Calcutta High Court (Appellete Side)
Anangadev Barman vs Jagadish Chandra Maity & Anr on 27 July, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
S.A. 635 of 2008
Anangadev Barman
Versus
Jagadish Chandra Maity & Anr.
For the appellants : Mr. Gopal Chandra Ghosh
Mr. R. N. Mahato
For the respondent : Mr. Puspendu Bikash Sahu
Mr. Prasanta Bishal Heard on : 20.07.2016 Judgment on : 27.07.2016 Indrajit Chatterjee, J. This second appeal has been preferred by the defendant/appellant assailing the judgment and decree passed by the First Appellate Court in connection with Title Appeal No.59 of 2007 disposed of by the learned Fourth Additional District Judge, Paschim Medinipur on 29th May, 2008 wherein the Court was pleased to confirm the judgment and decree passed by the Learned Trial Court being the First Court of Civil Judge, Junior Division, Paschim Medinipur dated 16th April, 2007 in connection with Title Suit No. 57A of 1984.
The parties fought the legal battle with the following pleadings. The case of the plaintiff was thus, Bhabataran Bar @Barman, the original appellant No.1 was the defendant no.1 and defendant no.2 was Haripada Jana. Jagadish Chandra Jana, the plaintiff and Bhabataran Bar were bosom friends. Haripada Jana was the adopted son of the aunt of Jagadish. They belonged to the same village Bishnupur, district Midnapur. They decided to purchase some sub-plots from Monarama Chowdhury. The plaintiff was a Teacher of Bishnupur High School and was also the private tutor of the son of defendant No.1, Defendant No.1 used to work as Lower Division Clerk in Midnapur collectorate who use to reside in a mess at Mirbazar in Midnapur town along with Jitendranath Bar. The plaintiff decided to purchase plot no.24 and defendant No.1 decided to purchase plot no.28 and Jitendranath Bar decided to purchase sub-plot 27. Earnest money of Rs.150/- was paid for each of the sub-plots to Manarama Chowdhury respectively be the vendees. Balance amount in respect of the plaintiff's proposed sub- plot was fixed Rs.482/-. The plaintiff agreed to pay the balance amount to Manorama Chowdhury on the date of registration before the Registrar.
The plaintiff made out his mind to purchase that sub-plot no.24 in the name of any beneficial person in benami as he was apprehending that if the properly was purchased in his name then that might have been made a subject matter of Partition Suit being Title Suit No. 53 of 1959 pending before the First Court of Sub- Judge, Medinipur between the co-sharer of the plaintiff.
The defendant no.2 was chosen by the plaintiff as the person to be the benamdar and she agreed to register one 'Nadabi Patra'. A deed was prepared in accordance with consent of the defendant no.2. Monorama Chowdhury was not in a position to go to the Sub- Registrar to register the deed. The deed was to be presented for registration. The deed was drafted in the name of the defendant NO.2 as the vendee but defendant No.2 could not attend the venue where the deed was drafted. Then the scribe gave a proposal to insert the name of defendant No.1 along the defendant No.2 and the later agreed and as such before the name of the defendant no.2 the name of defendant no.1 was written on the deed in question and the other portion of the body remained intact as if it was written in one's name.
It was the claim of the plaintiff before the Trial Court that thereafter the balance amount of Rs.482/- was paid to Monorama Chowdhury by him and as such the deed was executed. It was agreed by the defendant no.1 also, that he will execute one 'Nadabi patra' in favour of the plaintiff in respect of the suit property. He did not keep his words even after the disposal of that title suit and repeated demands made by the plaintiff lastly on 11.012.1983. The defendant No.1 declined to register any deed of disclaimer or 'Nadabi Partra" and as such the title suit was registered before the trial court.
The defendant no.1 died during pendency of the appeal and his son Anangadev Barman in whose favour Probate was granted by the Court substituted himself as the appellant.
The case of the defendant no.1 before the Trial Court was that all the allegations made by the plaintiffs are false and the specific case of the defendant no.1 before the trial Court was that he purchased the suit property being sub plot no.24 from Monorama Chowdhury in his own name and the name of defendant No.2 was included as per the instruction of his father and he is in possession of the suit property and his name has been recorded in the LR & ROR as well as before the municipal authority. It is also the case of the defendant that he had enough of money to purchase that sub- plot as he was in government service since 1943 and he is a man of means who is the only son of the father who had landed property in his own name before 1949.
The defendant further claimed that the defendant purchased sub-plot no.24 from Monorama Chowdhury in his own name and as a suit sub-plot no.24 is just opposite to sub-plot no.28 which he also purchased this defendant also purchased that suit plot. The defendant No.1 further claimed in the W.S that the major part of the consideration money and registration charges etc. were borne by the defendant no.1 and defendant no.2 promised to pay later on but did not pay thereafter. It has also been claimed by the defendant no.1 that the plaintiff gained over the defendant no.2 and one 'Nadabi deed' was executed in favour of the plaintiff in the year 1983.
It may be mentioned that the suit was dismissed earlier by the learned trial court on preliminary issue that the suit is not maintainable after the enactment of Benami Transaction (Prohibition of Right to Recover Property) Act and the same view was affirmed by the learned Additional District Judge, 6th Court, Midnapur, in title Appeal No.105 of 1999. The matter was taken up before this Court in Second Appeal 292 of 1993 and disposed of by this Court as per judgment dated 05.02.2002 wherein this Court was pleased to direct the Trial Court to decide the suit on all other issues and on an additional issue "as to whether the suit property is benami or not." On receipt of that order the matter was heard by the learned Trial Court and the suit was disposed of 16th April, 2007 about which I have already stated. Title Appeal No.59 of 2007 was registered which affirmed the judgment and decree of the trial court.
As per the schedule of the plaint the total area in dispute is 0.078 acres i.e. the entire sub-plot no.24 sold by Manorama Chowdhury.
The Division Bench framed in all two issue for adjudication of this appeal: (a) Whether the learned courts below committed substantial error of law in passing a decree in favour of the plaintiff on the ground that appellant practiced fraud upon the plaintiff by interpolating his name in the deed which is in consistent with the case made out by the plaintiff in paragraph 7 of the plaint wherein plaintiff made no such case and the definite case of the plaintiff was that defendant Nos. 1and 2 being his friends he decided to purchase the property in the benam of the defendant Nos. 1 and 2 to avoid preemption at the instance of his co-sharer.
(b) Whether the learned courts below committed substantial error of law in holding that the appellant did not mutate his name after purchase from Manorama by totally overlooking the existence of Exhibits "B", "E", 'H", "H1", "I" and "J" which show that the defendant No.1 mutated his name and had been paying rent pursuant to such mutation. Call for the records and issued usual notices.
It was argued on behalf of the appellants that both the learned trial courts wrongly held that the plaintiff was in possession of the suit property even though the documents like Exhibits "B", "E", 'H", "H1", "I" and "J" were there being the RORs, rent receipt issued by the State and the rent receipt issued by the municipality to establish prima facie that the plaintiff was not in possession of the suit property but actually the appellant/defendant No.1 is in possession of the suit property. He further argued that the name of Haripada Jana be deleted from the caused title of the Second Appeal as he is dead and he left no interest behind him over the suit property.
He further submitted that the 'Nadabi Patra' was executed by the defendant No.2 on 12th December, 1983, when the impugned deed was registered in the year 1959 and it can safely be presumed that sometimes the said deed remained with the defendant No.1 and sometimes with the defendant No.2 and defendant No.2 when he executed the 'Nadabi Patra' handed over the disputed deed to the plaintiff and as such it cannot be said that since 1959 the said deed was in custody of the plaintiff.
He further submitted by taking me to the tax receipts to show that the appellant has paid tax since 1977 and that is indicative of the fact that actually the deed was with the appellant even before 1977 as without the deed being produced no legal authority can mutate the name of the defendant No.1 from the original owner and that the municipal authority will not also show mutate the name in the absence of the deed.
I asked the learned Advocate why the appellant did not ask the scribe to write one deed to incorporate both sub-plot Nos.24 and 28 without going for separate deed. Myself further asked as to why the sub-plot No.24 vide the impugned deed was executed not solely in favour of the defendant No.1 but also in favour of the defendant No.2 and what was reason to include the name of the Defendant No.2 in that deed. On this point the learned Counsel submitted that the consideration money in respect of the impugned deed was paid by the appellant and there is cogent evidence to this effect from the mouth of the attesting witness. Thus, he tried to convince this court that actually the suit property was purchased by the appellant/defendant No.1 and defendant No.2 was just a name lender and that name was used at the instance of the father of defendant No.1.
Myself also asked the learned Advocate appearing on behalf of the appellant then why this defendant No.1/appellant remained silent over the matter and did not issue any letter asking the defendant No.2 to execute one deed of disclaimer in his favour. The learned Advocate to me to the W.S to show that it is the specific of the defendant No.1 that he is in possession of the suit sub-plot No.24.
He also submitted that the both the learned trial court and the first appellate court invented a story that actually the appellant induced the Registrar and also the scribe to incorporate his name in the deed of 1959 which was not at all the case of the plaintiff. He further submitted that the plaintiff at best can claim half share over the sub-plot No.24. He also contended that the plaint is silent as to when the partition suit was disposed of (there is such a date in evidence of PW 1). He took me to the plaint to convince to this court that the defendant No.1 paid the consideration money as defendant No.2 was not there and as such this appellant is the absolute owner of the suit property who is in possession of the same. He further submitted that this Court in second appeal can look into the fact, if the findings of the courts below were perverse to come to the finding and some portion of the findings was beyond the pleadings.
This court must concentrate itself as to the substantial question of law as formulated by the Hon'ble Division Bench. Point No.(a) was formulated to answer as to whether the courts below committed error of law in passing a decree in favour of the plaintiff on the ground that appellant practiced fraud upon the plaintiff by interpolating his name in the deed which is inconsistent with the case made out by the plaintiff in Paragraph 7 of the plaint. On this point so formulated it has also been mentioned that it was definite case of the plaintiff that defendant Nos.1 and 2 being his friends, he decided to purchase the property in the 'benam' of the defendant Nos.1 and 2 to avoid preemption at the instance of his co-sharer.
The fact as I get from the plaint is that at first the plaintiff requested the defendant No.2 to be the 'benamdar' in respect of the sub-plot No.24 but at the time of registration the defendant No.2 did not arrive but the defendant No.1/appellant was very much there at the venue and the plaintiff/respondent requested the defendant No.1 to be a name lender along with defendant No.2 as asked by the scribe as the presence of a party is very much necessary for presence of a deed. To this extent this issue formulated as regards facts is not matching. It was not the case of the plaintiff that both defendant No.1 and defendant No.2 were his friends. Actually it was the positive case of the defendant No.1 that the name of defendant No.2 chosen as per the request of the father of the defendant No.1. Thus, in this regard also the point for determination is wrong.
I have gone through the pleadings, judgments of the courts below, evidence on record and the documents produced. The admitted position is that defendant No.1 and defendant No.2 (both deceased) and the plaintiff were good friends. The three deeds that is Exhibits 4, A and the disputed deed (exhibit 1) were registered on 05.09.1959 that is on the same day and all were written in the same sitting from 7 a.m. to 10 p.m. by the scribe. The attesting witnesses were the same persons in all the three deeds. Admittedly DW 2 was not present at the time of execution and registration of the deed in question. The plaintiff as PW 1 categorically claimed that he was present at the time of the writing of the deed and also when it was registered on commission. The evidence of the independent witnesses like that of the attesting witness will go to show that the residuary amount of the consideration money was paid by the defendant No.1 and it was the positive case of the Defendant No.1/appellant as per the W.S. The story of apprehension of preemption as made out Item No.a is not not matching with the fact. The specific case of the plaintiff was that there was a title suit pending as regards partition of the suit property and he was affaird of the co-sharers.
Mr. Mahato further supplemented his argument by saying that why the plaintiff did not issue any letter either to defendant no.1 or to defendant no.2 to execute the "Nadabi Patra" even though the partition suit was disposed of in July, 1959. He further submitted that even the defendant no.2 executed that deed of disclaimer "Nadabi Patra" only in the year 1983 and naturally, this fact may be considered by this Court which will go against the plaintiff/respondent. He further submitted that there is a presumptive value of the record of rights and such record of rights is one of the best evidence of possession unless it is rebutted.
On this point, he has cited a decision of the Hon'ble Apex Court as reported in (2002) 10 SCC 315 (Karewwa & Ors. -vs- Hussenseb Khansaheb Wajantri & Ors.). He further submitted that actually the plaintiff did not take any step to rebut the presumptive value of the finally published record of rights both R.S. and L.R. Thus, he submitted that the shit was barred under Section 34 of the Specific Relief Act, 1963 and also Order 2 Rule 2 of the C.P.C. and that cannot be cured at this stage.
He further submitted that this Court has ample power under Section 100(5) of the C.P.C. to frame one additional issue on that point. In this regard, he has cited a decision of the Hon'ble Apex Court as reported in AIR 1955 SC 604 (M. K. Ranganathan & Anr.
-vs- Govt. of Madras & Ors.). He also contended that if the concurrent findings of both the learned court below are perverse, then the Second Appellate Court has every authority to set aside the said judgment. On this point, learned Advocate has cited a decision of the Hon'ble Apex Court as reported in (2003) 4 SCC 161 (Bondar Singh & Ors. -vs- Nihal Sigh & Ors.).
It was further argued that the burden of proof, to prove that Exhibit-1 was a benami transaction was always upon the plaintiff and he has failed to discharge that burden and as such, the appeal is fit to be allowed and the judgments of the courts below are to be set aside. On this point, he has relied upon the Three Judge Bench decision of the Hon'ble Apex Court as reported in 1980(2) SCC 327 at pagraprah-3 (Gapadibai -vs- State of Madhya Pradesh).
Mr. Puspendu Bikash Sahu, learned Advocate appearing on behalf of the plaintiffs submitted by taking me to Exhibit-B, Exhibit- C series, Exhibit-D series, Exhibit-E series, Exhibit-F series, Exhibit- G series, Exhibit-H, Exhibit- H(1), (I), (J) and (K) to say that the land revenue paid by the defendant no.1 cannot match with any plot number as there is no mention in the plot number in the rent receipt noted in those slips. As regards Parcha and RORs, it was his argument that those Parchas cannot be stretched to include this sub-plot no. 24 which is the matter in dispute. He further submitted that all these documents are post-suit documents and cannot be relied upon.
Thus, he submitted that the question formulated being Question No.-(b), is itself bad in law and not matching with the fact of this case. On this point, he further agitated that point no.2 cannot be said to be any substantial question of law.
As regards point no.1 so formulated by the Division Bench, learned Advocate submitted that in fact no story of fraud was pleaded and as such, this cannot be within arena of this second appeal. He admitted that the word "interpolation" was used by the First Appellate Court at least 10 times even though it was not the case of the parties. He took me Black's Law Dictionary, 6th Addition at page 817 which has defined the word 'interpolate' "to insert (additional or false) words in complete instrument or document......" He further submitted that this word 'interpolate' is synonymous to 'interlineation' which has been defined in the said Dictionary as "the Act of righting in between the lines of an instrument, also what is written in between the lines. He also took me to Section 20 of the Registration Act to show that the work 'interlineation' has been used in a better sense in that section which has cast a duty on the parties to put their initials on any such 'interlineation' blanks, erasures or alteration.
He further submitted that the Benami is a question of fact and that fact has been affirmed by both the courts below and as such, this second appellate court cannot reverse the concurrent findings of fact unless it is perverse. He submitted by taking me to both the judgments to show that there was no perversity. On this point, he has cited a decision of the Hon'ble Apex court as reported in 1974(1) SCC 3 (Jaydayal Poddar Vs. Mst. Bibi Hazra) at paragraph-6 wherein the Apex Court held "that it is 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. But this burden has to be strictly discharged by adducing legal evidence. In that decision the Apex Court further held that the essence of a benami is the intention of the party or parties and though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formula can be laid down but the Apex Court laid down in all these guidelines.
Learned Advocate further submitted that this second appellate court cannot after the concurrent findings of fact as regards possession of the suit property. As regards the ingredients to decide the case as to whether the transaction was benami or not, he submitted that paying of consideration money, possession of the property and the custody of the deed are the major factors. He further submitted that when the defendant no.1 reached the venue at the time of execution and registration of Exhibit-1, he might have the capacity to pay that amount of Rs. 482/- but the question is when he went there he took the said money extra in his pocket at that point of time. He further submitted that this Court should not forget that on the same sitting one deed was executed and registered in favour of the defendant no.1 and that consideration money was paid by him in the year 1959. Rs. 964 (Rs.482+Rs.482) was a fat amount in the year 1959 for one lower division clerk of the Collectorate.
Regarding the onus as regards the burden of proof, learned Advocate has cited a decision of the Hon'ble Apex Court as reported in 1998 WBLR (SC) 17 (Smt. Rebti Devi Vs. Ram Dutt & Anr.) corresponding to 1997 (11) SCC 714 at Paragraph-6, wherein the Apex Court held that the initial burden of proof to establish the plea of benami lies on the party who is claiming as such but when the parties adduced oral and documentary evidence, the question of burden of proof pales into insignificance. Thus in other words when the parties adduced evidence the question of burden of proof looses its value.
Learned counsel further argued that there is positive evidence from the side of the plaintiff that the earnest money was paid by the plaintiff and there is no cross-examination on that and this being so it can be treated as admission on the part of the defendant. He further submitted that DW-1 did not depose that he paid the advance money to Monorama Chowdhury and there is no cross- examination on the point of PW-1's claim that he paid the consideration money of Rs.482/- at the time of registration. On this point he cited the decision of this court as reported in AIR 1983 (Cal) 337 (Traders Syndicate Vs. Union of India) in which the decision of this court as reported in AIR 1961 (Cal) 359 at page 362 was relied upon wherein the court spoke about admission on the part of a body if the assertion made by a party in his examination in chief is not controverted in cross-examination and that is a rule of essential justice.
He further submitted that the defendant no.1 had the opportunity to rectify the deed that is Exhibit-1 to make the deed to convince anyone that it was a deed in favour of two persons and not in favour of one person as is the look of the deed as on today.
Regarding the claim of the defendant no.1 that the DW-2 was chosen by him as per instruction of his father is also not convincing in view of the fact that the defendant no.2 is a resident of other village and his occupation was also different. He also cited the decision of this Court as reported in AIR 1982 (Cal) Page 571 (Radheshayam Agarwal vs. Maharaja Bahadur Singh) a Division Bench judgment wherein the bench held in a case of benami transaction that although motive may not be decisive for determining whether transaction is benami but when direct evidence is wanted, the respectable probabilities and legal inferences arising from time/admission and true fact surrounding circumstances, possession of parties, their relation, motive, obligation, conduct of the parties in dealing with and enjoyment of property are certainly to be taken into consideration.
Regarding the substantial question of law as formulated by the Division Bench, he cited a decision of the Apex Court as reported in (2001) 3 SCC 179 (Santosh Hazari vs. Purosottom Tiwari) wherein the Apex Court held that the respondent is at liberty to show that the question formulated by the High Court was not involved in the case.
In reply it was submitted by the learned counsel appearing on behalf of the appellant that as per Section 32 of the Registration Act the presence of either defendant no.1 or 2 was not necessary, but only the presence of the executant was necessary. Thus, he contended that the claim of the plaintiff that the scribe insisted that the name of the defendant No.1 be noted Exhibit 1 has not legal basis. As regards the payment of rent to the superior landlord of Monorama Chowdhury the learned counsel submitted that such payment was made rightly in view of the fact that the questioned land was non-agricultural land and the Non-Agricultural Act was repealed long after passing the West Bengal Estate Acquisition Act. Regarding the documentary Exhibits as regards the possession of the suit property the learned counsel submitted that on 10.02.1973 he paid rent to Ali Hossain Khan in respect of plot No.169 and this is indicative of possession.
There are some discrepancies regarding substantial question of law as in (a) it has been asked to answer that the "................................................................................................... definite case of the plaintiff was that the defendant nos.1 and 2 being his friends he decided to purchase the property in the benam the defendant nos.1 and 2 to avoid preemption at the instance of the co-sharer".
Point number (a) the fact as established from the evidence both oral and documentary it appears that the deceased appellant Bhabataran Bar @ Barman, the plaintiff/respondent Jagdish Chandra Jana were bosom friends and the deceased defendant no.1 used to reside in a mess at that point of time at Mirbazar, Midnapur and in that mess one Jatindranath Bar was also used to reside and they agreed to purchase 3 plots after negotiating with Monoroma Chowdhury the owner of those plots. It was agreed that the defendant no.1 and that Jatindranath Bar will respectively purchase sub-plots 28 and 27 and the plaintiff will purchase sub-plot 24. The plaintiff decided to purchase the said sub-plot 24 in the name of defendant no.2 (since deceased) who was the adopted son of his aunt and the plaintiff gave Rs.180 as advance to the vendor Monorama Chowdhury. The plaintiff in the plaint assigned a reason for his intention to purchase the land in benami as one partition suit was pending in between his co-sharer.
Fact further reveals that the defendant no.2 did not turn up at the time of execution and presentation of the deed and the scribe told the defendant no.1 to be also a name lender in that impugned deed that is Exhibit-1. There is cogent evidence to show that the plaintiff gave the consideration money. There is nothing in the WS to show that in respect of plot no.24 this defendant No.1/appellant paid any advance. There is also no challenge as regards the evidence of PW-1 that the plaintiff paid the consideration money to the vendor Monoroma Chowdhury. The deed was presented for registration on 05.05.1959 and it was registered on commission. The fact as proved further reveals that in the same sitting three deeds were written namely the deed in favour of defendant no.1 involving sub-plot no.28, the deed in favour of Jatindra Nath Bar in respect of sub-plot no.27 and the impugned deed. The factum also shows that the defendant no.2 did not turn up at the time of the execution of the deed and as such the scribe asked the defendant no.1 who was present at the venue to be also the name lender in respect of that Exhibit-1, prior to the defendant no.2 as one of the vendee just to present the deed for registration.
I have gone through the impugned deed marked as Exhibit-1. I ditto the findings of both the learned trial courts that it was written in such a manner which will prove that the name of defendant no.1 was inserted just at the fag end of the completion of the writing of the deed. His name was written above the name of the defendant No.2 Haripada Jana and the address of the defendant No.1 was written below the address of the defendant No.2. The reading of the deed further shows that it was written in such a manner to suit one person and not two persons that is Bhabataran Bar and Haripada Jana together. Thus, the writing of the deed ipso facto shows that the name of the Bhabataran was suddenly included in the deed. This lends support to the claim of the plaintiff/respondent that the defendant No.1 was just a name lender and the property was purchased by the plaintiff himself in the names of defendant Nos.1 and 2.
The deed was executed and registered on 05.05.1959 and admittedly this respondent was a school teacher. It is needless to say that during the summer season there is morning session in school and as such the presence of the plaintiff/respondent at the time of execution and registration of the deed cannot be doubted. It is true that the burden of prove that the defendant No.1 was benamdar in respect of the suit property was with the plaintiff initially. In civil proceeding burden of proof is not constant, static and it swings from one side to the other side. The Apex Court in his decision in Jaydayal Poddar (supra) held that it is true that the burden of proof lies on the person claiming the property to be a benami transaction. The Apex Court further held that the question whether a particular sale is benami or not is largely one of fact. In his another decision of the Apex Court in Rebti Devi (supra) that the initial burden of proof to establish the plea of benami lies on the party who is claiming as such but when the parties adduced oral and documentary evidence the question of burden of proof peals into the insignificance.
It may be mentioned that both the courts below held that the transaction was a benami transaction and the defendant No.1 was just name lender. It is pertinent to mention here that the defendant No.2 executed the deed of disclaimer in the year 1983. The recital of that deed of disclaimer cannot bind this defendant No.1. This court is not convinced with the answer of the appellant to a court quarry as to why this defendant No.1 prefer to execute two deeds in place of one even though he claimed to have purchased two sub-plots from the same vendor and the deeds were retained in the same place by the same deed writer in the same sitting. This is against natural him conduct. This circumstance shows that actually this deed Exhibit 1 was in fact a benami transaction.
The deed was produced from the custody of the plaintiff/respondent and as such this ingredient is also in favour of the plaintiff/respondent. The argument of the appellant that he defendant No.2 sometimes came into possession of the deed and handed it over to the plaintiff is not convincing to this court. Thus, this court can safely conclude considering the evidence and the argument advanced by the parties that the deed in question was a benami transaction. Even though the defendant No.2's name appeared in the Exhibit 1 as another purchaser but this defendant No.1 did not come forward to ask the defendant No.2 to execute any deed of disclaimer in his favour. He did not ask for any rectification deed to make the deed to be read as executed in favour of two persons and not in favour of one. The case of the defendant No.1 as made out in the W.S that he remained in possession of the half portion of the suit property was abandoned by him during the trial and that was not argued before the courts below.
This court is also not convinced as to why the defendant No.1 preferred to purchase the property with the defendant No.2 who was not his co-villager and even his profession was far different. He was a cultivator by profession and there is no convincing evidence that the defendant No.2 was chosen by the father of the defendant No.1. This circumstance further supports the case of the plaintiff/respondent that actually this defendant No.1 was a name lender.
This court is satisfied that both the plaintiff and the defendant No.1 had the capacity to pay Rs.482/- but that is not enough to conclude that the payment was made by the defendant No.1. It is something more to believe that one lower division clerk came to the venue of registration with Rs.964/-. There is also no cogent evidence that this defendant No.1 made advance of Rs.150/- to Monoroma Chowdhury for this sub-plot No.24. This court not at one with the learned First Appellate Court that there was any element of interpolation or that defendant No.1 was a cheater and he cheated the plaintiff. Such findings of the learned First Appellate Court are hereby set aside.
As regards the observation of the learned First Appellate Court that there was interpolation in the deed this court is of the opinion considering evidence on record such observation was not proper and beyond the pleadings of the parties.
Thus, in view of the discussion so long made above. This court is satisfied that there is no reason to set aside the concurrent findings of the courts below that the main deed Exhibit 1 was a benami transaction and that the defendant No.1 was a benamidar of the plaintiff. Thus, the point so formulated as a) is answered accordingly in favour of the respondent.
I have gone through Exhibits "B", "E", 'H", "H1", "I" and "J" and all those documents are post suit documents. The parcha or RORs submitted by the defendant No.1 before the trial court do not match with the sub-plot No.24 as mentioned in Exhibit 1. There is only one rent receipt issued by the superior landlord who is one pre- suit document but that is not enough to prove that actually the defendant No.1 remained in possession of the suit property after the said deed was executed. The claim of possession as advanced by the parties through the oral evidence is equally poised. The deed of title that is Exhibit 1 being in favour of the plaintiff/respondent this court can say in the same tone with the learned courts below that the plaintiff remained in possession of the suit property. Thus, there is no reason to reverse the concurrent findings of both the courts below on fact that the plaintiff is in possession of the suit property. Such finding cannot be said to be perverse. Thus, the point so formulated as b) is necessary in favour of the respondent.
Thus, this court is satisfied that there is no merit in the second appeal and as such the second appeal is dismissed on context but there will not order as to costs. The judgment and decree of the First Appellate Court as assailed against are hereby confirmed.
Office is directed to communicate this order to the learned First Appellate Court along with the copy of the judgment and the LCR who is in turn will do the needful in that regard.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Indrajit Chatterjee, J.)