THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 7th March, 2022
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SINGLE BENCH: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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RSA No.03 of 2018
Appellant : Ashok Kumar Subba
versus
Respondents : Bimal Kumar Jain & Another
Appeal under Section 100 of the
Code of Civil Procedure, 1908
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Appearance
Mr. Sajal Sharma, Advocate for the Appellant.
Mr. S.S. Hamal, Advocate for the Respondent No.1.
Mr. Vivek Anand Basnett, Advocate (Legal Aid Counsel) for the
Respondent No.2.
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JUDGMENT
Meenakshi Madan Rai, J.
1. In this Regular Second Appeal, the following substantial
questions of law were formulated for determination;
„A. Whether a Court can pass a Decree declaring a party to be the absolute owner of the suit premises and give him right, title and interest over the same by virtue of a registered document which is an Agreement for Sale?
B. Whether the non-filing of a Written Statement by the Defendant No.1 to the Counter-Claim filed by the Defendant No.2 would constitute admission by the Defendant No.1? C. Whether the prayer for declaration of title of the suit property in favour of the Plaintiff is barred by Limitation when the Plaintiff admits that a Sale Deed was executed and presented for registration more than five years before the date of filing of the original Suit?‟
2. At the outset, when the matter was taken up for
hearing by this Court, Learned Counsel for all the parties in mutual
agreement submitted that the only substantial question that was
required for determination herein was "Question No.B" supra. In
light of the said submissions, the discussions and decision of this
Court shall hereafter be confined to the substantial question of law
framed in "B" reflected supra.
RSA No.03 of 2018 2
Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
3.(i) Learned Counsel Mr. Sajal Sharma opening his
arguments for the Appellant submitted that the Appellant on being
impleaded as a party to the Title Suit, as Defendant No.2, on his
prayer, in his Written Statement and Counter-Claim averred that
he was the absolute owner of the land which he had purchased and
constructed a five and a half storeyed building which houses the
suit property as well. That, the Defendant No.1-the Respondent
No.2 (herein) had no independent income as established by the
document, Annexure D2-1, her Affidavit, disclosing that she was a
housewife and was thus not in a position to either purchase land or
construct a building thereon. That, the Respondent No.2 failed to
file any response to the Appellant‟s Counter-Claim and to deny his
averments, she merely filed an Evidence-on-Affidavit in an attempt
to establish that she was the owner of the land and building in
which the suit property was housed. That, her lack of response to
the Counter-Claim by way of written averments tantamounts to
admission of the stand of the Appellant. Consequently, her
Evidence-on-Affidavit in which she asserts that she is the absolute
and rightful owner of the suit property is beyond the ambit of
consideration by this Court. That apart, Learned Counsel sought to
convince this Court that the Appellant for his part was a
businessman with income accruing from his lottery business and
other business sources. The lottery business admittedly, was
registered in the joint names of the Appellant and the Respondent
No.2. Counsel for the Appellant admitted that there is no paper
trail of the income of the Appellant from any source or investments
made by him to establish his financial ability to purchase the land
and building claimed by him as benami property however, that in
the absence of written averments by Respondent No.2 RSA No.03 of 2018 3 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
contradicting his stand, reliefs as sought by him in the Counter-
Claim ought to be granted to him.
(ii) Learned Counsel Mr. S.S. Hamal, for the Respondent
No.1, per contra contended that both the Courts below had come
to a concurrent finding which brooks no interference in
consideration of the failure of the Appellant to fortify his claims of
ownership of the land and the building on it. It is his contention
that the dispute between the Respondent No.2 and the Respondent
No.1 had, in fact, already been settled when the Appellant sought
to be impleaded as a party to the Title Suit at that juncture,
claiming ownership of the suit property, sans documents of
registration. That, it is an admitted fact that the entire building was
registered in the name of the Respondent No.2 as also the land on
which it stood, thereby indicating her ownership. She had sold the
suit premises to Respondent No.1. That, although subsequently, a
claim of the building being benami property was raised by the
Appellant, he failed to prove this aspect in terms of Section 2 of the
Prohibition of Benami Property Transactions Act, 1988, hence his
case requires no consideration.
(iii) Learned Counsel for the Respondent No.2, while
reiterating the submissions made by Learned Counsel for the
Respondent No.1, contended that the claim of benami transaction
raised by the Appellant is not buttressed by law. That, during the
cross-examination of the Appellant, he had admitted that the
Respondent No.2 took cash credit facility of above Rupees One
Crore and that she alone had repaid the Loan taken for purchase of
the land and construction of the building. In the face of such
admission, nothing further remains for determination as the
Appellant‟s source of income has not been divulged. That, to the RSA No.03 of 2018 4 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
contrary, Exhibit D1-1 reveals the registration of a Firm "Golma
Trading Agency" in the name of the Respondent No.2 and
establishes the fact of her independent income. Exhibit D1-3 is the
Trade License in her name and Exhibit D1-4 reveals that she was
running a hotel in the said building, besides income accrued to her
from the lottery business in which she was a 50% stakeholder,
which has been admitted by the Appellant. Relying on the ratio of
the Delhi High Court in Brij Prakash Gupta vs. Ashwini Kumar1,
Learned Counsel contended that where Evidence-on-Affidavit is
filed without pleadings by one party, the objecting party has to put
forth its objections in writing, this was not complied with by the
Appellant. That, although in the Counter-Claim the Appellant avers
that he purchased the entire building, however, strangely he
sought for only a declaration that he is the absolute owner of the
scheduled property which is a flat covering an area of 21 feet x 21
feet. That, as no documents have been filed to establish the
income of the Appellant nor any documents exhibited to indicate
his purchase of the suit property or his ownership of it, the Appeal
deserves a dismissal.
4. The submissions of Learned Counsel for the parties
were heard at length and considered. Pleadings, evidence as also
all documents relied on by the parties and the impugned Judgment
has been perused.
5.(i) The factual background of the dispute is that the
Respondent No.1 (hereinafter referred to as R-1) in this Appeal,
filed a Title Suit for Declaration, Injunction and Consequential
Reliefs valued at Rs.10,000/- (Rupees ten thousand) only, being
Title Suit No.412 of 2013, against the Respondent No.2 herein, as
the Defendant No.1 (hereinafter referred to as R-2) as also the 1 [2020 (209) AIC (Delhi High Court), dated 06.02.2020] RSA No.03 of 2018 5 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
United Bank of India, Gangtok Branch as the Defendant No.2; the
Authorized Officer of the United Bank of India, Gangtok Branch as
the Defendant No.3; and the District Magistrate, East, as the
Defendant No.4.
(ii) Before the Learned Trial Court, R-1 contended that R-2
had constructed a five storeyed RCC building on a plot of land
measuring 0.05 acres in Gangtok. The suit premises measuring 21
feet x 21 feet situate in the building was sold to him, by R-2, for a
consideration value of Rs.19,80,000/- (Rupees nineteen lakhs and
eighty thousand) only. An Agreement for Sale, Exhibit 1, dated
27.03.2008 was drawn up between the R-1 and R-2 and duly
registered before the Office of the Sub Registrar, Gangtok, East
Sikkim, however, the Sale Deed document remained unregistered
due to the File being misplaced in the said Office. From 2008
onwards, R-1 remained in continuous peaceful possession and
enjoyment of the suit premises. On 14.03.2013, he learned that a
Notice was served on R-2 by the Office of the Defendant No.4,
under Section 13(2) of the SARFAESI Act, 2002. Pursuant thereto,
Defendant No.3 served a Notice on R-2 informing her that the
Defendant No.4 had advised them to take physical possession of
the building, which she with her tentants was to vacate by
20.03.2013. R-1 claimed that as he had purchased the suit
premises bona fide, hence the Notice issued under the SARFAESI
Act, 2002, to R-2 was not applicable to him. His prayers in the
Plaint inter alia sought a declaration that the Agreement of Sale,
dated 27.03.2008 is a valid and legal Agreement, binding on the R-
2 and the Appellant impleaded as Defendant No.2, in the Title Suit,
vide an amended Plaint.
RSA No.03 of 2018 6
Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
(iii) The R-2 filed her Written Statement denying and
disputing the claims made by R-1. Her stand was that Exhibit 1
was only an Agreement for Sale and the property in question had
not been sold outright. The entire amount of Rs.19,80,000/-
(Rupees nineteen lakhs and eighty thousand) only, had not been
paid by R-1 to her. She also made a Counter-Claim wherein she
contended that R-1 was a non-Sikkimese and not permitted to
purchase the suit property rendering Exhibit 1 a void document.
That, consequently he was instead required to pay monthly rent at
the rate of Rs.30,000/- (Rupees thirty thousand) only and enter
into a fresh Tenancy Agreement. She inter alia prayed that Exhibit
1 be declared null and void.
(iv) The Appellant, impleaded as Defendant No.2, in the
Title Suit, claimed to have purchased the land and constructed the
building on it with income from his lottery business and was its
owner. He denied the ownership of R-2 over the land and building
and the suit property contending that she had no wherewithal to
purchase the properties. According to him, Exhibit 1 was void as R-
1, a non-Sikkimese, was prohibited from purchasing tribal land, the
community to which the Appellant belonged. That, in the absence
of a registered Sale Deed, R-1 was in illegal occupation of the suit
premises. He also claimed to be the karta of his family thus R-2
could not have alienated the property without his consent. He
thereby sought a Decree declaring him as the absolute owner of
the Scheduled property and recovery of possession thereof with a
Decree for eviction against R-1 from the Scheduled property.
(v) On the basis of the pleadings of the parties, the
following Issues were settled `for determination by the Learned
Trial Court;
RSA No.03 of 2018 7
Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
„1) Whether the Defendant No.1 is the absolute owner of suit property being the purchaser of the same with her own monetary source?; (onus on defendant no.1)
2) Whether the document „agreement for sale‟ dated 27.03.2008 between the plaintiff and defendant no.1 is null and void and against the law of the land?; (onus on defendant no.2)
3) Whether the suit property was purchased by defendant no.2 from his earnings in the Benami of his wife, def. no.1? (onus on defendant no.2);
4) Whether the defendant no.2 has locus standi to file the counter claim against the plaintiff with respect to the suit premises? (onus on defendant no.2)‟
6.(i) Issue No.3 was taken up first for convenience and the
Learned Trial Court observed that the Appellant was unable to
prove that the suit property was purchased by him from his
earnings benami for the R-2. In Issue No.4, the Learned Trial Court
observed that apart from the fact that the Appellant is the husband
of R-2, there were no documents to indicate that he had purchased
the land and constructed the five and a half storeyed RCC building
thereon, this Issue was decided accordingly. In Issue No.1, the
Learned Trial Court opined that the Appellant simply stating that he
had purchased the property in the name of the R-2 would not
suffice to establish his ownership as registered documents existed
in the name of the R-2. For Issue No.2, while discussing Revenue
Order No.1 of 1917, the Learned Trial Court observed that the
Order provides that sale shall not be made of "Bhutia, Lepcha" land
to any other community but did not include „Tribal‟ in it. That, there
was no illegality in Exhibit 1 conferring ownership on the R-1
neither was he barred from purchasing and holding the suit
property, hence, the Issue stood decided against the Appellant.
The Counter-Claim of the Appellant stood dismissed and R-1 was
allowed the reliefs claimed.
(ii) The Appellant herein was also the Appellant before the
Learned First Appellate Court, which agreed with the findings of the
Learned Trial Court in all the Issues and concluded that there was RSA No.03 of 2018 8 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
no infirmity, impropriety and illegality in the Judgment and Decree
rendered by the Learned Trial Court, hence the instant Appeal.
7.(i) Taking up the substantial question of law "B"
formulated for determination herein, in the first instance Order VIII
Rule 6A of the CPC provides for filing of Counter-Claim by the
Defendant, which the Appellant has done in the Title Suit.
However, once this right has been exercised, it is the duty of the
Defendant to produce documents upon which relief is claimed or
relied upon by him as is evident from the provisions of law
extracted hereinbelow. Order VIII Rule 1A(1) of the CPC reads as
under;
"1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.--(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) ......
(3) ......
(4) ......"
Admittedly, the Appellant has filed no supporting documents of
ownership although he has relied on documents Exhibit D2-1 to
Exhibit D2-106, these are largely correspondence pertaining to the
lottery business and accounts thereof which in no way indicate
either his ownership over the disputed property, or his individual
income or the specifics of the income from which the land and
building was purchased by him. The Appellant, on the basis of a
document which was not exhibited (being Annexure D2-1) would
have this Court assume that R-2 had no ostensible means of an
independent income, while in the same breath in his evidence
admitting that the lottery business was registered in their joint
names and income accrued to the business. This would lead to the RSA No.03 of 2018 9 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
inevitable assumption as urged by Learned Counsel for the R-2 that
she had an equal share in the proceeds of the business.
(ii) While addressing the argument of Learned Counsel for
the Appellant that by non-filing of Written Statement by R-2 to the
Counter-Claim of the Appellant, she has admitted the Appellant‟s
averments, this Court is aware of the legal position that a Written
Statement must deal specifically with each allegation of fact in the
Plaint. When a Defendant denies any such fact, he cannot do so
evasively but must respond to the allegation specifically. Should
the denial of fact not be specific but evasive, the fact shall be taken
to be admitted. The same rule applies in the case of an assertion
made in a Counter-Claim and a denial in the Written Statement to
the Counter-Claim as apparent from the provisions of Order VIII
Rule 3 and Order VIII Rule 6G of the CPC. However, I hasten to
add that it is also established law that the Plaintiff or the Defendant
(filing a Counter-Claim) has to establish their own case by a
preponderance of probability and cannot rely on the weaknesses of
the case of the opposite party, his case must stand on its own
strength. The Appellant has failed on this count.
(iii) It is an admitted fact that R-2 chose not to file a
Written Statement to the Counter-Claim of the Appellant and thus
did not comply with the mandate of law. It is also an admitted fact
that the Appellant in support of his Written Statement and Counter-
Claim filed Exhibit D2-1 to Exhibit D2-106. No reference
whatsoever was made to these documents during the course of
arguments before this Court. In any event, the Exhibits reveal that
they are of no assistance to the Appellant even to establish a prima
facie case. Annexure D2-1 being a document which the Appellant
chose not to exhibit, cannot be relied on or considered by this RSA No.03 of 2018 10 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
Court. The Appellant has filed no document to fortify his claim of
purchase and ownership of the building and the land on which it
stood. On this point, the Hon‟ble Supreme Court in Union of India
and Others vs. Vasavi Cooperative Housing Society Limited and Others 2
held inter alia as follows;
"19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited."
(Emphasis supplied)
(iv) It would now be relevant to consider the consequence
of non-filing of defence either by way of Written Statement to a
Plaint or Written Statement to a Counter-Affidavit. In Modula India
vs. Kamakshya Singh Deo3, the Hon‟ble Supreme Court was
considering the nature and scope of the rights available to a
Defendant whose "defence has been struck out" in the particular
context of the West Bengal Tenancy Act, 1956. The consequences
of non-filing of a Written Statement under the CPC was also
considered. It was held inter alia as under;
"19. To us it appears that the basic principle that where a plaintiff comes to the court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the court can only do this by looking at the plaintiff's evidence and pleadings supplemented by such questions as the court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the court under a great handicap in discovering the truth or otherwise of the plaintiff's statements. For after all, the court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiff's averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the Court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiff's case.
20. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. ......"
2
AIR 2014 SC 937 3 AIR 1989 SC 162 RSA No.03 of 2018 11 Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
It was concluded inter alia as follows;
"24. ............the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled:
(a) to cross-examine the plaintiff's witnesses; and
(b) to address argument on the basis of the
plaintiff's case.
We would like to make it clear that the defendant would
not be entitled to lead any evidence of his own nor can his
cross-examination be permitted to travel beyond the very
limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross- examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses.
25. For reasons mentioned above, we allow the appeal and restore the suit before the trial Judge for being proceeded with in the light of the above conclusions. We direct that the costs of this appeal will form part of the costs in the suit and will abide by the result thereof."
(Emphasis supplied)
(v) Although R-2 failed to file her response to the Counter
Claim of the Appellant however her defence was not struck down,
there is no order for proceeding ex parte against her. The ratio
above gives R-2 an indefeasible right to cross-examine the
Appellant which was rightly exercised by her. However, in light of
the limited scope provided to R-2 by the Judgment supra by virtue
of which R-2 would not be entitled to lead any evidence of her own
and is also required to limit her cross-examination to the extent of
pointing out the falsity or weaknesses of the Appellant‟s case, we
may now traverse the cross-examination of the Appellant while he
deposed as Defendant No.2 in the Title Suit. He has admitted in his
cross-examination conducted by Learned Counsel for the R-2 that,
"......It is not a fact that there are no documents to show that I had
purchased the suit property and constructed the building thereon. ....."
Pausing here for a moment, it is pertinent to reiterate that despite
such a positive assertion in his cross-examination he was unable to
garner his claim with documentary evidence. He further stated as
follows;
„......It is true that nowhere in exbt-D2-201 have I mentioned about the reason for my having purchased and registered the suit property in the name of defendant no.1.
RSA No.03 of 2018 12
Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
......It is true that a lottery business run by me in the name and style of "Bindya Agency", the def. no.1 also had partnership of 50%. ......It is true that in exbt-D2-201, I have not mentioned as to from whom the suit land was purchased. ......It is true that in the year 2005 when the loan was availed from the Union Bank of India, the same was availed in the name of Def. no.1. I was a guarantor for the said loan. It is true that the loan was availed for the purpose of converting the RCC structure standing in the suit land into a hotel. ......It is true that the final settlement amount with the bank to avoid the property from being auctioned was not paid by me. It is true that the loan amount amounting to almost 1.10 crores approximately was cleared by the def. no.1. Witness volunteers to say that def. no.1 had cleared the same by selling his property for which he had not given any consent. ......‟ (Emphasis supplied)
While admitting that R-2 paid off the entire loan towards which she
sold his property, the Appellant led no evidence to indicate which
property of his R-2 had sold off to make good the payment of the
loan. He further stated as under,
"......It is true that a hotel by the name of „Golmaheem‟ was registered in the name of def. no.1 as the sole proprietor and the same was being run by her which was subsequently leased out. ......It is not a fact that I had not purchased suit land and constructed a five and half storied building solely out of my own earnings. It is not a fact that the def. no.1 had an independent source of income and the suit land was purchased and subsequently the 5 and a half storied building was constructed by her. ......"
(Emphasis supplied)
Despite these categorical claims by the Appellant during cross-
examination, it is reiterated that he had no document to buttress
his claims of ownership, hence, even if the evidence of R-2 is to be
blindsided by this Court in view of the ratio of the Hon‟ble Supreme
Court above, the Appellant has failed to establish even a prima
facie case. The cross-examination conducted by R-2 has therefore
demolished the stand of the Appellant in totality.
8. We may now relevantly refer to the provisions of the
Benami Transactions (Prohibition) Amendment Act, 2016, in view
of the assertion made by the Appellant in his Evidence-on-Affidavit
that the purchase of the land was made benami by him and the
building constructed by him which also included the property sold
to the R-1. In this context, Section 2(9)(A)(a) and Section
2(9)(A)(b) of the Act reads as follows;
RSA No.03 of 2018 13
Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
"2. Definitions.--.................
..........................................
(9) "benami transaction" means,--
(A) a transaction or an arrangement--
(a) where a property is transferred to, or
is held by, a person, and the consideration
for such property has been provided, or paid
by, another person; and
(b) the property is held for the immediate
or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by--
Section 2(9)(A)(b)(iii) of the Act provides as follows;
"......................
(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;
......"
The Appellant has not drawn the attention of the Learned Courts
below or this Court to any document relied on by him to reveal a
paper trail of his income and the subsequent transactions. In the
absence of any documentary evidence, the mere statement of the
Appellant that he was the purchaser of the property cannot be
treated as gospel truth neither can the property be said to be
benami in view of the nonfulfilment of the afore-extracted
provisions of law.
9. What emanates from the entire discussions above is
that the non-filing of a Written Statement by the R-2 (Defendant
No.1) to the Counter-Claim filed by the Appellant (Defendant No.2)
may be said to constitute an admission but she is permitted to
demolish the case of the Appellant by way of cross-examination by
pointing out the weaknesses or falsity of the Appellant‟s case and
to that extent to defend her case as held in Modula India supra and
which R-2 has done to her advantage herein. The substantial
question of law is determined accordingly.
RSA No.03 of 2018 14
Ashok Kumar Subba vs. Bimal Kumar Jain & Anr.
10. In conclusion, the concurrent findings of the Learned
Trial Court and the Learned First Appellate Court brook no
interference.
11. Appeal dismissed and disposed of.
12. Pending applications, if any, also stand disposed of.
13. No order as to costs.
14. Copy each of this Judgment be sent forthwith to the
Learned First Appellate Court and the Learned Trial Court, for
information.
( Meenakshi Madan Rai ) Judge 07.03.2022
ml Approved for reporting : Yes
