Judgment : 1. The 12th claimant in LAOP No.150 of 1979 on the file of the Sub court, Krishnagiri, whose claim had been negatived by the two courts below, is the appellant in this second appeal. The appeal arises out of a reference made by the Land Acquisition Officer under section 30 of The Land Acquisition Act. 2. Heard Mrs. Krishnaveni for the appellant and Mr.V.T. Gopalan, senior counsel appearing for Mr.C.R. Muralidharan for the respondents. At the time of admission the following two substantial questions of law were framed by this Court: .(i) Whether Ex.B. 1 is a benami purchase in the name of Swamikannu for the benefit of Guruswamy Naidu? .(ii) Whether the finding that Respondents 1 to 11 have prescribed title by adverse possession is based on no evidence? 3. An extent of 52 cents out of 48.48 acres comprised in Survey No.614/2 in Mohanahalli Village was acquired among other lands. As there were competing claims, the Land Acquisition Officer made a reference under section 30 of the Land Acquisition Act. In all there were 12 claimants. Out of the 12 claimants, claimants 1 to 11 belong to the same family and they jointly claim the entire compensation while the 12th claimant Lourdu Mary had claimed that she is entitled to 1/4th share in the suit property acquired and claim 1/4th of the compensation awarded by the Land Acquisition Officer. 4. Skeletal facts has to be referred to. Survey No.614/2 measuring 52 cents was acquired for the formation of bypass road. The said extent of 52 cents forms part of the larger extent of 48.48 acres. The said land is a Jambery. Under Ex.A.1 Gurusamy Naidu, Proprietor of Rangavilas Bus Company purchased 1/4th undivided share in the name of his son A. Lakshmana Perumal, another undivided 1/4th share in the name of his Cashier Swamikannu Mudaliyar, under Ex.B.1., that Guruswamy Naidu has purchased the undivided 1/4th share in the said land under Ex.A.2 and the remaining 1/4th share belonged to one Kuppan and others according to the claimants 1 to 11. The entire property was under occupation and enjoyment of Guruswamy Naidu and his family members. The first claimant was examined as a witness to prove the exclusive possession by the family members of Gurusamy Naidu. According to the claimants the purchase under Ex.B.1 was made by Guruswamy Naidu benami in the name of his Cashier Swamikannu. The entire property was under occupation and enjoyment of Guruswamy Naidu and his family members. The first claimant was examined as a witness to prove the exclusive possession by the family members of Gurusamy Naidu. According to the claimants the purchase under Ex.B.1 was made by Guruswamy Naidu benami in the name of his Cashier Swamikannu. It is to be pointed out neither Guruswamy Naidu nor his sons Lakshmana Perumal or China Swami Naidu nor the Cashier Swamikannu are alive. Based upon Ex.B.1 it was contended by the claimants 1 to 11 that 1/4th undivided share was purchased by Guruswamy Naidu, proprietor of the Bus Company benami in the name of Swamikannu, his cashier. The notice for the benami purchase according to the claimants 1 to 11 being to enable Swamikannu to secure solvency and Swamikannu was not the real owner and he is only a name lender. According to the claimants 1 to 11 the entire consideration was paid by deceased Guruswami Naidu and Swamikannu has no fund to purchase. 5. The contesting 12th claimant contended that the purchase by Swamikannu is not benami and that Swamikannu is the real owner and not a benamidar and she is entitled to 1/4th share in the compensation. It should not be lost sight that though the acquired land is only 52 cents, the parties are fighting for the larger extent as the parties claim 1/4th of the entire 48.48 acres in the same survey numbers. It is also stated during arguments that a suit has been filed by the 12th claimant which is pending in respect of the remaining portion. However, this Court has to decide the plea of benami based upon the evidence that had been let in before the courts below. 6. The learned counsel for the appellants relied upon the following decisions of this Court wherein the tests as to whether a purchase is benami or not is laid. Mrs. However, this Court has to decide the plea of benami based upon the evidence that had been let in before the courts below. 6. The learned counsel for the appellants relied upon the following decisions of this Court wherein the tests as to whether a purchase is benami or not is laid. Mrs. Krishnaveni, the learned counsel for the appellant relied upon Doraiswami Pillai and others v. S.K. Munuswami Mudaliar and others, 1975 (2) MLJ 8 ; S. Subba Reddiar and others v. Bhagyalakshmi Ammal @ Guruvachi Ammal and another, 1996 (II) L.W 31 ; A.G. Krishnamoorthy v. V. Kannammal and 6 others (D.B.) 1992 (I) L.W 131 in support of her contention that the purchase of 1/4th undivided share on the facts of the present case is not benami and that the 12th claimant is entitled to 1/4th share in the compensation. 7. Per coutra Mr.V.T. Gopalan the learned counsel appearing for the claimants 1 to 11 pointed out that there is no quarrel with respect to the proposition of law laid down in the said pronouncements which in turn follow the decision of the Supreme Court. It was contended that the findings by the two courts below being concurrent this Court will not interfere with the findings and this Court has to confirm the findings that the purchase under Ex.B1 is benami for Gurusamy Naidu, the then owner of Rangavilas Bus Company. 8. Ex.B.1, the original document of purchase of undivided 1/4th share has been produced by the 12th Claimant. The main contest as to who had paid the purchase money which is one of the prime tests to decide the issue of benami, the two courts have found that there is no evidence to show that Guruswamy or his sons have paid the sale consideration for the purchase under Ex.B.1. The two courts below have taken note of the other material factors despite the said material aspect and have elaborately considered the oral and documentary evidence, the possession and enjoyment, the developments made by the claimants 1 to 11, on the land the sinking of well, securing electricity connection, putting up farm houses and various other activities, which materials are not in dispute. The two courts below have concurrently found that the purchase under ExB.1 is benami by Gurusamy the predecessor of claimants 1 to 11 and that these claimants 1 to 11 are entitled to the entire compensation. As already pointed out there is no quarrel with respect to the tests laid down by the Apex Court as well as by this Court to decide as to whether the purchase in question is a benami or not. 9. The learned counsel for the respondent relied upon Jaydayal Poddar v. Bibi Hazra , AIR 1974 SC 171 and pointed out that when both the parties have let in evidence in respect of their respective case of benami purchase or exclusive title of the ostensible owner the burden of proof pales into insignificance. In that decision the Apex Court held thus: "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 a 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 or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, an absolute formula 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." 10. The two courts have concurrently found that Ex.B.1 is benami and such a conclusion they have arrived at despite their taking note of the fact that the original document of purchase Ex.B.1. was produced by the 12th claimant and no evidence has been let in to show sale consideration was paid by Gurusamy Naidu or his sons for the purchase under Ex.B.1. The test as to possession which comes as the last criteria, the two courts below have considered the evidence let in by either side and held that claimants 1 to 11 and then predecessor always remained in exclusive possession and enjoyment and hence the purchase under Ex.B.1 is benami and the deceased Swamikannu was only a name lendor. 11. It is not the contention of the learned counsel for the appellant that the appreciation of evidence by the two courts below both oral and documentary is either perverse or the two courts have failed to consider material portion of the evidence. 11. It is not the contention of the learned counsel for the appellant that the appreciation of evidence by the two courts below both oral and documentary is either perverse or the two courts have failed to consider material portion of the evidence. According to the learned counsel for the claimants 1 to 11 that no interference is called for in this second appeal merely on the question of burden of proof as the two courts below have considered the entire evidence let in by either side and the plea of proof pales into insignificance and being a finding of fact this Court will not interfere with the concurrent findings. 12. On the contention put-forward by the appellant that the burden of proof has been wrongly cast on the 12th claimant, the learned Senior Counsel appearing for the respondents 1 to 11 placed reliance has been rightly placed on the decision of the Apex Court reported in Smt. Rebti Devi v, Ram Dutt & anothers 1998 (1) L.W 346 and contended that when both sides have adduced evidence the question of burden of proof pales into insignificance. The learned counsel relied upon the following passages:- "Learned counsel for the plaintiff-appellant (legal representative of Rebti Devi) submitted that the property was standing in the name of Rebti Devi and that the defendants who had come up with a plea of benami had not discharged the onus that was on them. It was also contended, referring to Benami Transactions (Prohibition) Act, 1988 that the plea of benami raised in defence was not open to the defendants and that in Nand Kishore Mehra v. Sushila Mehra 1995 (4) SCC 572 : 1996 (1) L.W.107, which is a three judge judgment, the principles decided in R. Rajagopala Reddy v. Padmini Chandra Sekharan 1995 (I) CTC 568 : 1995 (1) L.W. 427 (which is also decision of three learned Judges) have been doubted and hence the said Act is applicable to the facts of the case even though the defence to benami was raised long before 15. 1988 when the Act came into force. Learned counsel for the respondent contended that the finding of fact arrived at by the first appellate court was not rightly interfered with by the High Court and that it did not call for any interference under Article 136, of the Constitution of India. 1988 when the Act came into force. Learned counsel for the respondent contended that the finding of fact arrived at by the first appellate court was not rightly interfered with by the High Court and that it did not call for any interference under Article 136, of the Constitution of India. It was also submitted that R. Rajagopal Reddys case holds good and has not been doubted in Nand Kishore Mehras case. So far as the first submission of the appellants counsel is concerned, we are of the view that it is true that the respondents defendants who have raised a defence of benami in their written statement have to discharge the initial burden of proof and establish the plea of benami. Parties adduced oral and documentary evidence. The lower Appellate court had considered the evidence adduced by both sides and arrived at a conclusion that the defendants had discharged the said burden. When both sides had adduced evidence, the question of burden of proof pales into insignificance. The High Court was therefore right in not interfering with the said finding. The said finding of fact cannot be canvassed in this Civil Appeal by the plaintiff or her legal representative." 14. The learned counsel relied upon the above pronouncements and also contended that this Court will not interfere with the concurrent findings. There is force in the submission made by the learned Senior Counsel appearing for the contesting respondents/claimants 1 to 11. .15. Though the learned counsel for the appellant placed a typed set of papers containing the evidence of C.Ws. 1 and 2 as well as R.Ws. 1 and 2, this Court finds that the two courts have considered the entire evidence in detail and their findings are supported by the evidence available on record. No perversity in appreciation of evidence has been pointed out by the learned counsel for the appellant. In the absence of perversity this Court will not be justified in re-appreciating the oral evidence and merely because another view is possible, this Court sitting in second appeal will not be justified in re-appreciating the evidence. The court holds that the appreciation of evidence by the two courts below is fair and reasonable and sitting in second appeal as held by the Apex Court, this Court will not be justified in interfering with the concurrent findings. 16. The court holds that the appreciation of evidence by the two courts below is fair and reasonable and sitting in second appeal as held by the Apex Court, this Court will not be justified in interfering with the concurrent findings. 16. Before concluding it has to be pointed out that the possession of the property admittedly continued with Gurusamy Naidu and his family. It is further admitted that Gurusamy Naidu and two others dug wells, installed electric motors and pumpset. Swamikannu the ostensible owner as seen from Ex.B1 has done nothing nor he had taken part in digging of any of the wells nor was he ever in possession or exercised any right of ownership at any point of time. 17. C.W.1 has deposed that Guruswamy Naidu and his two sons dug four wells in the property and erected motor pumpsets and they have obtained electric service connection as well in their names. Guruswamy Naidu and his sons have put up farm houses which is of permanent nature. Putting up of permanent structure had not been objected either by Swamikannu during his life time or subsequently by the 12th claimant, his wife or their sons. .18. Neither the contesting 12th claimant nor her husband nor her sons have ever raised their little finger when Guruswamy Naidu or his two sons developed the land, dug wells, erected electric motors and pumpsets, secured electricity connections, put up farm houses and other construction of permanent nature in the total extent of 48.48 acres. That apart in a portion of the entire extent of 48.48 acres the claimants 1 to 11 have buried the said Guruswami Naidu, his son Lakshmana Perumal and Chinnaswamy Naidu besides other members of late Gurusamy Naidus family and for such a burial neither Swamikannu nor his heirs have ever raised any objections. The above activities are not fugitive activities, but activities of permanent nature to the knowledge of Swamikannu and also his family members. But at no point of time Swamikannu has asserted his undivided interest in the entirety of 48.48 acres. 19. Another aspect which the courts below considered is being that Swamikannu has executed a Will dated 11. 1965 bequeathing all his properties. But the Will had not been produced by the contesting 12th claimant to prove that the suit property has been dealt with by Swamikannu in the said Will. 19. Another aspect which the courts below considered is being that Swamikannu has executed a Will dated 11. 1965 bequeathing all his properties. But the Will had not been produced by the contesting 12th claimant to prove that the suit property has been dealt with by Swamikannu in the said Will. In other words it is sought to be contended with certain amount of force that Swamikannu had never treated the purchase under Ex.B.1 as his own and his heirs were never been in possession of the property. The courts below have drawn adverse inference against 12th claimant for not producing the last Will and testament of Swamikannu. 20. The aspect of exclusive possession of the entire 48.48 acres have been taken into consideration and the courts have found that Guruswami Naidu and his two sons continued in exclusive possession as seen from Exs. A.5, A.6, A.9, and A.10, to A.13. Further the entire extent of 48.48 acres have been divided among Guruswamy Naidu and his sons as seen from Ex.A.3 dated 6. 1966. The properties allotted in the partition Ex.A.3 had been managed by the family members of Guruswamy Naidu after partition under Ex.A.4. 21. On a consideration of the entire evidence, the conduct of parties, the possession, the various acts of dealing with the property by Guruswamy Naidu, the two sons and other family members, the two courts have held that Swamikannu had never exercised any right over any portion of the property including the property acquired and Ex.B.1 is a benami purchase. The two courts have accepted the motive for the purchase under Ex.B1 and also were satisfied with the explanation offered by the claimants 1 to 11 with respect to the production of original deed Ex.B.1. Further the lower appellate court found that Swamikannu has no wherewithal to purchase the 1/4th undivided share in the entire 48.48 acres under Ex.B.1 dated 3. 1948 as he was only an employee as Cashier in Rangavilas Bus Service on a salary starting from Rs.30 during the year 1936 which increased gradually in course of subsequent two decades. 21. Though Swamikannu was employed in Rangavilas Bus Service belonging to Guruswamy Naidu and his sons, admittedly there were lorry permits which stood in the name of Swamikannu benami for the Proprietor of Rangavilas Bus Company, Guruswami Naidu and others. 21. Though Swamikannu was employed in Rangavilas Bus Service belonging to Guruswamy Naidu and his sons, admittedly there were lorry permits which stood in the name of Swamikannu benami for the Proprietor of Rangavilas Bus Company, Guruswami Naidu and others. It is obvious that Swamikannu was considered to be a man of confidence by Guruswamy Naidu and his sons. It is to be pointed out that the admission of the witnesses examined on behalf of the 12th claimant is also fatal to her case. They have admitted that Swamikannu was never in possession and his successor also was never in possession. They were not aware whether there were wells, whether there are pumpsets, whether the land is under cultivation or not and they also admitted that for more than 12 years no income had been shared between Guruswamy and others and even after the death of Swamikannu no income had been shared by Guruswami Naidu with the 12th claimant. 22. The above material evidence had been considered by the two courts below and they have come to the right conclusion that the purchase of 1/4th undivided share in 48.48 acres under Ex.B.1 is a benami and all the relevant materials had been taken into consideration by the two courts below in this respect I do not find any perversity in their conclusion nor it could be said that the conclusions are not supported by evidence nor this Court could interfere sitting in second appeal. No case has been made out for interference in this second appeal. 23. The first question of law framed by this court has to be answered against the appellant/claimant No. 12 as the two courts below have concurrently found that Ex.B.1 is a benami purchase in the name of deceased Swamikannu for the benefit of Guruswamy Naidu and his family members, who was the employer of the deceased Swamikannu. 24. The second question of law with respect to the prescription of title by adverse possession will not arise in the light of finding that Ex.B1 is a benami purchase though the trial court has given a finding it is not necessary to go into the second question as the real owners always continued in possession and Swamikannu was never in possession and he had never exercised any right of ownership over the property. 25. The two questions are answered as above. 25. The two questions are answered as above. The Second Appeal fails and it is dismissed, but without costs.