Bhim Chandra Guin v. Union of India — 1991 DIGILAW 16 (CAL)

JUDGMENT Monoranjan Mallick. J. This appeal is directed against the judgment and decree passed by 2nd Court of Additional District Judge, Midnapore in. Title Appeal no. 300 of 1959 affirming the judgment and decree passed by the Subordinate Judge. 1st Court, Midnapore in Title Suit no. 22 of 1955. The facts of this case which are necessary to dispose of the second appeal may, briefly, be stated as follows :- 2. The disputed property comprises 9 decimals of land in plot no. 1013 of Nabinabag Barabazar Mouja together with a two storeyed house and other structures thereon bearing holding no. 19 of ward no. 3 Barabazsr Mahalia within the Midnapore Municipality and is the subject matter of this litigation, It is the case of the original plaintiff since deceased that on 30.9.1924 he purchased the suit property with a one storeyed house then standing thereon from one Nityamoyee Dasi for Rs. 7500/- in the name of his minor son Manik Ratan Guin, being the defendant no. 3. He paid the entire consideration money of Rs. 501/- at the time of execution of the bainanama, Rs. 4700/- directly to the heirs of Motilal Mukherjee, the mortgagee by way of satisfaction of the mortgage on the property and Rs. 2300/- to the vendor at the time of registration of kobala. Afterwards the original plaintiff claimed to have repaired the existing building and constructed the second storeyed building over it. He got the name of his son Manik Katan Guin mutated in respect of the property in the landlord's sheresta and the Municipality simply out of love and affection and he himself paid the rent and tax thereof all along. He claimed to have inducted Ramanarayan Jhaor (the defendant no. 4 herein) and Chunilal Jhaor (predecessor of defendant no. 5 to 7) as monthly tenants in the property at a rental of Rs. 29/- per month which was gradually enhanced to Rs. 95/per month and realised rent from them and their heirs in succession. In 1351 B.S. he went to Hardwar for a change of climate after authorising his son Manik to realise rent from the tenants of the house but when he returned to Midnapore in Asar 1353 B.S he found that Manik had committed mischiefs during his absence from Midnapore by reducing the rate of rent and appropriating the tents realised from the tenants. The plaintiff claimed the annual returns of income tax showing the rent property as his-only property to be submitted by him and subsequently separated fram Manik. On 16th February 1950 Manik executed a deed of release of the disputed property in his favour. In the same year the defendants nos. 4 to 7 as tenants of the house filed an application before the Rent Controller and in collusion with Manik got an ex parte order of attachment as to rent against him. In 1949-50 five certificate cases were filed against Manik viz., 172J/8 of 1948-49 and 63J/8 of 1949-50 by the Sales Tax Department, Midnapore for realisation of arrears of sales-tax, no. 160J/8 and 162J/8 of 1949-50 by the Excise Department, Minapore, for realisation of excise duty and no. 11/8 of 1950-51 by the Income-tax Department, Midnapore for realisation of arrears of Income tax due from Manik. A notice under s. 7 of the Bengal Public Demands Recovery Act was served only in the first case but not in the others and the disputed property was attached as if it was in the possession of Manik as owner. Thereupon the plaintiff preferred a claim to the attached property but this was disallowed by the Certificate Officer and ultimately by the Board of Revenue on revision on and January, 1955. The property was sold in auction in execution of the certificates and purchased by the defendant no.6 on 21.455. It was alleged that the attachment and sale of the property were illegal and void as the certificate debtor had no title or possession in the property and the same wee not birding on the plaintiff. The plaintiff has therefore filed this suit for declaration that he is the real owner and that the attachment and sale of the disputed property were illegal and void and also for recovery of possession and damages for wrongful occupation of the property from the defendants nos. 4 to 7. 3. The suit filed by the plaintiff was contested by the defendant nos. 4 to 7 by filing a joint written statement The defendant no. 2 State of West Bengal filed written statement and contested the suit. The defendant no. 3 also filed separate written statement. 4. The case of the defendants may briefly be stated as follows: The suit property was purchased by Manik Ratan Guin being the defendant no. 4 to 7 by filing a joint written statement The defendant no. 2 State of West Bengal filed written statement and contested the suit. The defendant no. 3 also filed separate written statement. 4. The case of the defendants may briefly be stated as follows: The suit property was purchased by Manik Ratan Guin being the defendant no. 3 with the cash money and ornaments of his mother which were inherited by him and not by the plaintiff. That Manik was the owner thereof and exercised acts of possession as the owner thereof and exercised acts of possession including mutation of his name in the landlord's shercsta and in the municipality, payment of relit and tax for the property, repair and construction of the house and realization of rent from the tenants, defendants nos. 4 to 7. It was contended that the. certificates were duly filed for realisation of several public demands due from the defendant no. 3 and the disputed property was rightly attached and sold for such dues. As the attachment and the sale is valid and effective the plaintiff not having filed this suit within one year from the date when his claim case against the attachment was dismissed, the suit is barred by limitation. 5. The learned Subordinate Judge on consideration of oral and documentary evidence held the suit property to be the property of the plaintiff purchased in the benami of the defendant no. 3, his minor son and the plaintiff was entitled to have the order of dismissal of the claim set aside but as the suit was not filed within one year of the order passed by the Certificate Officer dismissing the claim case, the suit was barred by limitation under Article 14 of the Indian Limitation Act. The learned. Trial Judge having dismissed the suit an appeal was preferred before the District Judge, Midnapore and the Second Court of the Additional District Judge. Midnapore who heard the appeal reversed the finding of the learned Trial Judge as regards the acquisition of the property of the plaintiff in the benami of the defendant no. 3. The learned First Appellate Court has come to a finding that the defendant no. 3 was the real owner of the property and the property was consequently and rightly sold in the execution of the certificate. 3. The learned First Appellate Court has come to a finding that the defendant no. 3 was the real owner of the property and the property was consequently and rightly sold in the execution of the certificate. He also affirmed the judgment of the learned Trial Judge that the plaintiff's suit was barred by Article 14 of the Limitation Act of 1908 as the present suit was brought more than one year after the date on which the Certificate Officer dismissed the claim case of the plaintiff. 6 Being aggrieved the plaintiff bas preferred this second appeal 'and he is now being succeeded by his legal heirs who are prosecuting this appeal. 7. Before us the learned Advocate for the appellant has urged two points: First, both the Courts below came to an erroneous finding that Article 14 of the Limitation Act apply that it being a suit for declaration of title and for other consequential relief, the residuary of Article 120 of the Limitation Act of 1908 is attracted to the case and the suit is not barred by limitation. It is also contended that even if considered that Article 14 of the Limitation Act is attracted the suit is not barred by limitation as the plaintiff has the right to prefer an appeal, revision and review and when ultimately the revision by the Revenue Board was dismissed on 22nd January, 1955 he filed this suit within one year thereof and consequently under no circumstances the suit could be barred by law of limitation. 8 Secondly, the learned First Appellate Court erroneously overruled the finding of the learned Trial Judge made on proper appreciation of evidence and the finding of the First Appellate Court being perverse h liable to be set aside. 9, On behalf of the contesting respondents it is submitted that there was a valid concurrent finding by both the Courts below that the suit is barred by limitation. Secondly the finding of the learned Trial Court is not at all perverse but is based on appreciation of evidence and only because the First Appellate Court deferred from the finding of fact in this respect from the learned Trial Judge when that was done in the proper appreciation of evidence, the finding of the First Trial Judge cannot be held to be perverse. It is also submitted that in view of s. 4 of the Benami Transactions (Prohibition of the Right to Recover Property) Act, 1988 the plaintiff is not entitled to file this present suit against the real owner when the property has been purchased in the name of defendant no. 3, claiming to be the real owner of the property and consequently the appeal is liable to be dismissed under any circumstance. 10. We will first consider the finding of the learned Appellate Judge affirming that of finding of the learned Trial Judge that the suit is barred by limitation. Both the Courts below have come to the finding that Article 14 of the Limitation Act 1908 applies to this case. Article 14 of the Limitation Act reads as follows: "Article 14: To set aside any act of order of an officer of Government in his official capacity, not herein otherwise expressly provided for." The limitation is one year from the date of the order. 11. It is the finding of the both the Courts below that it being in substance a suit to set aside the order of an officer of Government in his official capacity not herein expressly provided for in the Limitation Act a suit to set it aside has to be filed within one year from the date of the order and when claim case was dismissed by the Certificate Officer on 21st January. 1950 and the suit was filed only in 1955, the suit is barred by limitation. 12. Mr. Barun Kumar Roy Chowdhury, learned Advocate appearing for the appellant seriously challenges the above finding. It is submitted that even if it be conceded that Article 14 of the Limitation Act 1908 is attracted to this case which he very much disputes yet the Limitation would run from the date of the final order passed by the Board of Revenue on 21st January, 1955. It is contended that under s. 51 of the Public Demands Recovery Act the plaintiff had a right of appeal, that he had also a right of revision to the Collector. It is contended that under s. 51 of the Public Demands Recovery Act the plaintiff had a right of appeal, that he had also a right of revision to the Collector. Divisional Commissioner and also to the Board of Revenue, that the plaintiff preferred the appeal and then moved the revision case before the appropriate authorities and the Board of Revenue having dismissed the revision case on nod January, 1955 he has brought this suit within one year thereafter and even if Article 14 of the Limitation Act is attracted the limitation would run not from the original date of the order of the Certificate Officer but from the date of final order passed by the Board of Revenue. 13. We find from the judgment of the First Appellate Court that before the First Appellate Court two decisions were referred to being AIR 1943 Mad 633 and AIR 1952 Pepsu 55 in which it has been held that the limitation would run from the date of the final order if the appeal or revision is taken to the Appellate Authority or to the Revisional Authority but the learned First Appellate Court did not consider the said decisions on the ground that in none of these decisions the order passed by the Certificate Officer under Bengal Public Demands Recovery Act was under challenge. But in our view the learned First Appellate Court was not justified in rejecting these two decisions on the ground which he did. In order to come to the finding that even it the appeal or revision was taken against the original order of the Certificate Officer the limitation would run from the original order a decision of The Calcutta High Court in Union of India v. Satyendra Nath Banerjee reported in 59 CWN 531 was taken into consideration by the learned Judge. But on careful consideration of the above decision we are unable to held that the said decision at all supports the view that the limitation would run from the original date of the order even if the appeal and revision are taken against such order. In that decision the learned Judge was considering as to whether the Rule 43 of the Bengal Demand Public Recovery Rule have taken away the right of appeal under s. 51 of the Bengal Public Demands Recovery Act. In that decision the learned Judge was considering as to whether the Rule 43 of the Bengal Demand Public Recovery Rule have taken away the right of appeal under s. 51 of the Bengal Public Demands Recovery Act. On making harmonious construction of the Act and the Rules the learned Judge has' held that a person who is unsuccessful in an investigation of claim will have the right of appeal but at the same time he has another remedy viz, the filing of the suit and the power of suit is not taken away whether the appeal is preferred or not, Therefore. the above decision does not lay down the proposition that in order to file a suit after the claim case is dismissed, the suit has to be filed within one year from the date of original order even if the appeal is preferred and after the appeal is dismissed, the revision is also taken to the Revisional Authority including the Board of Revenue. In K G. Rustomji's Law of Limitation. 5th Edn. at page 620 it has been observed that time to attract Article 14 of the Limitation Act, 1908, runsfrom the dale of the final order. The learned Appellate Court could not refer to any decision in which the proposition is made that even if the appeal or revision against the order passed by the Certificate Officer is taken the time would run from the date of the original order. 14. A person being aggrieved by the Certificate Officer has the right to prefer appeal and may seek his redress in revision even if the appeal is dismissed. The Act has given the person aggrieved to file appeal and revision upto the Board of Revenue. When ultimately 'he Board of Revenue dismissed the revision plaintiff has filed this suit for a declaration of title. Even if it be conceded that a suit for declaration of title after the claim case is dismissed has to be treated as a suit for setting aside the order passed by the Certificate Officer the suit can Very well be fined within one year from the date of final order passed by the Board of Revenue. Even if it be conceded that a suit for declaration of title after the claim case is dismissed has to be treated as a suit for setting aside the order passed by the Certificate Officer the suit can Very well be fined within one year from the date of final order passed by the Board of Revenue. Even if it be conceded that filing of appeal or suit is alternative remedy the view cannot be taken that when appeal or revision has been taken the limitation would run from the date of original order and net from the final order. In such case taking of appeal or revision provided in the Act would become infructucus. Party being aggrieved by the original order may get appropriate relief filing appeal or revision. Therefore under any circumstance by filing of suit against the order passed by the Certificate Officer in the claim case should wait until and unless the same is tested in appeal and revision. Therefore, in our view, the learned First Appellate Court committed a great error in taking the view by affirming that of the Trial Court that the suit not having been flied within one year from the date of original order of the Certificate Officer is barred by limitation under Article 14 of the Limitation Act. In our opinion the suit is not barred by limitation. Therefore, the first contention of the appellant succeeds. 15. We would now take up the second contention of the appellant. It is submitted that the learned First Appellate Court came to the perverse finding that the defendant no. 3 in whose name the said deed stood was the real owner. It is submitted that the learned Trial Judge has elaborately considered both oral and documentary evidence and made a proper appreciation of the evidence but the learned First Appellate Court without reversing them came to the perverse finding that the defendant no. 3 in whose name the sale deed stood was the real owner. 16. He also challenges the finding of the First Appellate Court that onus lies heavily upon the appellant to prove that he was a real owner. He draws our attention to the Division Bench decision of this Court in Sm. Urmila Dasi v. Probodh Ch. Ghose, reported in AIR 1986 Cal. 383 in which the Division Bench has, relying on AIR 1980 SC. He draws our attention to the Division Bench decision of this Court in Sm. Urmila Dasi v. Probodh Ch. Ghose, reported in AIR 1986 Cal. 383 in which the Division Bench has, relying on AIR 1980 SC. 727 , held that when acquisition is made in the name of very close relations like wife and children the burden of proving the benami character lies the on person who asserts it no doubt but very strict proof should not be adhered to. 17. Before us Mr. Roy Chowdhury has laid much stress on that decision and has urged that the learned First Appellate Court thinking that heavy onus lay upon the plaintiff sought to hold that the plaintiff did not discharge that onus and came to the perverse finding that the property was really acquired by the defendant no. 3. 18. Mr. Sudhis. Das Gupta, learned Advocate appearing for the respondent has referred to us a decision of Federal Court and several decisions of the Supreme Court including A.I.R. 1949 SC 88, A.I.R. 1954 S.C. 49 and also A.I.R. 1980 S. C. 77 and has urged that in all these decisions it has been clearly indicated that onus lies upon the plaintiff and such onus is really heavy to prove that he is the real owner and the person in whose name the sale deed is executed is the benamdar. 19. On considering the above decisions we are of the view that the learned First Appellate Court on taking the view that the onus is heavy on the real owner to prove that he is the real owner when he claims that this property was acquired in the name of the plaintiff and he his really acquired in him did not commit any Illegality and has taken proper view' of law sette1ed by Supreme Court. 20. We would now consider as to whether the learned First Appellate Court came to a perverse finding reversing the finding of the learned Trial Judge that the plaintiff was the real owner. It will be appropriate to take into account the following two decisions of the Supreme Court, AIR. 1959 S.C. 57 and A.I.R. 1963 S.C. 302 to ascertain the jurisdiction of High Court in Second Appeal in interfering with the finding of fact of the First Appellate Court, 21. It will be appropriate to take into account the following two decisions of the Supreme Court, AIR. 1959 S.C. 57 and A.I.R. 1963 S.C. 302 to ascertain the jurisdiction of High Court in Second Appeal in interfering with the finding of fact of the First Appellate Court, 21. In Deity Pattabhiramaswamy v. S.S. Hanymayya & Ors, reported in A.I.R. 1959 S.C. 57 the Supreme Court has clearly held that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be, nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact and a Judge of the High Court has, therefore, no jurisdiction to interfere with that finding in second appeal. Similar view is taken in AIR. 1963 S. C. 302 (Ramchandra Ayyar v. Ramalingam Chettiar) where it has been held that only when the finding is recorded without evidence it can be assailed in the second appeal, other wise the finding of fact based on evidence by the First Appellate Court cannot be assailed in the second appeal. 22. Mr. Roy Chowdhury appearing for the appellant has submitted that the learned first appellate court did not consider the finding arrived at by the learned Trial Court nor did he assail them to come to the different finding. 23. The judgment of the-First Appellate Court cannot be challenged only because he has not specifically refuted the finding of the learned Trial Judge. It can only be assailed if it can be said that his finding was based on no evidence or that it was a perverse finding. 24. We have carefully considered the finding of the learned first Appellate Court that it was the defendant no. 3 who was the real owner. The learned First Appellate Court has found that the consideration money of the Kobala if not full was partially provided from the sale proceeds of the ornaments which the deceased mother of the defendant no. 3 had left and which the plaintiff being the husband had In his possession. The learned First Appellate Court has also taken into consideration the fact that even though in respect of another property standing in the name of the defendant no. 3 had left and which the plaintiff being the husband had In his possession. The learned First Appellate Court has also taken into consideration the fact that even though in respect of another property standing in the name of the defendant no. 3 the name of the original plaintiff was mutated but so far as the suit property is concerned the mutation was made in the name of the plaintiff in the sherista of the landlord as well as before the Municipality. He has also found that the plaintiff clearly admitted that at least for some period the defendant no. 3 the alleged benamdar realised the rents from the tenants and also at one time reduced the rent. It was abo found that in some years the suit property was shown in the income-tax return of the defendant no. 3 even though in some earlier years not only this property even the business of the defendant no. 3 was shown in the return of the plaintiff. 25. The learned First Appellate Judge therefore came to the finding that the property was acquired even though the defendant no. 3 was minor at that time by his father in the Dame of the defendant no. 3 so that he could be the real owner and the fact that subsequently the defendant no. 3 was allowed to deal with property himself would clearly negative the contention of the plaintiff that the defendant no. 3, was merely the name lender and the plaintiff was the real owner. 26. It is true that there were conflicting evidence as regards the dealing with the property but when a final Court of fact has on appreciation of said evidence treated the defendant no. 3 to be the real owner reversing that of the learned Trial Judge we are unable to hold that only because he differs from the learned Trial Judge the finding was a perverse one when we are satisfied that there were sufficient evidence for the learned First Appellate Court to come to the finding as he did. 27. Even if we could have held that the finding of the learned First Appellate Court was perverse and that the plaintiff was the real owner the present suit would have to be dismissed by us in view of the recent change in the law it is. 27. Even if we could have held that the finding of the learned First Appellate Court was perverse and that the plaintiff was the real owner the present suit would have to be dismissed by us in view of the recent change in the law it is. also to be noted that the Supreme Court in AIR 1989 SC 1247 has clearly held that s.4 of the Benami "Transactions, Prohibition to Recover Property) Act would be attracted even if the appeal is pending in Supreme Court and s. 4 is retroactive to attract even suit pending on the date when the Act came into force. Section 4 of the Benami Transactions (Prohibition of the Right to Recover Property) Act, 1988 reads as follows: "4 Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this action shall apply,(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the properly is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." 28. Sub-section (1) of s. 4 clearly prohibits the real owner to file any suit, to enforce any right in respect of any property held benami against the person in whose name the property is held claiming to be the real owner of such property. Mr. Sub-section (1) of s. 4 clearly prohibits the real owner to file any suit, to enforce any right in respect of any property held benami against the person in whose name the property is held claiming to be the real owner of such property. Mr. Roy Chowdhury for the appellant has sought to argue that the parties being in fiduciary .capacity in view of sub-so (3)(b) of s. 4 of the Benami Transactions (Prohibition of the Right to Recover Property) Act, 1908 the plaintiff would be entitiled to file the present suit for declaration of title of property claiming to be the real owner as the property stands in the name of his son who stands in fiduciary capacity with the plaintiff. 29. On a careful perusal of sub-so (3)(b) of s. 4 of the said Act we are unable to accept the above contention. Clause (b) of sub-so (3) states that nothing in s. 4(1)(2) shall apply where the person in whose name the property is held is a trustee or other person standing in the fiduciary capacity and the property is held for the benefit of another for whom he is a trustee or towards whom he stands in such capacity. But in this case even though as between the father and the son father stands in a fiduciary capacity with son, the son specially a minor son cannot stand in the fiduciary capacity with hi, own father. Therefore the defendant no.3 cannot be held to be the person to be in fiduciary capacity of the plaintiff and the plaintiff therefore cannot take the benefit of sub-so (3) of s. 4. 30 Therefore, the contention of Mr. Roy Chowdhury in this respect is not at all acceptable. In our view even if it could be held that the finding of the Trial Court was erroneously set aside by the learned First Appellate Court and such finding was perverse even then the plaintiff cannot in view of S. 4 (1) of the above Act get any such declaration from the Court of Law that the property which stands in the name of the defendant no. 3 is actually owned by him or that he is the real owner of the property. 31. In view of the above the suit is liable to be dismissed. The appeal therefore fails and is dismissed. 3 is actually owned by him or that he is the real owner of the property. 31. In view of the above the suit is liable to be dismissed. The appeal therefore fails and is dismissed. However, the parties shall bear their respective costs for themselves. Manabendra Nath Roy, J. I agree. Suit and appeal dismissed.