Gitti vs Dhiana And Ors.
1967 Latest Caselaw 144 Del

JUDGMENT

I.D. Dua, J.

(1) The only question raised in this seconds appeal centres round the decision on the issue :- "I the plaintiff an owner in possession of the suit property and it is liable to be released from attachment?" On the second issue, on the question of collusive nature of the suit no arguments were addressed in the lower Appellate Court and the Court of first instance had disposed of that issue with the observation that there was no evidence of collusion in the case.

(2) On the issue of ownership and possession also, it is ntoeworthy, the two Courts below have arrived at a concurrent conclusion.

(3) The facts necessary for understanding the controversy may now briefly be stated. Ram Saran Dass appellant who was defendant No. 1 in the Court of the first instance, had obtained a decree against Lak-shami Narain, defendant No. 2 in in that Court In execution of that decree, house No. 923 situated in village Chiragh, Delhi, was attached. Smt. Raj Kali, respondent No. 1 in this Court, instituted the suit giving rise to this appeal for a declaration that the house belonged to her and also claimed an injunction restraining Ram Saran Dass from getting the house sold in execution of his decree. The plaintiff's case was that the house which originally belonged to Rizak Ram, father of Lakshmi Narain,was sold by the Special Assistant Collector for recovery of income-tax arrears of Rizak Ram, and was purchased by the plaintiff for Rs. 1,100.00 in public auction. This case was accepted by the trial Court, which after upholding the said purchase, observed that there was no satisfactory evidence on the record to show as to who had raised the construction on the suit house and whether such constructions were effected before or after the purchase by the plaintiff. The failure of the plaintiff to appear in the witness-box was drawn from this failure because her husband actually appeared and established the purchase by the plaintiff at the public auction. The trial Court as observed earlier, accepting the plaintiffs case, decreed her suit.

(4) On appeal, the learned Additional Senior Subordinate Judge in a fairly well-reasoned judgment agreed with the conclusion of the trial Court. It observed in the appellate judgment that the appellant Ram Saran Dass had nto led any evidence, direct or circumstantial which could indicate that the auction money of Rs. 1,100.00paid by the plaintiff to the Income-tax Department had been supplied to her by Shri Lakshmi Narain or by Shri Rizak Ram. The possession of the house was with the plaintiff and it remained with her after sale. Observing that the burden of proving the banami nature of the transaction was indisputably on the person asserting the same, the Court found that Ram Saran Dass had failed to prove that the purchase of the house in question by the plaintiff was banami and that Lakshmi Narain was the beneficiary. The Court also took into account the past history of the controversy and ntoiced that an objection application under Order 21, Rule 58, Civil Procedure Code, had earlier been made by Smt. Bishan Devi, who, on failure in those proceedings, also instituted a suit under Order 21, Rule 63, But the Court felt that there was clearly a conflict between the titles of Smt. Bishan Devi and of the plaintiff. The fact that Smt. Bishan Devi had also claimed title to the property could nto, on any reasonable hyptohesis, negative the plaintiffs' title in the present proceedings. The appellate decree, as ntoiced earlier, affirmed that of the trial Court.

(5) On second appeal, the learned counsel for the appellant has addressed very elaborate arguments in challenging the conclusions of the two Courts below. In regard to question of banami, it is argued that there is no evidence on the point as to who had raised the construction and that this circumstance vitiates the conclusion of the Court below, It has also been emphasised, inter alia, that as deposed by the respon dent's husband, the possession of the property was nto exclusive with the respondent, but was with the entire family, The property, says the appellant, is valuable and, therefore, it must be held to have been purchased in the name of the respondent as a benamidar. Reference has also been made to Exhibit D.3, a judgment by Shri A. N. Aggarwal, Subordinate Judge, dated 8th December, 1956 which shows that at one time objections to the attachment of the property in question had also been raised by Smt. Bishan Devi. From this also the appellant wants me to conclude that the respondent plaintiff is a benamidar and nto the owner in her own right and the entire family was trying somehow or the toher to save this property from attachment.

(6) The entire argument in connection with the plea of benami nature of the auction sale in question appears to me to be misconcieved. It is ignored that the matter is being argued on second appeal and that the decision on points of fact, however grossly erroneous, cannto be challenged in this Court. The toher basic error in the approach and argument on behalf of the appellant appeals to lie in assuming that in the absence ofl evidence regarding the source of money, the apparent and ostensible title has to give way to the concealed title of some beneficial owner. In my opinion, if there is no evidence on the source of money, then the presumption in favor of apparent or ostensible title is further strengthened and nto that it gets weakened. Absence of evidence does nto cast any shadow on the apparent title. There is under the law an initial presumption in favor of such title and the onus is on the person alleging a transaction to be benemi to clearly establish the plea. The source of money with which the property is purchased coupled with the manner of enjoyment of the property of course constitute valuable test. But merely because a plea of benami is raised does nto by itself, as a matter of law, make it incumbent on the ostensible or apparent title bolder to establish the source of money in support of his title at the risk of losing his title. The plea of benami has as a general rule to be strictly made out and the Court cannto rest its decision in upholding such a plea on mere suspicion. There must be legal ground and legal testimony in support of such plea and in the absence of evidence, the apparent title must prevail. It is no doubt true that when evidence is nto available conclusively establishing or rebutting the allegation, the case has to be dealt with on reasonable probabilities and legal inferences arising from admitted or proved facts. But the finding on the plea of benami is basically 13 one of fact and all this would be all the more so when it is based on reasonable probabilities and inferences from the facts and circumstances of the case. When such a finding is concurrent of the two Courts below, then the appellant's difficulty further increases Ntohing urged by the appellant's ]learned counsel has persuaded me to discover any legal infirmity with the conclusions of the Courts below. The respondent's counsel contends that Exhibit D. 3 is inadmissible in evidence, but even if this document is admitted, it would nto legally negative the plaintiff's claim. In any event, it is only a piece of evidence considered by the Court below and it does nto lay open the conclusion of fact for-re-examination on second appeal. The decisions in Sura Lakshmiah Chetty v, Ktohandmasa Pilia Muhammad Mahbute Ali Khan v, Bharat lndu and P. Krishna Bhatta v. Mundila Ganapathi Bhatta, cited on behalf of the appellant are completely distinguishable and do nto advance his case. The decisions cited on behalf of the respondent reported as Madamanahi Ramappa v. Muthalwu Boijoppa, Ram Singh v. Board of Revenue U. P. and Girdhari Lal v. Krishan Datt to seem do help him.

(7) For the foregoing reasons, this appeal fails and is dismissed, but without any order as to costs