Murlidhar vs Vibhooti Bhushan And Ors
2022 Latest Caselaw 4756 Chatt

                                                             NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                       SA No. 223 of 2013

Murlidhar S/o Hukum Verma Aged About 82 Years R/o Belargondi,
P.C.No. 50, R.I. Circle Chhuria, Tah. And Distt. Rajnandgaon C.G.,
Chhattisgarh

                                                      ---- Appellant

                              Versus

1. Vibhooti Bhushan, S/o Hukum Verma now dead Through Lrs-

A. Vedprakash S/o Vibhooti Bhushan, now dead Through Lrs_

     A.1. Smt. Budhiyarin Bai Wd/o Vedprakash Aged About 33
     Years      R/o village Belargondi, P.C.No. 50, Tahsil and
     District : Rajnandgaon, Chhattisgarh.

     A.2 Raju S/o Ved Prakash, Minor, through guardian- Mother
     Smt. Budhiyarin Bai, Wd/o Vedprakash, R/o village
     Belargondi,   P.C.No.  50,   Tahsil   and    District :
     Rajnandgaon, Chhattisgarh.

     A.3 Ku. Veena D/o Ved Prakash, Minor, through guardian-
     Mother      Smt. Budhiyarin Bai, Wd/o Vedprakash, R/o
     Village Belargondi, P.C.No. 50, Tahsil and District :
     Rajnandgaon, Chhattisgarh.

B.   Bhim Verma S/o Vibhooti Bhushan, Aged About 36 Years
     R/o village Belargondi, Tahsil and District : Rajnandgaon,
     Chhattisgarh.

C.   Devdutta Verma S/o Vibhooti Bhushan Aged About 35 Years
     R/o village Belargondi, Tahsil and District : Rajnandgaon,
     Chhattisgarh.

D.   Bhola Verma S/o Vibhooti Bhushan Aged About 33 Years R/o
     village Belargondi, Tahsil and District : Rajnandgaon,
     Chhattisgarh.

E.   Babloo Verma S/o Vibhooti Bhushan Aged About 34 Years R/o
     village Belargondi, Tahsil and District : Rajnandgaon,
     Chhattisgarh.

F.   Smt. Yuvati Bai Wd/o Vibhooti Bhushan Verma Aged About 45
     Years R/o village Belargondi, Tahsil and District :
     Rajnandgaon, Chhattisgarh.

G.   Saraswati Bai D/o Vibhooti Bhushan Verma Aged About 33
     Years R/o village Belargondi, Tahsil and District:Rajnandgaon,
     Chhattisgarh.

                                                  ---- Respondents
 ___________________________________________________________________
     For Appellants             : Mr. Manoj Paranjpe, Advocate.
     For Respondents            : Not noticed.


             Hon'ble Shri Justice Arvind Singh Chandel

                           Judgment On Board

26/07/2022

  1. Heard on admission and formulation of substantial question of
       law   in   this   second   appeal   preferred   by   the   Appellant
       herein/Plaintiff against the impugned judgment and decree
       dated 05.02.2013 passed by learned Second Additional District
       Judge,     Rajnandgaon(C.G.)   in   Civil   Appeal   No.48A/2012,
       whereby the appeal filed by the Appellant/Plaintiff has been
       dismissed and the judgment and decree passed by learned
       First Civil Judge Class-I, Rajnandgaon in Civil Suit No.65-
       A/2001 has been affirmed, whereby, the Trial Court has
       dismissed the suit of the Appellant herein/Plaintiff.

  2.   Facts

of the case are that the Appellants herein/Plaintiffs has filed a suit before the Trial Court for declaration of title, for permanent injunction and for damages of the suit land against the Respondents/Defendants for restraining the Defendants from interfering in the peaceful possession of the suit property situated at village Belargondi, District Rajnandgaon (C.G.). It was pleaded that Plaintiff and Defendant No.1 are real brothers. The Plaintiff was adopted by one Ghanaram brother of Hukum Singh (the natural father of the Plaintiff and Defendant No.1). The Plaintiff has executed the sale deed dated 29.04.1971 without any consideration amount in respect of the suit land in favour of Defendant No.1. Defendant No.1 also executed a document dated 25.09.1971 to the effect that he would not transfer the suit land or part thereof in any manner. One ceiling case was registered before the competent authority as Case No.138/90'B'1/3 of 1974-75, vide its order dated 09.10.1975, the sale in favour of Defendant No.1 was treated as void. Even after the sale deed dated 29.04.1971, the Plaintiff was in possession of the suit land till 1995-96. The Defendant No.1 in collusion with the Thanedar and his sons namely Alok Mishra and Amit Mishra executed the sale deed of 12.50 acres of the suit land without any consideration amount in favour of Alok Mishra and Amit Mishra on 16.05.1991 and rest of the land was given on lease for two years. After the execution of sale deed dated 16.05.1991, a dispute arose between the Plaintiff, Alok and Amit Mishra and the Civil Suit was filed by Alok and Amit Mishra against the Plaintiff being Civil Suit No.15-A/1995, thereafter, Defendant No.1 with the help of Alok and Amit Mishra tried to dispossessed the peaceful possession of the Plaintiff then the Civil Suit was filed by the Appellant herein/Plaintiff.

3. Defendant No.1 in his written statement denied the claim of the Plaintiff. It was specially pleaded that after the execution of sale deed dated 29.09.1971, Defendant No.1 become the owner of the suit land and subsequently, he sold 12.50 acres of land to Alok and Amit Mishra and he is in possession of rest of the property. He has also denied that no such agreement dated 25.09.1971 was executed by him. It was further pleaded by him that in ceiling case, he was not a party. Hence, it is no binding effect on him. The Plaintiff is not entitled to file the suit under the Benami Transaction Act.

4. The Trial Court after framing the issues, appreciating the evidence and material available on record dismissed the suit filed by the Plaintiff/Appellant. It was held by the Trial Court that the Plaintiff has failed to prove that the agreement dated 25.09.1971 was executed by Defendant No.1 in favour of the Plaintiff. It was further held that sale deed dated 29.04.1971 was duly executed in favour of Defendant No.1 and even it is not shown from the order of the competent authority under the Ceiling Act, that the sale deed dated 29.04.1971 was illegal or void. It was further held by the Trial Court that the Plaintiff has also failed to prove that the sale deed executed by Defendant No.1 in favour of Alok and Amit Mishra was without any consideration amount. It was found by the Trial Court that the Plaintiff was not in possession of the suit property before the execution of lease deed and Defendant No.1 was in possession of the property. It was also held that the suit filed by the Appellant herein/Plaintiff is not maintainable according to the provisions of Benami Transaction Act.

5. Being aggrieved with the judgment and decree passed by the Trial Court, the First Appeal was preferred by the Appellant before the lower First Appellate Court which was also dismissed. Hence, this Second Appeal.

6. Learned Counsel appearing for the Appellant herein/Plaintiff submits that both the Courts below erred in law on facts in holding that the sale deed dated 29.04.1971 executed by the Plaintiff was not a real sale but was only a nominal transaction executed only on account of relationship and did not pass any title to the suit land in favour of Defendant No.1. The Courts below ought to have had that the competent authority under the Agriculture Ceiling Act by its order dated 09.10.1975 declared the sale as void under Section 4 of the Ceiling Act and therefore also no title was passed in favour of Defendant No.1. Both the Courts below also failed to consider that document dated 25.09.1971 was duly executed by Defendant No.1 and possession in the suit property has been duly proved by the Appellant herein/Plaintiff. Therefore, the judgments and decree passed by both the Courts below are erroneous and liable to be set-aside.

7. I have heard learned counsel appearing for the Appellant herein/Plaintiff and went through the record with utmost circumspection.

8. There is no dispute on the point that Appellant/Plaintiff and Respondent No.1/Defendant No.1 were the real brothers. On the basis of evidence adduced by the parties both oral and documentary, it was rightly held by both the Courts below that the sale deed dated 29.04.1971 was duly executed by the Plaintiff in favour of Defendant No.1. It was also rightly held by both the Courts that the Plaintiff has not proved to establish that the agreement dated 25.09.1971 was executed in favour of the Plaintiff by Defendant No.1. From the evidence available on record, both the Courts below also rightly held that the Respondent No.1/Defendant No.1 is in possession of the suit property. The Plaintiff filed the suit on the basis of agreement dated 25.09.1971 and it was the pleading of the Plaintiff that sale deed dated 29.04.1971 was executed without any consideration amount. Meaning thereby, the said transaction was the Benami Transaction. The suit was filed by the Plaintiff in the year 1996, after the commencement of Benami Transaction Act, 1988, therefore, it was rightly held by both the Courts below that the suit preferred by the Appellant herein/Plaintiff is not maintainable.

9. From the above discussion, it is clear that the above concurrent findings of both the Courts below are findings based on material available on record, which is neither perverse nor contrary to the record and the appeal does not involves any substantial question of law.

10. Consequently, I do not find any infirmity in the findings so recorded by the Courts below. It therefore deserves to be and are hereby affirmed.

11. The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).

Sd/-

(Arvind Singh Chandel) Judge Shubham