that the witness had no knowledge of the facts to

depose the facts as stated by him on oath before the Trial Court. The

evidence of this witness, therefore, cannot be discarded as sought by

the Appellant. Consequently, it cannot be said that suit deserves to

be dismissed for non-examination of Plaintiff.

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PROOF OF RELATIONSHIP AND SECTION 50 OF EVIDENCE

ACT :

19. As recorded above, it is the case of the Plaintiff that she

is the daughter of Ayodhyabai and grand-daughter of Chuanbai.

Though it is a matter of fact that Ayodhyabai predeceased Chunabai,

the relationship is sought to be proved through PW 1 Harikishan

Maniyar, who is the cousin brother of Plaintiff Jasodabai. Being

member of family, he has deposed about Plaintiff being daughter of

Ayodhyabai. Here it is necessary to mention that no dispute has

been made by the Defendants with regard to the fact that Ayodhyabai

is daughter of Chunabai. In this backdrop, when this witness has

stated about Plaintiff being daughter of Ayodhyabai, there is no cross-

examination of this witness by Defendants denying the said fact.

Moreover, the said fact is also supported by evidence of PW 2 Sk.

Chandsaheb (Exhibit 93). He was aged about 75 years at the time of

his deposition. He claims to have known about fact that Plaintiff is

the daughter of Ayodhyabai and grand-daughter of Chunabai. There

is also no cross examination of this witness on this fact and not even

denial is sought of the said fact deposed. It is argued that the

witness is not able to state the surname of Chunabai or name of her

husband. Once there is no dispute made about statement with

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regard to the relationship of the parties, non disclosure of surname

or name of husband may not become fatal to his testimony. The

place where the suit property is situated is in mofussil area and in

the decade of 70s or prior thereto, if a person does not know the

details of a woman, it is fairly justified. More particularly when there

is no dispute made with regard to the relationship deposed by this

witness, there is no reason to discard his testimony.

20. Section 50 of the Evidence Act permits the Court to draw

inference with regard to the relationship in case of evidence brought

on record on the basis of personal knowledge of any person. Here in

this case, for want of any dispute being made with regard to the oral

evidence led by the Plaintiff, there is no reason to cause interference

in the said evidence recorded by the Trial Court holding that Plaintiff

is the daughter of Ayodhyabai and grand-daughter of Chunabai.

21. Next question which was sought to be argued in

connection with the relationship is that during the cross-examination

it has come on record that Plaintiff has two step brothers. Thus, it is

contended on behalf of the Appellant that the suit itself is not

tenable. The issue involved in this suit is not in respect of shares of

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Plaintiff and her brothers in the suit house. The declaration is

sought that the Plaintiff is the owner of the suit property and that

auction sale pursuant to the award is not binding. It would not be

open for any one else including the Defendants to raise objection to

the tenability of suit on this ground. What is mateiral is that the

Plaintiff represented the estate of deceased in this proceeding. Since

this case is not for partition and determination of shares interse

between Plaintiff and her brothers and since the assets of the

deceased is represented in this suit by the Plaintiff, there was no

impediment in entertaining the suit even if it is accepted that Plaintiff

has two brothers, it does not become a substantial question of law.

In any case, the same is inconsequential for decision of the suit.

Though substantial question of law has been framed with regard to

the inheritance of property of Chunabai by Defendant No. 2 under

Section 15 of Hindu Succession Act, no specific plea has been raised

by the Defendants in the written statement. Hence, without raising

such plea and this being not pure question of law, cannot be agitated

in this appeal. In fact, it was case of Defendants that Defendant No.

2 is owner of suit house and it was benami purchase in the name of

Chunabai.

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TITLE AND POSSESSION OF PLAINTIFF/PREDECESSOR OVER

SUIT PROPERTY :-

22. There is no dispute about the fact that the suit property

was purchased long back in the name of Chunabai. As held above,

she had source of income to purchase the same. Moreover, evidence

on record further indicates that after purchase of land, construction

of house is done by her. Thus, no dispute could be made by

Defendants about she having title and ownership in respect of the

suit property. The contention of contesting Defendants of Defendant

No. 2 being owner thereof rests upon benami transaction and letter

given by Chunabai to Gram Panchayat for recording name of

Defendant No. 2 in the record. Even if this is accepted to have

happened for sake of argument, still the title of property cannot be

transferred in his name. It is also sought to be contended by

Defendants that Defendant No. 2 in possession of suit house and was

running a fair price shop therein. The evidence in this regard

however, indicates that the suit house was used for residential

purpose. The cross-examination of Plaintiff's witness indicates so. It

has come in his cross-examination that after death of Chunabai,

Plantiff used to look after the house. There is suggestion to this

witness that Defendant No. 2 was permitted to reside therein. This

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indicates that possession, if any, of Defendant No. 2 was permissible

in nature and not as owner of suit house. Similarly, evidence of

Shaikh Chandsaheb also corroborates the said evidence. Moreover,

when the suit house was taken in possession by Defendant No. 4, the

same was in possession of Plaintiff. All these facts evident from

record indicate that the findings recorded by both Courts are on due

consideration of material evidence on record.

BENAMI TRANSACTION :

23. Defendant No. 4 has claimed in the written statement

that Defendant No. 2 has purchased the suit property in the name of

Chunabai in order to avoid payment to the creditors. In case of

Jayadayal Poddar (supra) the Supreme Court has held that the

burden to prove the sale as Benami and the apparent purchaser is

not the real owner always rests on the person asserting it to be so. It

is also held therein that there cannot be any absolute formula or acid

test which can be uniformly made applicable in all situations. The

Supreme Court has held therein that the Courts usually are guided

by the circumstances such as source from which the purchase

money came, nature of possession of the property after purchase,

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motive, if any for giving transaction a Benami colour, relationship of

the parties and custody of title deeds and conduct of the parties.

24. Thus, initial burden would be on the Defendants to prove

that the transaction of sale in respect of the suit house is Benami.

Perusal of evidence of the Defendants does not indicate even a single

statement being made in this behalf by the Defendants or their

witness. Thus, it cannot be said that initial burden has been

discharged by Defendants to hold that the suit house is Benami

property of Defendant No. 2 held in the name of Chunabai.

25. As against this, the cross-examination of Plaintiff's

witness clearly indicates that the suit house was not the only

property held by Chunabai. She had other properties. There is

further cross-examination which indicates that Chunabai had two

agricultural lands too. Thus, it cannot be said that Chunabai had no

source of income or properties to purchase the suit house. Thus, for

want of any evidence, the contention of Defendants that suit house is

Benami property and that Defendant No. 2 was ostensible owner

thereof, cannot be accepted.

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26. Section 41 of the Evidence Act deals with the said issue.

It is sought to be contended on behalf of the Defendants that the suit

property was transferred by Chunabai in favour of Defendant No. 2

and his name came to be recorded in the record of the Gram

Panchayat. It is also contended that the suit property was in

possession of Defendant No. 2 and all these facts indicate that he was

the real owner of the suit house. Since Defendant No. 2 had

contested the award and execution of the same till Supreme Court, it

is sought to be canvased that unless he was the owner, he would not

have contested the said claim. Holding so on the basis of such

submissions wouild be mere assumption. It is to be established by

leading evidence that Defendant No. 2 was ostensible owner of the

suit house and in absence thereof it cannot be said so.

LIMITATION :

27. Plaintiff has filed the suit for declaration that the award

passed in favour of Defendant No. 4 and execution of the said award

by auction sale of the suit property is not binding on the Plaintiff.

The said declaration is sought on the ground that the predecessor of

the Plaintiff was owner of the suit property and that Defendant No. 2

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had no right, title and interest therein. It is also suggested in the

cross-examination of Plaintiff's witness that the construction of

house after purchase of the land was done by Chunbai in presence of

her son-in-law. This plea is supported by further averment that

there was no notice to the Plaintiff in respect of the said proceeding of

award and auction sale. It is also claimed on behalf of the Plaintiff

that the suit property was not mortgaged or tendered by way of

security against the loan obtained by Defendant No. 2. In this

backdrop, a specific plea has been raised that the Plaintiff came to

know about the auction sale in March 1978. The Plaintiff has also

sought recovery of possession of the suit property which was lost to

Defendant No. 4 in the year 1982.

28. Plaintiff examined her constituted attorney and also led

evidence of two witnesses. Suffice it to say that Plaintiff led evidence

in order to support her submission with regard to there being no

knowledge of the Plaintiff in respect of the said proceedings. At this

stage, it would be relevant to take note of the evidence led by

Defendant No. 1/Bank. The witness of the Bank Chandrashekar

(Exhibit 113) has clearly admitted that no notice was issued before

attachment of the suit house in newspaper nor by beating of drums.

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There was nothing on record brought by the Defendant in order to

indicate that the Plaintiff had knowledge of the said proceeding and

hence the suit could be held beyond limitation. The suit is for

declaration that the award and the auction sale is not binding upon

the Plaintiff so also for possession of the suit house and having

regard to the facts of the case, it cannot be said that the suit is

barred by limitation and the findings recorded by the Courts below

deserve no interference for want of perversity therein.

SECTIONS 163 AND 164 OF THE SOCIETIES ACT :-

29. Defendant No. 4 has raised objection with regard to the

maintainability of the suit on the ground that notice contemplated by

Section 16 of the Societies Act has not been issued prior to the

institution of the suit. Such defence by itself indicates that

Defendant No. 1 does not challenge the jurisdiction of the Civil Court.

There is no specific challenge raised with regard to the jurisdiction of

the Civil Court to entertain the suit. Thus, though sought to be

argued, there is no substance in the contention of the Defendants

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that the suit is barred by jurisdiction under Section 163 of the

Societies Act.

30. Insofar as notice to the bank is concerned, perusal of

provisions of the Act clearly indicates that the notice would be

contemplated only in cases the subject matter of the suit touches the

business of the co-operative society. In this regard, the Courts below

have clearly held that the subject matter of the suit does not touch

the business of the society and as such notice under Section 164 of

the Societies Act was not required. In the facts of the case, the said

finding is correct.

31. Though the arguments advanced by learned counsel for

Appellant/Defendant No. 4 are attractive and in accordance with the

the law, but same are not supported by the material on record and

hence deserve no acceptance. As discussed above, the concurrent

findings of facts recorded by the Courts below are in consonance with

material on record so also law on this subject and therefore no

perversity could be found therein. The substantial questions of law

framed therefore deserve to be answered in favour of original Plaintiff.

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32. In view of above discussion, Appeal stands dismissed.

Pending Application, if any, does not survive and stands disposed of.

( R. M. JOSHI) Judge

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LATER ON :

1. Learned counsel for Appellants seeks continuation of

interim relief for a period of six weeks.

2. Learned counsel for contesting Respondents opposes the

said request.

3. Since the interim relief is in force since 1992, the same is

extended for a period of six weeks.

( R. M. JOSHI) Judge

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