Bombay High Court
Nagorao Narayan Diewane Since Deceased ... vs Narayan Awadutrao Dighe Since Deceased ... on 22 October, 1999
Equivalent citations: 2000(4)BOMCR165, (2000)1BOMLR857, 2000(2)MHLJ273
ORDER P.S. Bramhe, J.
1. This second appeal is preferred by the original defendant in Regular Civil Suit No. 104/74 who lost the battle in trial Court as well as first Appellate Court. The Trial Court by his judgment dated 12th day of November 1979 passed by the 2nd Joint Civil Judge, Junior Division, Yavatmal Shri K.R. Malviya, decreed plaintiff's suit by making a declaration that the suit plot was purchased by defendant Benami for plaintiff and as such plaintiff was owner of the same. The appellant defendant preferred Regular Civil Appeal No. 50/980 challenging the judgment and decree passed on 12-11-1979. The learned Assistant Judge, Yavatmal Shri M.G. Palhade by his judgment dated 28-1-1983 dismissed the appeal confirming the decree passed by trial Court. Thus the appellant defendant has preferred this appeal challenging the judgment and decree passed by the first Appellate Court in R.C.A. No. 50/1980. The appellant defendant is uncle of original plaintiff now the respondent in this appeal. The plaintiff lost his parents in his childhood and admittedly he was brought up and educated by the defendant. Plaintiff joined the military service in the year 1941. The defendant was serving with District Local Board Yavatmal. The subject matter of the dispute is western half portion of plot 1/1 out of sheet No. 51/2 and in the said plot there is block No. 17 measuring 117 or 119 ft. east-west and 60 ft. north south. The western half portion of this block is the suit plot.
2. Plaintiff since after joining military service went on sending Rs. 20/-per month to the defendant out of his pay. In the year 1942 plaintiff was promoted and his pay was increased to Rs. 140/- per month and subsequently since October 1942 he started sending Rs. 70/- per month to the defendant with a view to have some saving. Defendant decided to purchase some open plot for plaintiff out of the amount that was lying with him and defendant and one Waman Abaji jointly purchased the entire plot by registered sale deed dated 26-6-1944 for a consideration of Rs. 1000/-. Defendant disclosed to plaintiff when returned back to India and came to Yavatmal in the month of September that he purchased the open plot for sum of Rs. 500/- alongwith Waman Ajab who also contributed Rs. 500/-. Defendant and said Waman privately divided the said plot leading to eastern half portion to the share of Waman and western half portion to defendant. The name of defendant instead of plaintiff was inserted in the sale deed because that time plaintiff was serving in foreign country and there was no guarantee as to when he was returning back to India. Plaintiff was under the obligation of defendant and for that reason he did not express anything about insertion of the name of the defendant in the sale deed. Defendant, however told the plaintiff that the western half portion of the block i.e. the suit plot would be reconvayed in his name whenever necessary.
3. In due course of time the relations between the wife of plaintiff and wife of defendant became strain while she was living with defendant, with the result that plaintiff informed defendant to reconvey the suit plot in his name and the defendant should build the house on that plot for him out of the amount belonging to him and which was in deposit with the defendant. The defendant by letter dated 20-5-48 (Exhibit 49) informed the plaintiff that he would not misappropriate his amount and would not grab his immovable property. Because of this letter whatever misunderstanding the plaintiff had about the defendant had vanished and so the plaintiff did not insist on getting the plot reconveyed in his name. It is plaintiff's say that even in subsequent letters Exhibit 50, 54, 56, 57, and 58 defendant admitted plaintiff's title to the suit plot. Eastern half portion of block No. 17 out of this plot which was purchased by Waman, was subsequently purchased by plaintiff by sale deed dated 30-4-54. Consequently from 30-4-1954 entire block No. 17 of plot 1/1 came into possession of plaintiff as owner thereof and since then it is in possession of the plaintiff in his own rights.
4. Plaintiff secured loan from Yavatmal Co-operative District Society to construct house on the Eastern half portion of the block. In the year 1957 and 1958 with assistance of defendant plaintiff mortgaged the entire block No. 17 of plot No. 1/1 with that society and that mortgage deed was attested by defendant, the mortgage deed is at Exhibit 199. The defendant constructed a house on the eastern half portion of this block No. 17 out of the amount belonging to plaintiff and which was in deposit with defendant. Plaintiff also sent amount from time to time towards the construction of the building. The entire area of block No. 17 was fenced on all sides by barbed wire fencing by the defendant at the cost of the plaintiff. Defendant never disclosed his title to the suit plot and was never in possession thereof.
5. Defendant never denied plaintiff's title over the suit plot. However, in the month of May 1973 when the plaintiff went to Ahmadnagar for the marriage of his elder son, in his absence, defendant tried to trespass over suit plot and erected north-south fencing in the centre of the entire block No. 17. The matter was reported to the police by plaintiff's watchman. When plaintiff after returning from the marriage enquired with defendant, he told him that the sale deed of the suit plot was in his name and he was entitled to take possession of the same. Plaintiff then removed that fencing. Defendant then never came over the suit plot. In the month of March 1974 plaintiff learnt that defendant was intending to transfer the suit plot and therefore plaintiff gave a public notice in daily news paper Tarun Bharat and also served the defendant with the notice. This act on the part of the defendant of intending to transfer the suit plot roused doubt in the mind of plaintiff and therefore plaintiff was constrained to file the suit against defendant for permanent injunction against the defendant restraining him from interfering with the plaintiff's interest in the suit plot. Plaintiff's claim in the suit was that the suit plot was purchased by defendant in his name Benami. However, defendant later on denounced plaintiff's title over the suit plot.
6. Appellant/defendant resisted plaintiff's claim by his written statement Exhibit 15. He denied that the suit plot was purchased by him Benami in his name for plaintiff and the consideration to purchase the suit plot flowed from plaintiff and that the plot continued to be in possession of plaintiff. It is denied that entire block No. 17 of plot 1/1 was fenced by barbed wire at the cost of plaintiff and in the absence of plaintiff an attempt was made by defendant to erect north-south fencing at the centre of entire block. Defendant also raised objection to the manner in which the suit was valued for the purposes of Court fees and jurisdiction. Defendant contended that plaintiff's father died when plaintiff was aged about 8 or 9 years leaving behind plaintiff's mother Zababai and sister Banabai and one Gunabai who was parental grant mother of plaintiff so also one Radhabai who was sister of father of plaintiff. Defendant had no children. Subsequently after the death of plaintiff's father Avdhutrao he decided to bring up minor plaintiff at his house. He spent about Rs. 200/- for the funeral of Avdhutrao. Plaintiff left education in the year 1940 after he failed in matric and joined a military service in 1941 when he was 21 year old. Defendant was spending amount for Gunabai, Zababai, Radhabai but in the year 1942 when plaintiff was promoted, he told that he -defendant should not spend for them and plaintiff himself undertook to spend for them, directing him to recover the expenses paid for these ladies from him. Prior to this defendant had sent a money order of Rs. 20/- on two occasions to plaintiff who told the plaintiff recover the said amount from him.
6-A. Plaintiff divorced his first wife in the beginning of year 1942 for which defendant had to spent about Rs. 1000/- on behalf of the plaintiff who had agreed to pay that amount to the defendant so and plaintiff managed to send Rs. 70/- per month to the defendant by way of family allotment and till 26-4-1944 plaintiff had sent to defendant sum of Rs. 1450/- out of Rs. 120/- were received by money order and Rs. 1330/- were received by way of family allotment and out of this amount defendant spent Rs. 1340/- as detailed in para 12 of the written statement and thus on or about 26-6-44, about Rs. 400/-belonging to plaintiff were in deposit with defendant. In the year 1944 when plaintiff was serving abroad he never expressed any desire to purchase a plot, so defendant for himself alongwith Waman jointly purchased plot for consideration of Rs. 1000/-. Defendant is in possession of the suit plot in pursuance of purchase by sale deed dated 24-4-44. Defendant contended that plaintiff has absolutely no concern with this transaction.
7. When plaintiff returned to India in the month of September, 1945, he expressed his desire to have a house at Yavatmal and requested defendant to sale the suit plot to him and to build a house for him on the suit plot. Defendant accepted the said proposal on condition that plaintiff should give him 8s. 600/- and thereafter he would execute the sale deed in respect of the suit plot in the name of plaintiff. In this background, the defendant in his letter dated 20-5-1948 (Exhibit 49) mentioned that the suit plot belonged to plaintiff because that time the amount of Rs. 776 belonging to plaintiff was lying in balance with defendant with the result that the defendant was considering suit plot as belonging to the plaintiff in view of the promise made by the defendant to execute the sale deed of the suit plot in favour of plaintiff.
8. Defendant suggested plaintiff that he should purchase eastern half portion of block 17 of plot No. 1/1 from Waman. Plaintiff accepted this suggestion and the defendant purchased the said plot from Waman by registered sale deed dated 30-4-1954 for Rs. 1,000/- for plaintiff.
9. Plaintiff entrusted job of building house for him to the defendant. Accordingly the defendant managed to secure a loan of Rs. 4000/- in the year 1957 and of Rs. 1000/- in the year 1958 by executing a mortgage deed dated 13-2-1957 and the mortgage deed dated 1-3-1958 in favour of the society on behalf of the plaintiff. Defendant contended that he did not recollect as to whether in the mortgage deed the entire plot of block No. 17 was shown as belonging to the plaintiff. But even if it is found to be so, still it cannot be said that any fraud was played while describing the property in the mortgage deeds because although the suit plot was owned and possessed by defendant when, the mortgage deeds were executed the defendant was affirmed on his agreement to executing sale deed of the suit plot in favour of plaintiff for Rs. 600/- and therefore, defendant was treating that the said plot was of the plaintiff.
10. In the month of July 1961 when plaintiff came to Yavatmal after retirement he was not in a position to take the sale deed of the suit plot from the defendant by giving him Rs. 600/-. Market value of the suit plot was also not about Rs. 3400/- in 1961. Therefore, plaintiff requested defendant to cancel the agreement in respect of purchase of the suit plot and in lieu thereof the defendant should treat the amount of Rs. 3400/- which was to be recovered by him from the plaintiff has been satisfied. The defendant accepted this proposal and the plaintiff also got explained all his account from the defendant. Thus in the month of July 1961, the earlier agreement reached between the plaintiff and defendant regarding the sale of the suit plot in favour of plaintiff was mutually cancelled and since then the plaintiff had no concern with the suit plot.
11. In the month of July 1961 defendant fenced upon the suit plot on all its four sides by barbed wire fencing as a result of which the suit plot came to be completely severed from the eastern portion of the plot No. 17. This fencing around the suit plot was as it is till 1973, but some time at the end of September, 1973 the plaintiff started picking up quarrel in respect of the suit plot and with that aim in the mind the plaintiff also tried to break the barbed wire fencing on the north-south-eastern boundary of the suit plot. Thus right from purchase of the suit plot, it continued to be in possession of the defendant and the defendant paid the nazul rent in respect of the same since purchase thereof till 1976. This would go to show that it is the defendant who has been in possession of the suit plot all along since its purchase as a owner thereof. The plaintiff was never in possession of the suit plot, although it was easy for the family for the plaintiff to commit the acts of temporary trespass over the suit plot as the family members of the plaintiff were residing in the house of the eastern half portion of the block. But such temporary acts of trespassing would not clothe the plaintiff with possession over it. It is therefore, contended that the claim made by the plaintiff in respect of the suit plot is false to his knowledge and is liable to be dismissed with compensatory costs. Defendant also contended that the suit as filed by the plaintiff merely for declaration and permanent injunction was bad in law in the absence of the claim of the possession of the same. According to defendant it is true that by 20-5-1948 the amount of Rs. 775/- belonging to the plaintiff was in balance with him and this amount would have been adjusted towards consideration of Rs. 600/- for which the defendant had agreed to sell the suit plot to the plaintiff, but plaintiff had no money to construct the house at that time and therefore, it was the plaintiff who was postponing to get the sale deed executed.
12. In view of the pleadings the lower Court framed as many as 12 issues and on consideration of the evidence oral as well as documentary, lower Court held that plaintiff proved his title to the suit plot and the defendant failed to prove that the title to the suit plot vested in him. The trial Court also found that plaintiff was in possession of the suit plot and as such he was entitled to get a declaration sought for that the plaintiff had proved the possession over the suit plot. Consequently, the trial Court decreed the plaintiff's suit.
13. Defendant challenged the said judgment and decree of the trial Court by preferring appeal bearing Regular Civil Appeal No. 30/80. The lower Appellate Court confirmed the findings of the trial Court. The Appellate Court found that the trial Court did not commit any error in coming to the conclusion that the suit plot was purchased Benami by the defendant in his name for plaintiff. It was found that the trial Court did not commit any error in coming to the conclusion that the plaintiff was entitled to declaration sought for. The lower Appellate Court on his own assessment of evidence found that the suit plot was in possession of the plaintiff and that the transaction of purchase of the plot was Benami transaction, by defendant for plaintiff. That the consideration for purchase of the suit plot had actually flown from the amount of plaintiff which was in balance with the defendant. The oral agreement to sale the suit plot to plaintiff set up by defendant was found to be not proved. Consequently, the lower Appellate Court confirmed the decree and dismissed the appeal.
14. As stated earlier defendant being aggrieved by the decisions of both the lower Courts have come up with an appeal.
15. The appeal was admitted in the High Court on 26th day of August 1987 formulating substantial question of law as under :-
Whether the finding recorded by the first Appellate Court on the Benami nature of the transaction, can bind the appellant since the question as to who was in possession was not taken into consideration by the first Appellate Court and whether that finding can stand ?
16. I have heard Mr. Bapat, learned Counsel for the appellant. Appellant amended the appeal memo and ground (xiii) was added as under :
"That the impugned decree in favour of plaintiff is hit by the Benami Transaction (Prohibition) Act, 1988 and effectuation of the decree is barred."
Mr. Bapat fairly conceded and submitted that this ground is not pressed into service. Mr. Bapat submitted that the plaintiff brought the suit for mere declaration of title without claiming consequential relief of possession. That section 34 of the Specific Reliefs Act, 1963 entitles a person to get a declaratory decree of status or right against any person denying or interested to deny his title to such character or right and the Court may in its discretion may make a decree that he is so entitled and the plaintiff need not in such suit ask for any further relief. But the proviso to this section is to the effect that no Court shall make any such declaration when plaintiff will able to seek further relief than a mere declaration of title omits to do so. In the instant case according to the learned Counsel as the defendant had denied that the plaintiff was in possession of the suit property and asserted possession of the same with him, the Court was not competent to grant the declaratory relief as sought for by the plaintiff. The suit was not maintainable merely for declaration of title without claiming consequential relief of possession. Therefore, the Courts have erred in law in granting a decree for declaration on title. For that he placed reliance on the decisions reported in Vinay Krishna v. Keshav Chandra, and Ram Saran v. Smt. Ganga Devi, .
17. Mr. Bapat next submitted that the suit filed by the plaintiff was barred by limitation. This ground has been adopted by the appellant by seeking permission of the Court by filing Civil Application No. 2917/99. It is contended that plaintiff's suit for declaration is hopelessly barred by time as the same is filed beyond the time prescribed under Article 58 of Limitation Act, 1963. That both the Courts below have failed to follow the mandatory provisions contained in section 3 of the Limitation Act, 1963. He placed reliance on a decision reported in Ashwin Jalal v. Municipal Corpn. of Greater Mumbai, and M/s. Craft Centre v. Koncherry Coir Factories Cherthala, . He pointed out from the evidence on record that in the year 1961 plaintiff came to know that the defendant has denied plaintiff's title over the suit plot. Even in the year 1954 when plaintiff purchased eastern half portion of the plot, he did not ask that time the defendant to convey the title of the suit plot in his name by executing the sale deed so the cause of action arose either in the year 1954 or 1961. The period of limitation prescribed under Article 58 of the Limitation Act of 1963 is of three years when the right to sue first accrues. Under the Limitation Act, 1908 the limitation prescribed under Article 120 was of 6 years from the date of accrual of cause of action. In the instant case the suit has been filed in the year 1974. So it is submitted that the trial Court has committed an error in law in decreeing the suit inasmuch as the suit was hopelessly barred by limitation. That the bar of limitation under section 3(1) of the Limitation Act, 1963 is that subject to the provisions contained in section 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after prescribed period shall be dismissed although limitation has not been set up as a defence. It is submitted therefore by the learned Counsel that it was mandatory for the Court to decide the question of limitation, though the defendant did not raise a plea of bar of limitation.
18. The learned Counsel further submitted that the trial Court has not appreciated the evidence adduced by defendant in correct perspective concerning the oral nature of transaction. That there has been gross misappreciation of the legal evidence by the trial Courts therefore, the appellant has every right under section 100 of Civil Procedure Code to question the finding of fact even though concurrent finding in appeal before the High Court. To substantiate his submission, he placed reliance on the decision of our High Court reported in Shankarlal Ganulal Khandelwal v. Bal Mukund Surajual Bharuka 1999(2) Maharashtra Law Journal Page 569. It is submitted that when there is gross misappreciation of evidence by lower Appellate Court going to the root of the matter, interference by the High Court in second appeal is warranted. He also placed reliance on a decision reported in (A.I.R. 1974 S.C. Page 177), in which the matters required for consideration for adjudication of a Benami sale have been set out. He pointed out from the evidence on record that defendant was having money and he had raised money to bring up plaintiff. So defendant purchasing the suit plot in his name for the consideration flown from him, cannot be ruled out and merely because defendant was having plaintiff's money in balance, no interference can be drawn that consideration for the purchase of the plot was flown from and out of the money of plaintiff, there is nothing on record nor even plaintiff has stated in his evidence that he had intention to purchase the plot in the name of defendant. It is submitted that it was a prerequisite to consider to have a transaction of Benami nature. He also pointed out that in the year 1944 the Court did not consider as to what was the amount of plaintiff lying with defendant. Therefore, it could not be said that the property was purchased by defendant with plaintiff's amount or money. Plaintiff has admitted that there was no communication with defendant that he was intending to purchase the plot for him. That the admission by the defendant in the letter exhibit 49 by no stretch of imagination be said to be admission of nature of Benami transaction, a purchase of suit plot for plaintiff in the name of defendant. The trial Court found that the attestation by the defendant on the mortgage deed as also defendant's mentioning in the letter Exhibit 49 about the suit plot were admissions of plaintiff's title on the suit plot. It is submitted that the trial Court committed an error in saying that these were admissions of the nature of Benami transaction as claimed by plaintiff in the suit. Defendant has set up oral agreement under which he agreed to sell the suit plot to plaintiff as desired by him. Defendant has stated in his evidence about this agreement and subsequent cancellation of the same. So it is submitted by the learned Counsel that the defendant's admission in the letter Exhibit 49 and also by attestation of the mortgage deed admitting plaintiff's ownership over the suit plot can be considered in the background of defendant under the conception that the suit plot was to be sold to plaintiff in pursuance of the oral agreement between them. The trial Court did not accept that. It is also submitted that there is no evidence whether defendant has accepted the Benami nature of transaction admitting plaintiff's title over the suit plot. That on the evidence of record, the defendant has established that all along he was in possession of the suit plot. The trial Court has not given any finding on this issue. In the absence of that the trial Court was wrong in accepting the case of the plaintiff as to the Benami nature of transaction. He therefore, urged that the appeal be allowed and decree passed by the trial Court should be set aside.
19. Heard Mr. Puranik, learned Advocate for the respondent. He submitted that both the lower Courts have given concurrent finding on fact as to the possession of the suit plot with plaintiff as averred by him in the plaint. So also nature of transaction being Benami in the name of defendant, therefore no interference by the Appellate Court in second appeal is called for. Both the Courts have appreciated the evidence in correct perspective and there is nothing to point out that the finding is either erroneous or perverse. That the lower Appellate Court found that the plaintiff was in possession. It was the defendant who tried to erect the fencing on the suit plot in absence of plaintiff. When defendant intended to sell the suit plot plaintiff issued notice on 18-3-1974 published in daily issue of Tarun Bharat, Article - B. He pointed out that in all the letters written by the defendant admittedly, there is no whisper about the oral agreement of sale the suit plot to plaintiff. Admittedly, plaintiff mortgaged the whole plot for raising money to have construction on the eastern half portion of the plot, purchased by him in the year 1954 through defendant. It is significant to note that the defendant attested both these mortgage deeds, knowing that the plaintiff was the owner of the whole plot. Defendant candidly admitted that till 1973 there was no dispute between him and plaintiff over the suit plot, so at no time prior to issuance of notice dated 18-3-74 there was denial or infringement of plaintiff's title over the suit plot by the defendant. The cause of action therefore arose when plaintiff in the year 1974 came to know that defendant was claiming ownership over the suit plot and intended to sale the same. That action of defendant was controverted by the plaintiff by issuing public notice in the news paper Article B. Therefore, plaintiff's suit is well within the limitation. It is also submitted by the learned Counsel that the plaintiff filed suit only for declaration of his title over the suit plot on the assertion that the suit plot was in his possession. Both the Courts below have found that plaintiff was in possession of the suit plot. Therefore, it was not necessary for plaintiff to seek the consequential relief of possession. In this premises the suit for declaration simpliciter was maintainable. He therefor, urged that the appeal being without any merits requires no consideration and the same should be dismissed with costs.
20. We take up the first contention raised by the learned Counsel for the appellant as to maintainability of the suit for declaratory relief simpliciter without claiming the relief of possession. It is submitted that both the Courts below have not recorded a finding on the factum of possession. It is not established that plaintiff was in possession of the property. So, plaintiff's suit for declaration simpliciter was not maintainable. He placed reliance on the decision reported in A.I.R. 1993 S.C. Page 597. Section 34 of the Specific Reliefs Act (47) of 1963 is in pari materia reads as under :
"No person entitled to any legal character or to any right as to any property may institute suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion make therein declaration that he is so entitled and the plaintiff need not in such a suit ask for any further relief."
Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. So the Apex Court in this case found that plaintiff was not in exclusive possession of the property because two other persons and also tenants were in occupation. In such an event the relief of possession ought to have been asked for. Failure to do so, undoubtedly bars the discretion of the Court in granting a decree for declaration. It is also observed that mere prayer in the plaint that such other relief be granted to plaintiff without specific plea for possession, the suit could not be decreed even with reference to the portions of which the plaintiff has been in possession.
21. A reference has also been made to the decision . In this case the same principle is laid down and it is found that when defendant is in possession of the suit properties and the plaintiff in his suit does not seek possession of the properties, but merely claims a declaration that he is owner of the suit property, the suit is not maintainable. The suit is hit by section 42 of the Specific Relief Act, 1877. Mere claim for declaration of title over the property without seeking the relief of possession is not maintainable. In the case before hand the factual position is entirely different. It is true that the plaintiff had claimed simpliciter declaration of his title over the suit property. He did not seek a consequential relief of possession, but it is because plaintiff asserted and claimed that he was in possession of the said property, both the Courts below have found as a finding of fact that the suit property was in possession of plaintiff. Therefore, plaintiff's suit was maintainable merely for the relief of declaration simpliciter. In order words it is not barred by section 34 of Specific Relief Act as contended by the learned Counsel for the appellant.
22. However, Counsel for the appellant submitted that the trial Court has not given a specific finding on the question of possession. That the trial Court has not framed specific issue on the question of possession. The trial Court has not taken into consideration the material evidence on record on the issue of possession. In view of this, the evidence is required to be reappreciated in second appeal and the Appellate Court has to dome to the conclusion that plaintiff failed to prove that he was in possession of the suit property and consequent upon that finding plaintiff's suit for simpliciter declaration is not maintainable.
23. The Counsel for respondent repelled this submissions contending that the trial Court has appreciated the evidence in correct perspective and reached finding of fact as to possession in favour of plaintiff. Therefore, when there is concurrent finding of fact, High Court is not justified in interfering with the finding of fact by reappreciating evidence and arriving at another view possible. He placed reliance on decision reported in Kamleshwar Prasad v. Pradumanju Agarwal, . As against that the learned Counsel for the appellant placed reliance on decision reported in 1992(2) Mh.L.J. Page 569, wherein it is held that when there is misappreciation of evidence by lower Appellate Court, going to the root of the matter, interference by High Court in second appeal is warranted. In this case, the High Court on going through the judgment of lower Appellate Court found that there was a gross misappreciation of evidence which went to the root of the matter and the learned District Judge did not consider the aforesaid rule and documentary evidence in its proper perspective in the manner in which he ought to have been considered. It is in this premises that the High Court has observed that reappreciation of evidence in second appeal is called for. It is pertinent to note that in the case before the High Court there was already substantial question of law involved in the second appeal. The question that fell for consideration before the High Court was as to the true nature of the transaction between the parties. The question was as to whether the transaction recorded in the document was only intended to be acted upon by the parties and that the document was sham and bogus when the party asserted that there was a different transaction altogether and what was recorded in the document was intended to be of no consequence whatsoever. The first Appellate Court, however, did not consider the oral evidence adduced by plaintiff therein considering that it was barred by section 92 of Evidence Act. In second appeal the High Court found that oral evidence is admissible to show that the document executed was never intended to operate as agreement, but that some other agreement altogether not recorded in the document so entered into between parties. Therefore, High Court found that interference by the High Court in second appeal was warranted when there was gross misappreciation of evidence by lower Court arriving at a particular finding of fact.
24. Coming to the decision , it was found that new case or new plea not supported by pleadings or evidence on record cannot be set up or raised in second appeal. In the instant case defendant had already raised plea of possession denying plaintiff's claim for possession. It is found that though the Courts below did not frame specific issue on this question of possession found that on the evidence of record, the suit plot was in possession of the plaintiff. It is submitted by learned Counsel for the appellant that the trial Court while reaching the conclusion that the suit plot was in possession of plaintiff has not considered the evidence on record. It is submitted that the material on record brought by defendant has not been at all considered by the trial Court. Therefore, it is permissible for the appellant to raise the same plea in the second appeal on the question of possession of the suit plot though it is a question of fact. I think that the learned Counsel for the appellant is right in submission, and the High Court is justified in reappreciation of evidence on the question of fact though there is concurrent finding on this point. It is to be seen whether the trial Court has ignored the material evidence in coming to the conclusion that the suit plot was in possession of plaintiff.
25. In Navaneethammal v. Arjuma Chetty, the Apex Court has held that interference with the concurrent finding of the Courts below by the High Court under section 100 C.P.C. must be avoided unless warranted by compelling reasons. In any case the High Court is not expected to reappreciate the evidence just to replace the finding of the lower Courts. In the present case the lower Appellate Court fairly appreciated the evidence and confirmed the conclusion of the trial Court that the suit was not barred by limitation. Even assuming that another view is possible on reappreciation of the same evidence that should not be done by High Court as it cannot be said that the view taken by the first Appellate Court was on no material. For the reasons stated above in the case before hand, I have found that in order to see whether the trial Court has committed gross error in misappreciating the evidence, the issue of finding of fact as to possession has to be reconsidered by the Court in the second appeal. It is needless to say that if it is found that there was no gross misappreciation of evidence by the Courts below this Court will not interfere with the finding of fact even-though, another view is possible on the reappreciation of the same evidence as per the ratio laid down by the Apex Court in this case.
26. Learned Counsel for the respondent submitted that appellant is not permitted to raise a plea of limitation as in the lower Courts no such plea was raised by the defendant. 1 do not think that there is any substance in this contention of the learned Counsel for the respondent. In this connection learned Counsel for the appellant has rightly placed reliance on a decision , and Ajab Enterprises v. Jayant Vagoiles and Chemicals, . Section 34 of Limitation Act, 1963 makes it clear which reads as under :
"3) Bar of limitation sub-section (i) Subject to the provisions contained in section 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence."
27. In the case , the question that fell for consideration was the same, as to bar of limitation to the suit filed by plaintiff. It was urged that defendant has not raised any contention or plea of limitation, High Court observed:
"What section 3 of Limitation Act says is that every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as a defence. It is the duty of plaintiff to convince the Court that his suit is within time. If it is out of time and the plaintiff relies on any acknowledgment or acknowledgments in order to save limitation, he must plead that and prove if denied. The provision in section 3 is absolute and mandatory. The Court can claim n6 choice except to obey it in full. It is the duty of the Court to dismiss a suit which on the face of it is barred by time even at the appellate stage despite the fact that issue was not at all raised."
28. Our High Court in has observed that under section 3 it is the duty of the Court to consider as to whether the suit is barred by limitation or not, even if no such defence is taken by the defendant. Therefore, there cannot be waiver against the provisions of limitation. There also cannot be any estoppel which could be pleaded by the plaintiff successfully.
29. I think that the ratio laid down by our High Court in this case is complete answer to the submissions made by the learned Counsel for the respondents. It is therefore claimed that the appellant is entitled to urge the issue of limitation in the second appeal though in the trial Court defendant has not raised that issue. It is needless to say that as per the mandate of section 3 of the limitation Act of 1963 it was the duty of the Court to see and go into the question of limitation. It was irrespective of the fact that defend-
ant in the suit has not taken the defence of limitation. It is also needless to say that while in second appeal this Court is within its jurisdiction to consider the plea of limitation set up by the appellant and for that purpose it is necessary to appreciate the evidence on record.
30. Before embarking upon the evidence for reappraisal, it is necessary to consider the matters to be considered in determining Benami nature of transaction. As the suit before hand relates to the Benami nature of transaction and more particularly plaintiff has based his claim for title over the suit property on the assumption that defendant purchased the suit plot Benami in his name for plaintiff. It is proper to refer to the decision of Apex Court in A.I.R. 1974 S.C. 177, relied upon by the learned Counsel for the appellant in which the matters to be considered are set out. The observations of the Apex Court are as under :
"It is well settled that the burden of proving that a particular sale is Benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a Benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be Benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures and surmises, as a substitute for proof.
Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any for giving the transaction a Benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar, (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No. 1, viz. the source when the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, in reality for the benefit of another."
It is to be mentioned at this juncture that the learned Counsel for the appellant vehemently contended that the trial Court below having considered the material considerations or factors for determining whether the transaction in the suit as claimed by plaintiff was Benami transaction, the learned Counsel further submitted that the trial Court has ignored the material evidence adduced by defendant for considering whether the transaction in question was a Benami transaction. Therefore, it is from this point of view that reappreciation of evidence on this question of fact is permissible in second appeal. As stated earlier, learned Counsel for respondent has controverted these submissions and it is contended that it is not a case of trial Court ignoring or missing the evidence of the defendant. It is submitted that the trial Court has considered the issue of fact even as to nature of transaction as claimed by plaintiff on the basis of the evidence that has been led by the parties including the defendant. Therefore, it is submitted that the question cannot be gone into by the Appellate Court in second appeal. As observed earlier I have thought it proper to consider the evidence as contended by the learned Counsel for the appellant atleast to see whether the trial Court has omitted to consider that evidence and committed gross error in appreciation of that evidence.
31. It is necessary to note the admitted factual position and it would be useful to appreciate the evidence. Plaintiff and defendant were related with each other. But apart from their relations plaintiff was obliged and under obligation of defendant by fact that defendant had earned and brought up plaintiff who had become orphan because of having lost his parents in his childhood. In the year 1941, plaintiff joined military service and admittedly right from year 1942 to 1948 plaintiff used to send some amount out of his pay or salary to defendant every month and it was on account of the obligation of defendant on the mind of plaintiff and further not by or for any demand by defendant. It is further admitted a fact that defendants used to utilize the amount to meet the expenses as plaintiff desired and some amount used to remain in balance with defendant. Defendant has admitted in his evidence that on 20-5-48 he was holding amount of Rs. 775/- of plaintiff with him in balance. It is admitted that in the year 1942 plaintiff went to abroad in connection with his service probably on account of second world war. Plaintiff was promoted and his salary was increased. Though plaintiff went abroad, defendant continued getting the amount every month out of the pay of plaintiff. It was in the year 1945 plaintiff returned to India. He learnt that defendant purchased property including suit plot by sale deed dated 26-6-44 for Rs. 1000/- (Exh. 47) alongwith one Wamanrao and that property was partitioned in equal share by them and defendant got share of western portion, which is the subject matter of the suit. Plaintiff claims that when he returned to India in the year 1945 defendant told him that the suit plot was purchased by him for plaintiff as desired by him. Then it is admitted that in the year 1954 defendant purchased eastern half portion of the plot for plaintiff for a consideration of Rs. 1000/- by sale deed dated 30-4-54 vide copy marked as Article A. The sale deed in respect of the suit plot, however, continued in the name of defendant though he agreed to convey title to the plaintiff. It is further admitted that for the further period upto year 1961 when plaintiff came to reside at Yavatmal after his retirement, the relations between plaintiff and defendant continued as before. It is a matter of record that the contract of construction of a house on the plot purchased by plaintiff was undertaken by defendant. It is admitted that the plaintiff on his returning to Yavatmal started residing in that house. It is further admitted for construction of the house plaintiff raised money by mortgaging the property including the suit plot and for that executed mortgage deed vide Exhibit 199 and 59 dated 13-2-1957 and 1-3-1958 respectively. It is admitted by the defendant that he had attested both the mortgage deeds for plaintiff. It is admitted that plaintiff mortgaged the entire property including the suit plot and defendant was aware of this fact inasmuch as he had attested both the deeds. It is admitted position that the suit plot is vacant and in the sense there is no construction on it. It is also admitted that the suit plot is fenced by barbed wire alongwith plot purchased by plaintiff in the year 1954. There is however, controversy raised by defendant and according to him in the year 1961 he erected fencing over the suit plot independently. But defendant has not disputed the fact that the entire plot was fenced in the year 1954. The suit plot admittedly stands in the record of right in the name of defendant. About the possession of the suit plot there is controversy between parties. Plaintiff on one hand claimed that the suit plot was in his possession right from day defendant told him that the suit plot was purchased by him in his name for plaintiff. Defendant on the other hand while denying plaintiff's claim and title over the suit plot contended that suit plot was in his possession. It was purchased by him out of funds owned by him and it remained in his exclusive possession till the time possession was disrupted by plaintiff. It is admitted further, that Nazul Rent in respect of the suit plot has been paid by defendant right from the beginning. According to plaintiff the rent was paid by defendant for him. It is further admitted that plaintiff divorced his first wife some where in the year 1947 and got married second time somewhere in the year 1954 and his wife used to stay and reside with defendant as plaintiff was at the place of his duty. It is further matter of record that some disputes cropped up and relations between plaintiff and defendant became strained little, on account of disputes between wife of defendant and wife of plaintiff. It appears that the dispute was because both of them could not get alongwith each other. However, that dispute resulted in strained relations between plaintiff and defendant that is how we find that plaintiff reposed some confidence in defendant for building a house on the plot purchased by him and provided money for that. Defendant accepted that construction of house was raised under his supervision. This factual position is not disputed by defendant in his evidence. This therefore, supports the claim of plaintiff that relations between him and defendant continued as before inspite of bickerings in the families in the year 1947 on account of disputes between wife of plaintiff and wife of defendant. This further strengthens plaintiff's claim that he did not insist defendant to execute the sale deed conferring title over the suit plot to him. Consequently the question of defendant denying plaintiff's title over the suit plot did not arise till the year 1974 when plaintiff learnt that defendant was intending to transfer the suit plot which followed plaintiff's issuance of public notice in the news paper Tarun Bharat Article B. Admittedly, defendant replied that notice vide reply Exhibit 63 asserting his title over the suit plot in pursuance of the sale deed dated 26-6-44 claiming to be sole owner of the plot. It is further admitted that plaintiff by reply Exhibit 64 controverted defendant's claim as to exclusive ownership over the suit plot. So from this it could be said that it was for the first time by reply dated 7-5-74 (Exhibit 63) defendant asserted in his own title to suit plaintiff and thereby denied plaintiff's title over the suit plot.
32. Now we will consider the evidence led by the parties in the background of these admitted facts. There is no dispute that burden of proving that a particular transaction is Benami and the appellant purchaser is not the real owner always rests on the person asserting it to be so. In the case before hand therefore is was for plaintiff to prove that the transaction of sale embodied in the sale deed dated 26-6-44 was Benami and the appellant purchaser i.e. the defendant was not the real owner and plaintiff has to discharge the burden by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish the circumstances. It is also clear in mind that the essence of Benami is an intention of a party or parties concerned; and not often such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be Benami of any part of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.
33. As to be seen in the case before hand plaintiff relies on his own evidence as well as documentary evidence which is mostly comprised of the letters admittedly written by the defendant, so also, the mortgage deeds admittedly executed by plaintiff in which the entire plot including the suit plot has been declared to be owned by plaintiff. Defendant has attested both the mortgage deeds and on the basis of attestation it is sought to be established that defendant accepted the plaintiff's title over the suit plot or atleast he was aware of the declaration in the mortgage deed made by the plaintiff as to his ownership over the entire plot including the suit plot. In his evidence plaintiff has also made a mention of the fact that from time to time regularly as it could be, he used to send amount to defendant right from the time he joined service. Defendant has accepted in his evidence the fact that he received the amount as stated by the plaintiff and further same amount used to remain in balance with him.
34. The learned Counsel for the appellant submitted that no evidence is led by plaintiff to show that the plaintiff had ever intended to purchase suit plot, much less in the name of defendant. I do not think that there is any substance in this submission. It is true that plaintiff has admitted in his evidence that he had no talk with defendant that the suit plot to be purchased for him by the defendant. It has come in the evidence of plaintiff that in the year 1945 when he returned in India, defendant told him that the suit plot was purchased by him for plaintiff. It is clear that the plaintiff for the first time in the year 1945 came to know that the suit plot was purchased by the defendant under sale deed dated 26-6-44. It is on the basis of this the learned Counsel submitted that in view of this position by no stretch of imagination it can be said that parties intended to purchase suit plot in the name of defendant for plaintiff. The learned Counsel for the respondent was right in submission that intention of plaintiff to purchase the suit plot in the name of defendant has to be gathered from the subsequent conduct of the defendant as expressed in the letter Exhibit 49. The trial Court as it must be said rightly, placed reliance on the letter Exhibit 49 written by defendant. In fact lower Court has in his judgment reproduced relevant recitals in the letter exhibit 49. It is very pertinent to note that defendant in his cross examination has admitted said recitals in letter exhibit 49. He has stated that the plot referred in the letter exhibit 49 is the suit plot. The plot referred in the letters upto 1953 was in respect of the suit plot. In the letter Exhibit 49, defendant has stated that he (defendant) had no intention to grab the plaintiff's plot and money. He further informed plaintiff that he should not entertain any doubt about his plot, money and that defendant has no intention to betray the plaintiff in that regard. As stated earlier eastern half portion of the plot was purchased by plaintiff in the year 1954. So there is no doubt in mind that there was no property much less a plot of land owned by plaintiff. Therefore, defendant's reference to the plot in the letter Exhibit 49 so also in subsequent letter Exhibit 52, 53, 54 was in respect of the suit plot only. If defendant claimed to be the sole owner of the suit plot what was the propriety for defendant to refer in the letter Exhibit 49 to the suit plot.
35. Defendant however, in his evidence and consistent with his pleadings in the written statement referred to oral agreement of sale of the suit plot in the year 1948 to plaintiff, stated that when plaintiff asked or desired to purchase the plot, he agreed to sell the suit plot to him for a consideration of Rs. 600/- and the sale deed was to be executed only after plaintiff having paid the amount of Rs. 600/- the consideration for the plot. Defendant has also come up with the theory that ultimately plaintiff failed to pay the amount and requested defendant to put an end to the agreement of sale in the year 1961. It is on the basis of this theory defendant has pleaded and also stated in his evidence that in pursuance of that agreement and promise in the year 1948 he believed that the suit plot belonged to plaintiff and therefore a reference has been made in the letter Exhibit 49 to that effect.
36. The trial Court has considered this plea set up by defendant as an answer to the admission of defendant in the letter Exhibit 49. It is found by the trial Court that the plea raised by the defendant as oral agreement of sale and subsequent cancellation of the same on the request of the plaintiff is totally afterthought and bereft of truth. I think that conclusion arrived at by the trial Court in this respect is correct by appreciation of the oral evidence in correct perspective. It is significant to note that admittedly there was no wishper even about this plea of oral agreement of sale in the correspondence from the side of defendant during the period from 1945 to 1954. What is significant further is the fact that no question was put to plaintiff relating to this oral agreement of sale and cancellation of the sale by plaintiff subsequently. Apart from that it is very clear that even on the basis of this alleged agreement of sale defendant did admit plaintiff's ownership over the suit plot. It is therefore, false that in the letter Exhibit 49 defendant did admit plaintiff's title over the suit plot on the basis of oral agreement of sale. If that is so, then in absence of alleged oral agreement of sale, there is an admission by defendant, and letter Exhibit 49 does speak of the intention of the parties to purchase the suit plot for plaintiff but in the name of the defendant. That is the only inference that could be drawn inescapable by this conduct on the part of defendant in expressing in clear words that he would not betray plaintiff so far as the suit plot is concerned.
37. In addition to this there are circumstances attending the case from which intention to have a Benami transaction of purchase can be gathered. The first amongst such circumstances is the fiduciary relations between the plaintiff and the defendant. Defendant has admitted that even in the year 1954 he purchased eastern half portion of the plot in the name of plaintiff. It is significant to note that this transaction has taken place in the background of already strained relations between the plaintiff and defendant on account of dispute as stated earlier. Thereafter, defendant also raised construction of house on the plot that was purchased in 1954 for plaintiff ofcourse admittedly the amount provided for that was by plaintiff by securing loan placing entire plot by executing mortgage deeds. This indicates that inspite of family bickerings there was no reason for plaintiff to entertain any doubt about intention of defendant to plaintiff's title over the suit plot. As if it was not enough defendant admittedly attested both the mortgage deeds executed by plaintiff wherein he declared his ownership over the entire plot including the suit plot. Now defendant has in his evidence feigned ignorance about the recitals of the mortgage deed. But there is no substance in unawareness on the part of the defendant of the recitals when he has attested the documents and as could be seen from the evidence of defendant it was he who played major role in placing the property as security to raise loan for building house on the eastern portion of the plot. Plaintiff was just a signatory to the document executed by him. So in substance defendant was mindful of the fact that in the mortgage deed plaintiff has exhibited and declared his ownership over the property including the suit plot. At least the defendant has not expressed by words at any time later on in the letters which he wrote to defendant that acceptance of plaintiff's title over the suit plot was in pursuance of the oral agreement of sale and defendant believed plaintiff's title over the suit plot because of the promise given by him. Once the theory of oral agreement and cancellation of the same by defendant is excluded as carrying no substance and merit, it has to be inferred that there was intention on the part of the plaintiff to purchase the suit plot and defendant did purchase the suit plot in his name.
38. We come to the next question as to the amount of consideration for purchase of the plot by defendant. It is submitted by the learned Counsel for the appellant that plaintiff has failed to show that consideration for purchasing the suit plot was flown from the plaintiff. The trial Court has not taken into consideration this aspect of the matter nor decided this question of fact. It is appropriate to consider the evidence on record. It is admitted that plaintiff used to send money to defendant from the year 1941 till 1948. It is admitted by defendant that he did receive amount sent by plaintiff from time to time. It is further admitted by plaintiff in his evidence that in the year 1945 when suit transaction took place he had with him in balance amount of plaintiff. As against that defendant has not shown that he had sufficient amount to purchase the plot though a bare statement has been made in his evidence that suit plot was purchased out of his amount. It is not shown by defendant that he did possess sufficient amount for purchasing the plot.
39. In this connection we may consider defendant's contention in the written statement which goes to show that defendant never intended to purchase plot for himself. It is stated that deceased Wamanrao wanted to purchase the plot. The price of the plot was Rs. 1000/-. But Wamanrao did not have that much amount with him to purchase the plot. The vendor was not prepared to sell half portion of the plot. In such contingency to facilitate deceased Wamanrao to purchase the plot, he purchased the entire plot with Wamanrao and shared half amount of consideration i.e. Rs. 500/-. It is admitted fact that defendant was having with him amount of plaintiff in balance. Defendant did not intend to purchase the plot. Therefore, it is legitimate to infer that defendant purchased the plot alongwith deceased Wamanrao for plaintiff. The transaction of purchase was certainly a benami transaction when much more so when an amount of consideration for the purchase of the plot was flown from the amount of plaintiff lying in balance with defendant so it is in this context that the relations between plaintiff and defendant were such that purchase of the suit plot by defendant was certainly with intention to have a plot for plaintiff. Plaintiff was in fiduciary relations with defendant. He was under obligation of plaintiff for the fact that defendant had brought up plaintiff since his childhood. In addition to that plaintiff was providing money out of this obligation to defendant every month from the date of joining his service. Therefore, there is no hesitation in coming to conclusion that parties intended to have a benami transaction.
40. It is submitted by the learned Counsel for the appellant that the trial Court has not considered the question of possession and to determine a particular transaction to be a Benami transaction the factum of possession is very essential. In other words plaintiff's possession over the suit plot was the material consideration to substantiate the transaction as a Benami transaction. The Counsel for respondent submitted that the trial Court has considered the question of possession though no specific issue was framed in respect of defendant's having contended that the said plot was in his possession and denied plaintiff's possession. It is also submitted by learned Counsel for respondent that there is concurrent finding by the trial Court on the issue of possession and factum of possession of the suit plot. Therefore, High Court is not entitled to go into the question of finding of fact though the other view is possible on reappreciation of evidence by the High Court.
41. It is already pointed out that there is no bar for the High Court to interfere when there is concurrent finding of fact, but there has been gross misappropriation of evidence by the Courts below. The learned Counsel for the appellant has submitted that when there is gross misappropriation of evidence by the trial Court going to the root of question, the High Court is within its jurisdiction to interfere with the findings of fact though concurrent. In view of this submission, I have thought it fit to consider the question of fact as to basis of finding out whether the trial Court has committed mistake grave as it is alleged in appreciation of evidence on the factum of possession. It is again necessary to go into this question because the trial Court has not framed that very much specific issue on this question of fact though a specific plea had been raised by the defendant. Even the first Appellate Court did not go into this question of fact though both the Courts below have given a finding of fact as to possession, holding that plaintiff was in possession of the suit plot.
42. It is admitted that suit plot stands in the name of defendant and obviously because the suit plot was purchased by the sale deed in the name of defendant. The learned Counsel for the appellant Mr. Bapat given much emphasis on this fact that in the record of right the suit plot stands in the name of defendant, there is presumption that the suit plot was in possession of the defendant. To substantiate this submission the learned Counsel relies on the decision reported in (A.I.R. 1963 Bombay 161),. The subject matter of the suit in that case was agricultural land and admittedly in the record of right the property stood in the name of the party claiming to be in possession thereof. So on the basis of the entries in regard to right, referring to section 80(3) of C.P. Land Revenue Act. It was held that the entries can be presumed to be correct until the contrary is shown and it is on the basis of this, the learned Counsel for appellant stressed that there is further presumption on the basis of the entry in the record of right in the name of defendant that the suit plot continued in his possession till the suit was filed by plaintiff. I do not think that it could be said so. The ratio laid down by our High Court in this case cannot be doubted. There is presumptive value as to the entries in the record of right in respect of the agricultural land as to its correctness. It may be true that this presumption can be further extended to the factum of possession so far as agricultural land is concerned, wherein in the record of right there is an entry about the factum of possession with the person in whose possession the land is. In the case before hand, however, it is difficult to raise similar presumption merely because the suit plot stands in the name of the defendant in the record of right. It is admitted fact that the suit plot is not agricultural land. It was purchased for constructing the residential house on it. Therefore, no presumption as to possession of defendant over the suit plot could be raised.
43. The learned Counsel for the respondent in this connection referred to the decision reported in Hashomal Mulchand v. J.S. Bajaj, 1966 Mh.L.J. page 713. The question that was involved in that case was more or less the same as to presumptive value of entries in the record of right. It was held that mere entries in the record of right do not make or unmake title to the property in most cases, therefore, where more important evidence which establishes title of claimant is produced by him, mere absence of the name of the party in the record of rights would not furnish material evidence to doubt correctness of the provision furnished by claimant in support of his title. He also placed reliance on a decision of our High Court ,. In substance the same ratio has been laid down as to the effect of entries in the record of right more particularly mutation entries. It is held that mutation entries do not confer any title. It is significant to note that reliance has been placed on the decision of the Apex Court in , wherein the Apex Court inter alia held thus :
"It is settled law that mutation entries are only for the purpose of enabling the State to collect the land revenue from the person in possession, but it does not title to the land. The title would be derived from an instruments executed by the owner in favour of an alienee as per Stamp Act and registered under Registration Act."
44. It is therefore clear that mere entry, in the record of right in respect of the suit plot in the name of defendant does not confer possession of the suit plot with him. It is also to be noted that the presumption on the basis of entries in the record of right is rebuttable one. The other party can show that the property is in its possession by leading cogent, circumstantial evidence. In the case before hand plaintiff has adduced sufficient evidence to indicate and establish also that the suit plot was in his possession.
45. The submission of the learned Counsel for the appellant that the trial Court did not consider the evidence on record on the question of possession does not seem to be correct. It is pertinent to note that the trial Court has in fact considered the circumstances of defendant's name in the record of right in respect of the suit property. It is found that the entries in the record of right do not make or unmake title to the property. The trial Court has placed reliance on the very decision of our High Court reported in 1996 Mh.L.J. page 713.
46. There are few other circumstances which indicate that the suit plot was in possession of respondent plaintiff. The trial Court has considered all those circumstances. In the first place the trial Court has accepted the fact and claim of the plaintiff that entire plot including the suit plot was fenced by barbed wire fencing in the year 1961 to earmark the suit plot. But this contention of defendant is falsified by material documentary evidence on record. It is already submitted that in the letters Exhibits 49, 50, 52, 53, 54, 55, 56, 57, 58 defendant has admitted that there was reference to the suit plot itself. In a letter dated 4-5-54 Exhibit 54 defendant has informed plaintiff that he was ready to get the fencing erected to the suit plot. In the letter Exhibit 55 defendant informed the plaintiff that he has purchased material for fencing from plaintiff's money. It is undisputed fact that fencing was done convering the entire plot including the suit plot. Inspite of this admitted position defendant has vociferously stated in his evidence that fencing was done by him with his amount and that too in respect of the suit plot only. It has to be said that this claim of defendant is totally false. So undisputed position that comes out is that entire plot was fenced in 1961 at the cost of the plaintiff by defendant. This itself is sufficient to show that the suit plot was in possession of plaintiff.
47. Plaintiff further claimed that in the year 1973 when he was away from Yavatmal, for the marriage of his son, defendant attempted to erect fencing to earmark the suit plot. But that attempt on the part of the defendant was thwarted by the watchman engaged by plaintiff and it was said that it was the defendant's attempt to occupy the suit plot. For that act of transgrees or encroachment or forcible occupation, report was made to the police station. Defendant in his evidence though denied this fact admitted the fact then stating that :
"It is true that in May 1973 the Choukidar of plaintiff had given a report against me of erecting a dividing line (lane) in the centre of the plot 1/ 16 and the enquiry was made by the police from me."
He further admitted that plaintiff broke open the central wire fencing at some places after his return from marriage. Having regard to this evidence to occupy the suit plot forcibly in the month of May 1973, taking advantage of absence of plaintiff in the town, consequently the trial Court found that plaintiff's claim from possession or claim that he is in possession of the suit plot was fortified by defendant's attempt to take forcible possession behind the back of the plaintiff. It certainly indicated that defendant was not in possession of the suit plot. I think that the appreciation of evidence by the trial Court was certainly cogent and legitimate also. In this connection, the learned Counsel for the appellant vehemently submitted that plaintiff ought to have examined the watchman to substantiate the fact that defendant made attempt forcibly to occupy the suit plot by erecting the fencing to circumscribe the suit plot. In the absence of the evidence of watchman it is submitted that no reliance can be placed on the solitary version of plaintiff in this regard. I do not think there is any force in this submission and comment on the appreciation of evidence by lower Court. As stated earlier, defendant has clinchingly admitted the fact that report was made to the police station alleging that defendant had attempted to erect a wire fencing on the suit plot and matter was enquired into. Defendant also admitted that plaintiff after his return from Ahamadnagar uprooted the middle wire fencing that was erected by defendant behind his back. So with this evidence, it has to be said that the claim of plaintiff that the suit plot was in his possession is strengthened and well supported. The trial Court has rightly held that the suit plot was in possession of the plaintiff.
48. Much has been made by the learned Counsel for the appellant of the admission of the plaintiff in his cross-examination when he stated that :
"I claim possession of the suit plot as owner thereof and not by adverse possession."
It is contended that by this admission plaintiff admitted that the suit plot was not in his possession, but he wants possession. It is very difficult to construe the admission in the manner in which the learned Counsel for the appellant has tried to construe. Plaintiff has made it very clear that he claimed possession of the suit plot as a owner thereof and not by adverse possession. The later part is sufficient to indicate that plaintiff was in possession. By this admission the plaintiff did understand to convey that the suit plot was in his possession. He has only stated that his possession of the plot is as a owner and not by adverse possession. That apart plaintiff has clinchingly stated in his first examination rather the first sentence in his first examination shows that he is in possession of the suit plot. He has made it very clear saying that suit plot is owned by me and it is also in my possession. His further sentence is to the effect that whole plot including the suit plot was fenced on his request and the fencing was done for the entire plot including the suit plot. It is needles to say that fencing was done at the cost of plaintiff for the entire plot including the suit plot, is sufficient to show that the suit plot was in possession of plaintiff and further plaintiff had some concern of ownership over the suit plot. If really the suit plot was belonging to defendant, as per the letter of the sale deed there was no propriety for plaintiff to erect fencing on the entire plot including the suit plot. Therefore, according to me as the fencing was done by plaintiff at his cost covering the entire plot including the suit plot it was indicative of the fact that the suit plot was in possession of the plaintiff as a owner thereof.
49. The trial Court has considered evidence on record pertaining to the amounts which defendant received from plaintiff from time to time. The trial Court has reached the conclusion that when defendant purchased the suit plot he had sufficient amount of plaintiff in balance. Even from the admissions given by defendant it is clear that defendant's financial position was not that specific to enable him to purchase the suit plot. But defendant was having sufficient amount of plaintiff lying in balance with him. Therefore, a legitimate inference can be drawn that the suit plot was purchased by the defendant out of the amount of plaintiff.
50. In this connection it is very material to refer to the admission of the defendant in his evidence. He stated that :
'It is true that on 20-5-48 I was holding about Rs. 775/- of plaintiff with me in balance. The witness volunteers :
Inclusive of the amount of Rs. 500/- which 1 given to the friend of plaintiff on loan at his instance. The said amount of Rs. 500/- was given from the amount of Rs. 1190/- and Rs. 2100/- as stated in my W.S. in para 16. I can not give any reason as to why the fact that Rs. 500/- not received, yet shown as balance with me."
Defendant also stated :
"The plaintiff accepted my offer, but I would execute the sale deed only on payment of Rs. 600/-. In the year 1947, no balance of plaintiff's amount was lying with me. Even if the balance would have been more than Rs. 600/- with me in 1947, I would not have transferred the suit plot to plaintiff."
51. I have referred to this admission of the defendant to show that the attitude of the defendant was such that plaintiff should not get the sale deed of the suit plot. This admission also falsifies defendant's claim of oral agreement of sale. This is in the sense if really there had been alleged agreement of sale as contended by defendant, there was no hurdle in the way of defendant to execute the sale deed of the suit plot to the plaintiff when defendant was already having amount more than Rs. 600/- with him belonging to the plaintiff in the year 1947. But curiously enough the defendant on his own unilaterally cancelled the agreement on the pretext that plaintiff was not in a position to pay the amount. So defendant's claim as to oral agreement of sale is totally falsehood by these admissions.
52. The factual position that immerges on the evidence on record was that there was intention of the parties to purchase the suit plot by defendant for plaintiff. The amount of consideration for purchase of plot was flown from the plaintiff inasmuch as defendant utilized the amount on plaintiff for purchasing the plot. The suit plot continued in possession of plaintiff. Defendant at no time claimed possession of the suit plot, though the suit plot stood in his name in the record of right. Defendant did not till the year 1973 made attempt to occupy the suit plot. After the plaintiff purchased the eastern half portion of the plot fencing was done to the entire plot at the cost of plaintiff by the defendant. During the period from 1945 to 1957, defendant exhibited unequivocally in writing through his letters and orally that plaintiff was the owner of the suit plot. Defendant did not do any act to infringe plaintiff's title over the suit plot. By attesting mortgage deeds in which plaintiff declared as title over the suit plot, defendant accepted the same. In the letters written by the defendant admittedly has unequivocally made it clear to plaintiff that he was not going to betray plaintiff by usurping the suit plot. He assured plaintiff he did not intend to grab the suit plot. Thereby admitting plaintiff's title over the suit plot. It is significant to note that defendant exhibited this conduct in respect of the fact that the suit plot was purchased in his name long back in the year 1944. Therefore, all the factors governing the Benami transaction are established and therefore the trial Courts were right in holding that the suit transaction in respect of the suit plot was Benami transaction and that the plaintiff is the owner of the suit plot. The trial Court has rightly come to the conclusion that the suit plot was in possession of plaintiff. Consequently the plaintiff was found entitled to declaration sought for. I have independently reassessed the evidence on record. I have come to the conclusion that there was no error committed by the trial Court in appreciation of evidence, circumstantial as well as oral, much less there was a case of ignoring the evidence on the part of the trial Court as alleged and contended by learned Counsel for the appellant.
53. Now this takes me to consider issue of limitation. In earlier part of the judgment I have already said in view of the provisions contained in section 3 of the Limitation Act of 1963 it is mandatory for the Court to consider the question of limitation despite the fact that the other side has not raised any plea as to bar of limitation. The question is as to when the cause of action arose for plaintiff to file suit. In this connection the factual finding as to plaintiff's possession over the suit plot is very material. The Counsel for the appellant submitted that it was in the year 1954 or 1961 plaintiff came to know that defendant denied his title over the suit plot. So according to him the cause of action accrued in the year 1954 or 1961 and the suit filed by plaintiff in the year 1974 is barred by limitation. The learned Counsel for the respondent countered this submission contending that till the year 1973 the relations between the plaintiff and defendant were cordial. In the sense there was no dispute between them much less over the suit property. Therefore, the suit brought by the plaintiff in the year 1974 was well within the limitation. There cannot be any dispute of the fact that in the intervening period there was some sort of love lost between the plaintiff and defendant and as indicated earlier it was on account of family dispute more particularly the wife of plaintiff and defendant's wife being not getting along with each other, that is reflected in the letters written by defendant and plaintiff has also admitted, thus, that fact. The learned Counsel for the appellant however, gave much stress on plaintiff's admission that till 1961 his relations with the defendant were good. "In the year 1961-I came to know that defendant had a bad eye on the suit plot". "Even in the year 1954 I had no faith in defendant", right from 1952 till today I have no faith in defendant". Making much capital of this admission of plaintiff it is submitted that plaintiff came to know right in the year 1952 and onwards till 1961 that defendant intended to infringe plaintiff's title over the suit plot and that is sufficient to hold that the cause of action arose much earlier to 1961. I do not think that there is any force in this submission. Having regard to other circumstances and admission of the defendant, in the first place defendant has given clinching admission in his first examination itself, saying that from 1961 to 1973 there was no dispute. He further stated that in the year 1973 plaintiff started disputing about ownership of the suit; so the position that comes to this that in the intervening period as it is reflected in the letters, there was certainly dispute between the parties, but then that was not to the extent of defendant denying plaintiff's title over suit plot. Plaintiff did entertain a belief initially that defendant was harbouring an ill intention to grab the suit plot denying the plaintiff's title over it. But plaintiff has stated that because of the recitals in the letters Exhibit 49 all blemish in the mind of the defendant had vanished. It is undisputed a fact that in the subsequent years plaintiff continued getting his work done through defendant including the purchase of half eastern portion of the suit plot. Even plaintiff entrusted defendant to do the work of fencing the entire plot and defendant did it in the year 1961 by purchasing required material for fencing the plot. This lends assurance to the fact that all that ill will that had entered in the mind of defendant had vanished. Plaintiff therefore reposed confidence in defendant as before in the background of this, no occasion arose for defendant to deny the plaintiff's title over the suit plot. So it is very difficult to accept that the cause of action arose in the year 1954 or 1961 when plaintiff came to know that defendant was intending to betray the plaintiff.
54. Article 58 of Limitation Act of 1963 is however, wider in scope and range than the combined articles. Being a residuary article relating to declaratory suit, it will now govern all suits for declaration which were not covered by any other article and covered by Article 120 of Limitation Act of 1908. The language of third column of Article 58 makes it clear that time runs from the date when right to sue first accrues.
55. The Supreme Court has adverted to the question as to what type of threat to plaintiff's title can get time running against him in cases of successive denials in (1960 S.C.J. page 437), and observed :
"The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by plaintiff in the suit. Every threat by party to such right, however, ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compell him to file a suit. Whether particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."
The Supreme Court has thus reduced the question to its proper proportions as being essentially a question of fact not to be measured by any standard yardstick.
56. Therefore, threat to plaintiff's title by defendant in the earlier period prior to 1952 or 1961 on account of which plaintiff entertained doubt in his mind about the dishonest intention on the part of defendant vis-a-vis suit plot was not thought by plaintiff as clear and unequivocal threat to infringe his right or the right asserted by him in respect of the suit property. Subsequent declaration by defendant in his letters written to plaintiff every time referring to suit plot accepting the plaintiff's title over it was rightly accepted by plaintiff as of blemish or illwill or dishonest intention in the mind of defendant was vanished and their cordial relations continued as before till the year 1973, that is why as explained by plaintiff he also did not ask the defendant to execute the sale deed. This explanation of plaintiff plausible when it is found that there was no infringement of plaintiff's title by defendant by any act. Therefore, every threat during the earlier period to plaintiff's right, however, ineffective and innocuous it was, could not be considered to be a clear and unequivocal threat so as to compell plaintiff to file suit till the year 1973. It was in the year 1973 as stated earlier defendant made an attempt to occupy the suit plot to establish his possession over it by erecting fencing around the suit plot. This attempt on the part of the defendant was thwarted by the interruption by the watchman of plaintiff. It is also significant to note that defendant made this attempt very clandestinely in the sense knowing that plaintiff was away from the town. Then plaintiff released that all silence till 1973 on the part of defendant was not innocuous and intention to infringe plaintiff's right over the suit plot was hidden or persisting in the mind of defendant. The attempt on the part of the defendant in the month of May 1973 was the outcome of that intention of the defendant to infringe plaintiff's right and title over the suit plot. So plaintiff issued public notice to which a reference has been made in the earlier para of judgment. It was replied by defendant making false claim and title over the suit plot on the basis of sale deed in his name. Plaintiff replied the notice of defendant asserting his claim and title over the suit plot and then filed the suit in the year 1974. In substance it was only in the year 1973 that plaintiff released unequivocal interruption, infringement to the title over the suit property by the defendant and that is the time when the right to sue accrued and as such plaintiff filed in fact the suit in the year 1974. Therefore, the suit filed by the plaintiff was well within the limitation. The contention raised by learned Counsel for appellant that suit is barred by limitation is absolutely incorrect.
57. As stated earlier because of the contentions raised by the learned Counsel for appellant that the trial Court has committed gross error in appreciation of evidence and material evidence has been ignored by the trial Court, I have reassessed the entire evidence. I have found that the conclusion reached by the trial Court was based on proper and correct assessment of the evidence on record. Thee is also no substance in the contention that the trial Court has omitted to consider the material evidence on record. The trial Court has reached findings on assessment of evidence oral as well as documentary in correct perspective. On my own assessment of evidence, I have come to the conclusion that the conclusion arrived at by the trial Courts area correct and it is not a case to interfere with the findings of fact recorded by the trial Court. The appeal merits no consideration at all and deserves to be dismissed. I therefore, pass the following order :
ORDER:
58. Appeal is dismissed with no orders as to costs.
59. Appeal dismissed.