Madhya Pradesh High Court

Rama Rao vs Om Prakash on 3 May, 2024

Author: Avanindra Kumar Singh

Bench: Avanindra Kumar Singh

                                                      1
                            IN   THE    HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
                                           ON THE 03rd OF MAY, 2024
                                           FIRST APPEAL No. 576 of 2001

                           BETWEEN:-
                           RAMA RAO [SINCE DECEASED THROUGH LEGAL
                           HEIRS]
                           1. LAXMI BAI WD/O LATE RAM RAO MARATHA, R/O
                           PATEL WARD MULTAI, TAHSIL MULTAI, DISTRICT
                           BETUL (MADHYA PRADESH)

                           2. WAMANRAON @ SATISH MARATHA SON OF RAM
                           R A O , R/O PATEL WARD MULTAI, TAHSIL MULTAI,
                           DISTRICT BETUL (MADHYA PRADESH)

                           3.  SANJAY MARATHA SON OF LATE RAM RAO
                           M AR ATHA, R/O PATEL WARD MULTAI, TAHSIL
                           MULTAI, DISTRICT BETUL (MADHYA PRADESH)

                           4.   SUSHEELA W/O VINAYAK GHORPADE, R/O
                           BUDHWARI BAZAR, CHHINDWARA, TAHSIL AND
                           DISTRICT CHHINDWARA (MP)

                           5.  SHAKUN W/O SHYAM WADH, R/O Q.NO.5/745,
                           ORDINANCE FACTORY AMBAJHIRI, NAGPUR.

                           6. PRIMLA W/O HARISH CHANDRA R/O PATEL WARD
                           MULTAI, DISTRICT BETUL (MP)

                           7. URMILA @ UMA W/O SURESH RAO KADU, R/O 38
                           ISHWARNAGAR, NAGPUR (MH)

                           8. NIRMALA W/O RAJENDRA JADHAV R/O VILLAGE &
                           POST FETRI,, KARAMMESHWARA (MAHARASHTRA)

                           9. SARLA W/O NARENDRA GAYAKWAD, R/O NEW
                           GOVT.HOSPITAL COLONY, RAJNANDGAON (CG)

                           10. MAMLA W/O SUNIL SIRSAR, R/O EWS 674,
                           JASHWADI ROAD, RAM NAGAR, KHANDWA, DISTRICT
                           KHANDWA


                                                                           .....APPELLANTS

Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 03-05-2024
19:23:48
                                                        2
                           (BY SHRI SAKET AGRAWAL - ADVOCATE)

                           AND
                           OM PRAKASH, AGED ABOUT 48 YEARS, DURGA DATT
                           SHARMA,   S/O LATE OM PRAKASH, OCCUPATION-
                           BUSINESSMAN, R/O MULTAI, DISTRICT BETUL
                           (MADHYA PRADESH)

                                                                                                   .....RESPONDENTS
                           (BY NONE)
                                 Reserved on : 19.2.2024
                                 Pronounced on: 03.5.2024
                                 -----------------------------------------------------------------------------------
                                 This appeal having been heard and reserved for judgment, coming on

                           for pronouncement this day, JUSTICE AVANINDRA KUMAR SINGH
                           passed the following:
                                                                  JUDGMENT

This first appeal under section 96 of the Code of Civil Procedure has been filed by the appellant/original defendant (Rama Rao) against judgment and decree dated 20.8.2001 passed by Additional District Judge, Multai, District Betul in Civil Suit No.21-A/2000 [Om Prakash Vs. Ramrao], by which, the learned trial Court has dismissed the suit of the respondent/plaintiff for obtaining possession and mesne profit has been dismissed and the counter claim filed by appellant/defendant seeking relief of declaration that he is owner and possessor of the suit property situated in Patel Ward, Multai, District Betul and Will dated 15.12.1983 is not a valid document has also been dismissed.

2. As per paragraph 2 of the judgment of trial Court it is an admitted fact that the suit property is a two storied building which is situated in Patel Ward, Multai whereupon defendant/Ramrao is in possession.

3. This appeal has been filed on the ground that trial Court erred in

dismissing the counter claim of the appellant. It further erred in holding that sale deed purchased in the name of Bhaiyaji in year 1964 was not a 'Benami' transaction for the simple reason that such a plea was not available in view of section 4 of the Benami Transaction Prohibitory Act, 1988. The trial Court failed to see that said Act came into operation from 1988 whereas the property which was purchased in name of Bhaiyaji by the appellant/defendant was of year 1964. The trial Court further failed to see that after death of Bhaiyaji and his widow (Ms.Sumitra Bai) the appellant/defendant was next legal heir heir who performed all necessary rituals after their death. The trial Court after having held that Ms.Sumitra Bai did not execute the Will in favour of respondent, it should have been held that appellant/original defendant had become the owner of the suit house and hence, his should have been decreed. It is further averred that finding of the trial Court on Issue No.9 is erroneous as it did not read the evidence of appellant in proper perspective and jumped on the conclusion which is based on mere surmises and wrong notions of law and, therefore, findings recorded by trial Court in paragraphs 24 to 27 of the impugned judgment are faulty. It is also urged that after dismissing the suit of the respondent/plaintiff the trial Court should have allowed the counter claim. The reasoning in paragraphs 34 to 37 of the impugned judgment are illegal and perverse.

4. The question before this Court is whether in the facts and circumstances of the case the counter claim of the appellant/defendant can be allowed.

5. On perusal of impugned judgment it is seen that trial Court has framed following issues:-

okn iz'u

1- D;k HkS;kth firk dqlukth dk uke ekSth Hkh Fkk\ fu"d"kZ & ugha 2- D;k fookfnr IykV ij HkS;kth us lu 1964&68 esa edku cuk;k vkSj mlesa viuh iRuh lqfe=k ds lkFk jgus yxk\ fu"d"kZ & gkWa 3- D;k izfroknh us mDr edku dk uhps dk Hkkx HkS;kth ls 30@&:- ekgokj ij fdjk;s ls fy;k ,oa lu 1973 rd fdjk;k vnk fd;k\ fu"d"kZ & gkWa 4- D;k izfroknh us HkS;kth dks lu 1973 rd ukSdjh ij j[kk vkSj lu 1974 esa ukSdjh ls fudky fn;k\ fu"d"kZ & ugha 5- D;k lu 1974 ds ckn vkseizdk'k us HkS;k dks lgkjk fn;k ,oa mldh e`R;q ds ckn mldh csok eq-lqfe=k dks lgkjk fn;k\ fu"d"kZ & gkWa 6- D;k HkS;k dh iRuh eq-lqfe=k dh e`R;q fnukad 1-10-94 ds ckn mDr edku ds mijh Hkkx ij izfroknh us dCtk dj fy;k\ fu"d"kZ & gkWa 7 - D;k eq-lqfe=kckbZ us LoLFk o ekufld voLFkk esa vksekizdk'k ds gd esa olh;r fnukad 15-12-83 fu"ikfnr dj fn- 26-12-83 dks mldh jftLVªh dj nh\ fu"d"kZ & ugha 8- D;k eq- lqfe=k dks mDr olh;rukek ,oa edku ls lacaf/kr dkxtkr ekudj vf/koDrk ds ikl j[kk nh Fkh\ fu"d"kZ & ugha

9- D;k cSukeh VªkaftD'ku izksgfc'ku mDr 1988 ds izko/kku ds vuqlkj izfroknh fookfnr IykV ij vius LoRo dk nkok ugha dj ldrk\ fu"d"kZ & gkWa 10- v@D;k fookfnr edku dk ewY; dsoy 87]000@&:i;s gS\ fu"d"kZ & gkWa c@D;k dksVZ Qhl dh n`f"V ls okn dk ewY;kadu lgh ugha gS\ fu"d"kZ & ugha 11- D;k izfroknh e`r HkS;k dk Hkrhtk gS\ fu"d"kZ & ugha 12- D;k izfroknh fookfnr edku ij vius LokfeRo dh ?kks"k.kk dk vqrks"k izkIr djus dk vf/kdkjh gS\ fu"d"kZ & ugha 13- D;k oknh fookfnr edku dk dCtk ,oa vardkyhu ykHk ,d gtkj :i;s ekfld dh nj ls ikus dk vf/kdkjh gS\ fu"d"kZ & ugha 14- lgk;rk ,oa O;;\ fu"d"kZ & fu.kZ; dh dafMdk 60 ds vuqlkj oknh dk nkok ,oa izfroknh dk izfrnkok [kkfjt fd;k x;kA

6. Heard the learned counsel for the appellant and perused the record. Perused the court statements of Omprakash (PW.1), Pramod Kumar (PW.3), Satish Kumar (PW.3), Mohd.Jahuruddin (PW.4), Pyarelal (PW.5), Sukhdev (PW.6), Nathurao (PW.7), Arun Pawar (PW.8), N.R.Mankar (PW.8). Als o considered the statements of defendant witnesses, namely, Ramrao

(DW.1), Nagorao (DW.2), Sagiruddin (DW.3) and Ganpatlal (DW.4). The respondent/plaintiff filed documents Exhibit-P/1 to P/34 and the appellant/defendant exhibited documents from Exhibit-D/1 to D/4.

7. On perusal of the pleadings, oral and documentary evidence available on record this Court is of the considered view that the judgment of the learned trial Court is within the four corners of law. The pleadings and the evidence have been correctly appreciated by the learned trial Court. Regarding ground urged that sale deed purchased in the name of Bhaiyaji was not the 'Benami' transaction, the same is erroneous and untenable because Benami Transaction Act, 1988 would apply as the suit was filed in the year 1997 when Benami Transaction Act was in force although house may have been constructed before year 1988 as held correctly by the trial Court while dealing with Issue No.9 and as discussed in paragraphs 24 to 27 of the impugned judgment which need not be reiterated again. Similarly, regarding ground of appellant/defendant was the next legal heir of Bhaiyaji and Ms.Sumitra after their

death should have been decided in favour of appellant/defendant when suit of the plaintiff was dismissed is not correct due to non-availability of reliable evidence in favour of appellant/defendant who had filed counter claim on perusal of judgment in which every fact and law has been correctly decided by the trial Court in paragraphs 31 to 37 of the judgment and needs no repetition.

8. In view of aforesaid, this Court is of the view that there is no ground on which this appeal by the appellant/defendant can be allowed. Hence, the appeal being sans merit stands dismissed.

(AVANINDRA KUMAR SINGH)

JUDGE RM