Madras High Court
Rita Florence vs Sivagami Achi on 22 December, 2006
Equivalent citations: AIR 2007 (NOC) 1320 (MAD.) (MADURAI BENCH)
Author: V. Dhanapalan
Bench: V. Dhanapalan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/12/2006 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN S.A. No.1362 of 1995 1.Rita Florence 2.R. Sugirtha 3.S. Raja 4.S. Shoban Babu Appellants Versus Sivagami Achi Respondent Second Appeal filed against the judgment and decree dated 16.02.1995 made in A.S. No.40 of 1994 on the file of the District Judge, Sivagangai, reversing the judgment and decree dated 07.04.1994 made in O.S. No.26 of 1993 on the file of the Sub-Court, Devakottai. !For appellants ... Mr. R. Sundar Srinivasan ^For respondent ... Mr. S. Natarajan :JUDGMENT
The first plaintiff and the legal heirs of the second plaintiff are the appellants herein. The suit was filed by the plaintiffs for declaration of title and recovery of possession of the suit property and also for recovery of damages for use and occupation besides a sum of Rs.1,000/- being the value of trees fell down by the respondent/defendant.
2. The case of the plaintiffs who are wife and husband respectively is that the suit property was purchased as a vacant site out of the funds of the first plaintiff by means of a registered sale deed dated 12.06.1981, marked as Ex.A.1 in the name of the second plaintiff. By means of an oral family arrangement, the suit property was allotted to the first plaintiff wherein she put up construction out of her funds in 1987 and the respondent/defendant came as a tenant in the rear portion of the said building for a rent of Rs.50/- per month. Till April 1988, rent was paid by the respondent/defendant who made default in rent payment subsequent thereto. Ex.A.7, Notice dated 23.12.1990 was issued by the plaintiffs, but, there was no reply for the said notice and in the meanwhile, the respondent/defendant had encroached the front portion as well. Subsequently, Ex.A.8, yet another notice dated 12.09.1992 was issued by the plaintiffs for which a reply dated 28.09.1992 (Ex.A.9) came from the respondent/defendant stating that out of her funds, she purchased the property in the name of the second plaintiff as a benami. The respondent/defendant had received a sum of Rs.2,000/- from the plaintiffs towards cost of asbestos shed and had also issued a receipt for the said amount thereby admitting that the property belongs to the plaintiffs.
3. The respondent/defendant filed the written statement and according to her, the second plaintiff, as a friend of her husband, used to come to their house and in course of time, developed illicit relationship and in fact, they started living together as husband and wife; when the respondent/defendant wanted to purchase the property out of her funds and jewels, the second plaintiff suggested that if she would do so, her husband would proceed against the same and even loan cannot be obtained in her name and hence, the suit property could be purchased in his name; accordingly, 'A' schedule property was purchased by the defendant in the name of the second plaintiff and house was constructed out of her funds and even house warming ceremony was conducted on 05.12.1982 as per Ex.B.12. Thus, it is the contention of the respondent/defendant that she was not at all a tenant.
4. On the side of the plaintiffs and the defendant, fourteen and thirteen exhibits respectively were marked and four and two witnesses were respectively were examined on their side.
5. The Trial Court, on facts and evidence, found that the plea of benami advanced by the respondent/defendant was not true and also found that the provisions of the Benami Transactions (Prohibition) Act, 1999 (in short "the Act") will be a bar for the said defence. As regards the tenancy, it was the finding of the Trial Court that the second plaintiff had illicit relationship with the respondent/defendant and hence, she was not a tenant. But, finding that the property had been purchased by the second plaintiff and the building has been assessed in the name of the first plaintiff, the Trial Court decreed the suit in respect of declaration of title and recovery of possession and dismissed it as regards payment of rent, mesne profits and damages.
6. On appeal, the appellate court found that the plaintiffs 1 and 2 lived separately; the second plaintiff and the defendant lived together as husband and wife; the suit property was purchased and constructed by the defendant; and the plaintiffs' documents were created for the purpose of the case and in the result, opined that the finding of the Trial Court that the plaintiffs are entitled to declaration of title and recovery of possession cannot be accepted and set aside the judgment and decree of the Trial Court against which, the present Second Appeal.
7. This Court, on 17.10.1995, admitted the Second Appeal on the following substantial questions of law:
"1. Whether the lower appellate court was correct in reversing the judgment and decree of the Trial Court even though Ex.A.1, Sale Deed stands in the name of the husband of the first appellant/first plaintiff, especially when benami transactions are prohibited under the Benami Transactions (Prohibition) Act, 1988?
2. Whether the lower appellate court was correct in stating that the respondent/defendant is the wife of the husband of the first plaintiff/first appellant?"
8. Mr. Sundar Srinivasan, learned counsel for the appellants has contended that there is no variation in the pleadings of the appellants/plaintiffs. He has further contended that the provisions of the Act will apply to the facts of the case on hand. Further, it is his contention that documentary evidence such as Ex.A.1, registered sale deed in favour of the second plaintiff in respect of site for Rs.3,000/-, Ex.A.2, approved plan for construction, Exs.A.3 and A.4, property tax receipt in the name of the first plaintiff, Ex.A.5, property tax demand register and Ex.A.6, lease agreement between the plaintiffs and the defendant would clearly reflect that the respondent/defendant was only a tenant and it was only the first plaintiff who constructed suit building out of her funds. In view of the above, he has contended that the appeal has to be allowed by setting aside the judgment and decree of the first appellate court and confirming the judgment and decree of the Trial Court.
9. Mr. Sundar Srinivasan, to add strength to his argument that the provisions of the Act will be a bar to the case of the respondent/defendant, has relied on a judgment of the Supreme Court reported in (1995) 2 SCC 630 in the case of R. Rajagopal Reddy (dead) by LRs & others vs. Padmini Chandrasekharan (dead) by LRs and the relevant paragraph reads as under:
"So far as Section 4(2) is concerned, all that is provided is that if a suit is filed by a plaintiff who claims to be the owner of the property under the document in his favour and holds the property in his name, once Section 4(2) applies, no defence will be permitted or allowed in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami. The disallowing of such a defence which earlier was available, itself suggests that a new liability or restriction is imposed by Section 4(2) on a pre-existing right of the defendant. Such a provision also cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply retrospectively. So far as such a suit which is covered by the sweep of Section 4(2) is concerned, the prohibition of Section 4(1) cannot apply to it as it is not a claim or action filed by the plaintiff to enforce right in respect of any property held benami. On the contrary, it is a suit, claim or action flowing from the sale deed or title deed in the name of the plaintiff. Even though such a suit might have been filed prior to 19.05.1988, if before the stage of filing of defence by the real owner is reached, Section 4(2) becomes operative from 19.05.1988, then such a defence, as laid down by Section 4(2) will not be allowed to such a defendant. However, that would not mean that Section 4(1) and Section 4(2) only on that score can be treated to be impliedly retrospective so as to cover all the pending litigations in connection with enforcement of such rights of real owners who are parties to benami transactions entered into prior to the coming into operation of the Act and specially Section 4 thereof. It is also pertinent to note that Section 4(2) enjoins that no such defence "shall be allowed" in any claim, suit or action by or on behalf of a person claiming to be the real owner of such property. That is to say no such defence shall be allowed for the first time after coming into operation of Section 4(2). If such a defence is already allowed in a pending suit prior to the coming into operation of Section 4(2) enabling an issue to be raised on such a defence, then the Court is bound to decide the issue arising from such an already allowed defence as at the relevant time when such defence was allowed Section 4(2) was out of the picture. Section 4(2) nowhere uses the words: "No defence based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person, shall be allowed to be raised or continued to be raised in any suit". With respect, it was wrongly assumed by the Division Bench that such an already allowed defence in a pending suit would also get destroyed after coming into operation of Section 4(2). . ."
10. On his argument on the above same point, he has relied on yet another judgment of the Supreme Court reported in (1999) 4 SCC 243 in the case of Pawan Kumar Gupta vs. Rochiram Nagdeo: (paras 22 and 23) "Alternatively, assuming that the finding in the first suit would not operate as res judicata, the contention of the respondent that Ex.P.11 is a void transaction being hit by Section 3(1) of the Benami Act can now be considered. The Trial Court and the first appellate Court concurrently found that it is not a benami transaction but the High Court interfered with the said concurrent finding and held that the transaction is void. Learned Single Judge of the High Court observed that the finding of the first appellate court is contrary to the pleadings of the plaintiff and that the burden of proof had been wrongly placed on the defendant and that the conclusion was based on considerations which are not germane to the issue. According to the learned Single Judge "it is clear from Section 106 of the Evidence Act that it was for the respondent to prove that the money was advanced by him because he had the special knowledge of the transaction between him and his vendor."
The High Court held that the appellant failed to prove that the suit building was purchased by him on payment of sale price.
All the above three premises adverted to by the High Court are unsupportable. The clear pleading of the plaintiff is that he purchased the suit property as per Ex.P.11, sale deed. The burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ex.P.11, sale deed contains the recital that the sale consideration was paid by the plaintiff to Narain Prasad, the transferor. Why should there be a further burden of proof to substantiate that the recitals in the document are true? The party who wants to prove that the recitals are untrue must bear the burden to prove it."
11. In support of his argument that a suit should not be dismissed on the ground of technicality of pleading, he has placed reliance on a judgment of a Single Judge of the Madras High Court reported in 2002 (1) CTC 472 in the case of Angammal & 2 others vs. Komara Gounder & 2 others (para 9):
". . .Also relevant to mention in this context, the ruling of the Supreme Court in Kedar Lal vs. Harilal, AIR 1952 SC 47 where it is held that the Court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side however clumsily or inartistically, the plaint may be worded and that in any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs."
12. On the other hand, Mr. S. Natarajan, learned counsel for the respondent/defendant has contended that the settlement claimed in favour of the first plaintiff is only imaginary and the alleged tenancy has also been rightly disbelieved by the Trial Court. It is his further contention that after satisfying itself that the second plaintiff and the respondent/defendant lived together as husband and wife, the appellate court has correctly held that the plaintiffs have created exhibits for the purpose of the suit and reversed the findings of the Trial Court, thereby dismissing the suit. To prove that the second plaintiff lived with the respondent/defendant as her husband, he has relied on Ex.B.1, letter applying for Birth Certificate for defendant's children, Ex.B.3, voters list and he has placed reliance on Ex.B.12, the invitation for house-warming ceremony to establish the fact that the suit property belongs to the respondent/plaintiff.
13. With regard to his contention that there should not be variation in the pleadings, Mr. Natarajan has placed reliance on:
i. the decision of the Supreme Court reported in AIR 1987 SC 2179 in the case of Vinod Kumar Arora vs. Surjit Kaur (para 11) "However, when the appellant entered the witness box, he gave up the case set out in the written statement and propounded a different case that the hall had been taken on lease only for non-residential purposes. The perceptible manner in which the appellant had shifted his defence has escaped the notice and consideration of the Statutory Authorities. Both the Authorities have failed to bear in mind that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case."
ii. another judgment of the Supreme Court reported in 2005 (4) CTC 55 in the case of Umabai & another vs. Nilkanth Dhondiba Chavan (D) L.Rs. & another: (paras 43 and 44) "Furthermore, the first respondent had raised inconsistent plea in the sense that he had categorically taken a standing that the debt stood discharged. Such a plea was irreconcilable with the plea that he had all along been ready and willing to perform his part of contract. It is in that situation, the decision of this Court in Prem Raj (supra) is attracted wherein it was held that although inconsistent reliefs by a party to the suit is maintainable but it must be shown that each of such pleas is maintainable.
The plea of automatic redemption of mortgage and discharge from debt raised on the part of the respondents herein cannot stand with a plea of readiness and willingness on his part to perform their part of contract."
iii. Yet another judgment reported in AIR 1968 SC 1083 (V 55 C 212) in the case of Mrs. Om Prabha Jain v. Abnash Chand & another in which the Supreme Court has held as under: (para 11) ". . .The ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. Here the pleas were made on two different occasions and contradicted each other. The evidence which was tendered contradicted both the pleas. The source of the information was not attempted to be proved and the witnesses who were brought were found to be thoroughly unreliable. In these circumstances, we do not propose to refer to the evidence in this judgment any more."
iv. One more decision of the Supreme Court reported in AIR 1966 SC 1861 (V53 C 375) in the case of Bhagat Singh & Others v. Jaswant Singh (para 9) "The case more to the point is the Privy Council case relied on by the Courts below viz., AIR 1930 PC 57 (1) where it was held that "where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward."
v. a decision of the Supreme Court reported in (2005) 7 SCC 653 in the case of Devasahayam (dead) by LRs. vs. P. Savithramma and Others (para 29) "It is true as has been submitted by Mr. Gupta that a party to a lis cannot raise pleas which are mutually destructive but ordinarily inconsistent defences can be raised. Respondents 2 to 5 were plaintiffs in respect of their counterclaim and, thus, it was for them to prove their case by pleading such foundational facts as were required to obtain a decree in their favour. The respondents, as noticed hereinbefore, in their written statement categorically stated that the plaintiff had been in possession of the land as a tenant and his possession is that of tenant even to this day and, thus, according to the defendant, the appellant continued to b a tenant. As in the counterclaim such a plea had been taken, the respondents on their own showing raised inconsistent pleas which are said to be mutually destructive."
14. On the point of scope of interference by the High Court under Section 100 of the CPC, Mr. Natarajan has relied on:
i. a Supreme Court decision reported in (2005) 9 SCC 362 in the case of Corporation of City of Bangalore vs. Syed Iqbal Hussain and the relevant paras read as under:(paras 8 and 10) "It is no longer res integra that a second appeal can be admitted for hearing; only in the event the High Court is satisfied that the case involves a substantial question of law, whereupon it shall formulate such a question in terms of sub-section (4) of Section 100 of the Code of Civil Procedure, sub- section(5) of Section 100 mandates that the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such a question. In view of the provisions contained in sub-sections (4) and (5) of Section 100 of the Code of Civil Procedure, there cannot be any doubt whatsoever that a substantial question of law is required to be formulated at the time of the admission of the second appeal and the respondent can be called upon to respond only thereto. Even the respondent is entitled to show that the question so formulated by the High Court does not involve such a question. The hearing of the second appeal, thus, must be confined to the substantial question of law so formulated subject to the exceptions contained in the proviso appended to sub-section (5) of Section 100 of the Code of Civil Procedure."
It is not in dispute that the High Court at the time of admission of the second appeal did not formulate any substantial question of law. Without doing so, it proceeded to hear the learned advocates for the parties and upon noticing the respective pleadings and contentions of the parties purported to have formulated two points which according to it arose for its determination. Having regard to the well-settled principles of law, as noticed hereinbefore, the High Court being statutorily obligated to formulate a substantial question of law at the time of admission of the second appeal, it was legally impermissible for it to formulate such purported questions while determining the issue in the judgment itself in relation whereto the respondent might not have any adequate notice. Furthermore, such points formulated by the High Court which according to it arose for its determination do not appear to be substantial questions of law."
ii. another judgment of the Supreme Court reported in (2005) 9 SCC 232 in the case of Commissioner, Hindu Religious & Charitable Endowments vs. P. Shanmugama & Others wherein it has been held as under: (paras 6, 13 and 14) "At the very outset, we notice that, though the High Court was deciding the second appeal under Section 100 of the Code of Civil Procedure, it failed to act in accordance with the requirements of Section 100. It is trite law that under Section 100 CPC, a High Court can entertain a second appeal only if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of Section 100 provides that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section (5) stipulates that the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such question. The mandatory requirements of this provision of law have been totally flouted by the High Court. The High Court has not indicated in the long judgment as to which was the substantial question of law, if any, considered, nor has it formulated the substantial question of law on which the decision in the second appeal was being given. The High Court has proceeded as if it were deciding a first appeal against a decree in original proceedings. On this ground alone, the judgment is liable to be interfered with.
These were some of the salient findings made by the first appellate court. We have referred to them briefly to indicate that the first appellate court was not concerned with the construction of a document like a Will or sale deed only, but was concerned with appreciation of oral and documentary evidence over the period from 1845 to 1968. Upon appreciation of the evidence before it, the first appellate court recorded a number of findings, which have to be accepted.
In our view, the High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of facts as it has done. Even otherwise, we are satisfied that the findings recorded by the first appellate court were justified and there was no scope for interference therewith."
15. Heard both sides and I have given careful consideration to the arguments of the learned counsel on either side and the citations relied on by them in support of their arguments.
16. Though there are two substantial questions of law involved in this appeal, in my opinion, suffice it to consider the first substantial question of law alone to decide this appeal in view of the fact that the Courts below have categorically held that the second plaintiff had illicit relationship with the respondent/defendant and the latter had come out of her matrimonial home and lived together with the second plaintiff in the suit property and there is no dispute with regard to that and as such, this cannot raise any point for consideration in respect of the suit filed and the relief sought for and it is clear that only to support her contention, the respondent/defendant had taken her case in such a way. Hence, I am not going to traverse on the second substantial question of law as it is not necessary while deciding the plaintiffs' case for declaratory relief and recovery of possession. In that view of the matter, let me proceed to consider the first substantial question of law alone. While doing so, it is of utmost importance to consider the validity of the documents marked on either side in support of their case.
17. The key exhibits relied on by the appellant/plaintiffs are Ex.A.1- registered sale deed in favour of the second plaintiff in respect of suit land, Ex.A.2, plan for construction of building in the said land, Exs.A.3 and A.4- Property tax receipts in the name of the first plaintiff, Ex.A.5-Property tax demand register, Ex.A.6-lease agreement between plaintiffs and defendants, etc.
18. On the other hand, the important exhibits relied on by the respondent/defendant are Ex.B.1, letter given by the second plaintiff to the Development Officer, Pallathur while applying for Birth Certificate for the defendant's two children, Ex.B.2, photocopy of the defendant's ration card, Ex.B.3, voters list, Ex.B.4, electricity connection card in the name of the defendant, etc.
19. As to the validity of exhibits, the lower appellate court, pointing out that Ex.A.1, sale deed in respect of suit land is dated 12.06.1981 and Ex.A.2, sketch for construction of building in the suit land is dated 26.04.1981, has found that since the sketch has been obtained well ahead of purchase of the land, it is created for the purpose of case and this finding of the lower appellate court needs to be looked into in a proper perspective. It is to be noted in this context that Ex.A.2, the sketch is a document obtained from a private engineer and not from any Government authority. Moreover, if the plaintiffs had decided to buy the suit land, they could not have done it overnight and they would have had negotiations and in fact, it has been held categorically by the lower appellate court that a sale agreement was entered into between the second plaintiff and one Arunachalam. Further, they would have definitely made enquiry with the seller, namely, Arunachalam, as to the details of the land and would have passed on the same to the Engineer enabling him to prepare the sketch. Thus, I am of the view that the lower appellate court has gone wrong in disbelieving Ex.A.2, sketch on the ground that it is dated prior to Ex.A.1, sale deed.
20. Regarding Exs.A.3 and A.4, the lower appellate court has opined that when the construction of building was over by 1987, the plaintiffs ought to have produced property tax receipts for the year 1988 and 1989 and since they have not produced the same and instead, they have produced the tax receipts pertaining to 1990 and 1991, it gives room for suspicion. Even assuming that it is the respondent/defendant who had built the suit property, she could have very well marked the property tax receipts as evidence and I find no reason to believe as to what would have prevented her from doing so. In this regard, I am of the view that failure on the part of the plaintiffs to produce tax receipts for the first two years shall not make Exs.A.3 and A.4 invalid.
21. The respondent/defendant, to prove her case that it was she who purchased the suit land and put up construction on it, has deposed that she hails from a well-off Nattukkottai Chettiar family and she had received 6 karats of diamond, 75 sovereigns of gold jewellery and silver and other articles worth Rs.2 lakhs. It is her further deposition that her four brothers are well-off. But, to substantiate her case, she has not let in any evidence nor has she examined her parents or brothers. Though she has relied on Ex.B.12, house warming ceremony invitation wherein the name of the house is mentioned as "Sivagami Illam", the Advocate Commissioner who had inspected the suit property had nowhere mentioned in his report the name of the premises. On the contrary, from a perusal of the materials available on record, it is seen that the first plaintiff was employed as a teacher in a Government school and the second plaintiff was employed in the Revenue Department. Further, the plaintiffs have disposed of their land in Devakottai for a value of Rs.30,000/-. It is the deposition of the first plaintiff that her father had given her a sum of Rs.6,000/- towards purchase of the suit property and the respondent/defendant has not cross-examined the plaintiffs in this regard. From this, it is quite probable that the plaintiffs would have purchased the suit property from and out of their savings and also with the sale proceeds of the land at Devakkottai and the money given by the first plaintiff's father. In such a view of the matter, the finding of the appellate court that the respondent/defendant had enough wherewithal to purchase the suit property cannot be sustained. In view of the above findings, I hold that the suit property was not the one purchased by the respondent/defendant but, by the plaintiffs only out of their funds, as clear from the material evidence adduced.
22. With regard to the plaintiffs' claim for rental arrears, they have relied on Ex.A.6, agreement entered into with the respondent/defendant. But, the Trial Court, having found that the respondent/defendant is a person who used to sign in English, has observed that the signature found in the lease agreement is in Tamil. That apart, the witnesses to the lease agreement have not been examined. Thus, since the plaintiffs failed to prove sufficiently that the respondent/defendant was a tenant, the finding of the Trial Court that the plaintiffs are not entitled to rental arrears in perfectly valid and need not be interfered with.
23. As regards the claim of the plaintiffs for a sum of Rs.1,000/- being damages for the felling down of trees by the respondent/defendant, it has been categorically admitted by the respondent/defendant herself that the trees were cut by her. Also, the Advocate Commissioner, in his report, has stated that the trees were cut. Hence, in this regard also, the finding of the Trial Court that the respondent/plaintiff should pay Rs.1,000/- as damages to the plaintiffs is well-considered and does not warrant interference by this Court.
24. Further, it is the case of the respondent/defendant that apprehending that her husband would interfere with the possession of property if it is bought in her name, she had purchased the suit property in the name of the second plaintiff, as per his suggestion. This cannot be sustained because the suit is of the year 1993 which is subsequent to introduction of the Act i.e. 1988. That apart, the plaintiffs have not pleaded that the first plaintiff has purchased the property in the name of the second plaintiff as a benami. On the other hand, it is only the respondent/defendant who has pleaded that out of her funds, she had purchased the suit property in the name of the second plaintiff as a benami and this is evident from Ex.A.9, notice dated 28.09.1992 wherein the respondent/defendant has stated so. It is also relevant to note in this context that the Trial Court has given a categorical finding that under Section 4(1) of the Act, both the plaintiffs are not entitled to the property. At the same time, it has also held that under Section 4(2) of the Act, the respondent/defendant too is not entitled to claim ownership of the property and this view has been affirmed by the lower appellate court. In view of these, the claim of the respondent/defendant that she had purchased the property in the name of the second plaintiff as a benami has to be brushed aside.
25. In the judgment of the Supreme Court reported in (1999) 4 SCC 243 relied on by the counsel for the appellants (supra), the learned Judge has observed that the finding of the lower appellate court is contrary to the pleadings of the plaintiff and that the burden of proof had been wrongly placed on the defendant and that the conclusion was based on considerations which are not germane to the issue. In the instant case, the plaintiffs had pleaded for declaratory relief as well as recovery of possession and had supported their pleadings by way of evidence, both oral and documentary, based on which the Trial Court has decreed the suit. On the other hand, the defendant has pleaded that the suit property was purchased by her out of her funds in the name of the second plaintiff as a benami which itself is prohibited under the Act and the burden of proof is on the defendant to prove her case which is not done by her by letting in any sort of clinching evidence. In that view, it is clear that she has failed to fulfill the onus of proof on her side and that apart, her inconsistent and contradictory depositions also give room to think whether there was any benami transaction, as such.
26. In view of the discussion made above and considering the submissions made by the counsel on either side and also the decisions relied on by them in support of their arguments, I hold that the lower appellate court is not correct in reversing the judgment and decree of the Trial Court, when admittedly Ex.A.1 Sale Deed stands in the name of the second plaintiff and more particularly, when the plaintiffs have proved their case as pleaded by them based on which the Trial Court has decreed the suit and the first substantial question of law is answered accordingly. As such, the judgment and decree of the lower appellate court is set aside and the judgment and decree of the Trial Court in ordering declaration of title and recovery of possession and also payment of Rs.1,000/- as damages for felling down trees is confirmed.
In fine, the appeal stands allowed. No costs.
To
1. The District Judge, Sivagangai
2. The Sub-Court, Devakottai