A. K. MITRA, J. ( 1 ) THIS second appeal has been preferred by the plaintiff as appellant challenging the judgment dated 9. 6. 1992 and the decree dated 20. 6. 1992 passed by the learned District Judge, Malda in O. C. Appeal No. 2 of 1991 affirming the judgment and decree dated 30. 11. 1990 passed by the learned Munsif, Malda in O. C. Suit No. 200 of 1986. ( 2 ) THIS appeal was heard under Order No. 41 Rule 11 of the Code of Civil Procedure on 11. 1. 1993 by the Hon'ble Division Bench of this High Court and the Hon'ble Division Bench on that passed an order that this appeal will be heard. ( 3 ) THIS appeal arises out of a suit praying inter alia for declaration of title, stay of ex parte decree passed in O. C. No. 159/84, the said decree being obtained in collusion by practising fraud. The plaintiff also prayed for permanent injunction in respect of the suit land. The case as has been made out in the plaint or as transpires that one Sudhir Kr. Majumder and Bimal Kr. Majumder were the joint owners in respect of 097/1. 4th decimal of land in Mouza: Kutum Purbari under Police Station: English Bazar. Both the brothers partitioned the property through a registered deed of partition. By virtue of the said partition Bimal Kr. Majumder became the owner of 0489/1. 8th decimals and out of the said land said Bimal Kr. Majumder sold 3 cottahs of land to the plaintiff which is the suit land herein. ( 4 ) THE plaintiff used to reside previously at Jodupur under P. S. Kaliachak and she was a Hindu woman. The plaintiff's father was a gold dealer. Plaintiff fell in love with the defendant and fled away with the defendant after taking 20/22 bharis of gold and Rs. 5000-6000/- cash from her father's house. Thereafter, the plaintiff married the defendant under Special Marriage Act on 20. 7. 1976. Plaintiff also converted herself as Muslim and known as Zahida Hossain. Thereafter, plaintiff purchased the suit property by four registered deeds for a consideration of Rs. 18,000/ -. Thereafter, she constructed a dwelling house in and over the said land. Two sons were born out of the said wedlock of the plaintiff and the defendant. 7. 1976. Plaintiff also converted herself as Muslim and known as Zahida Hossain. Thereafter, plaintiff purchased the suit property by four registered deeds for a consideration of Rs. 18,000/ -. Thereafter, she constructed a dwelling house in and over the said land. Two sons were born out of the said wedlock of the plaintiff and the defendant. It is alleged by the plaintiff that after the birth of the youngest son the defendant started physical and mental torture upon the plaintiff. It is further alleged by the plaintiff that the defendant fell in love with other woman and he left the suit house. The defendant started residing in a rented house and he took it on rent from Kashir Mistri @ Kajir and he used to stay there with other woman. Thereafter, the defendant caused pressure upon the plaintiff to execute a deed in favour of the defendant in respect of the suit property but the plaintiff refused to do so. The plaintiff also stated that at the end of September 1984 the defendant along with his persons came to the suit house and threatened the plaintiff of dire consequences. Thereafter a village salisi was held regarding the dispute between the plaintiff and the defendant and in presence of village persons defendant executed an agreement in favour of the plaintiff on 30. 9. 1984 in respect of the suit property. It has been further alleged by the plaintiff that she sold. 0160 decimal of land by registered sale deed on 4. 9. 1981 in favour of Md. Eliash and the defendant was the identifier in that deed. It is also alleged by the plaintiff that the defendant committed adultery and is living in a separate house. Thereafter, on 4. 8. 1986 the defendant alongwith some antisocial persons came to the suit house and disclosed that he obtained and ex parte decree in respect of the suit property and he is also trying to evict the plaintiff from the suit house. Thereafter the plaintiff met with her advocate and collected certified copies of O. C. No. 159/84. It is alleged by the plaintiff that the defendant obtained an ex parte decree in O. C. No. 159/84 in collusion with the postal peon and process server of the Court. No notice was served upon the plaintiff in respect of O. C. Suit No. 159/84. It is alleged by the plaintiff that the defendant obtained an ex parte decree in O. C. No. 159/84 in collusion with the postal peon and process server of the Court. No notice was served upon the plaintiff in respect of O. C. Suit No. 159/84. It is claimed by the plaintiff that neither the postal peon nor the process-server tendered to here any summons or registered letter in respect of O. C. No. 159/84. It is further alleged by the plaintiff that the defendant stole rent receipts, stamp receipt from the house of the plaintiff. It is further stated by the plaintiff that she is not a Benamdar of defendant. She is the actual purchaser and the owner of the suit property and as such she has filed the instant suit. ( 5 ) THE defendant contested the suit on filing a Written Statement and the defence case as it transpires from the W. S. that the defendant purchased the suit land in name of plaintiff. He paid the consideration money of Rs. 1800/- in respect of the suit property from his own fund. He further stated that the plaintiff did not purchase the suit property as she had no financial capacity. It is also stated by the defendant that plaintiff's father was not a dealer of gold. It is stated by the defendant that he never used to live with other woman and he is not questionable person. He never committed any act of force upon the plaintiff for the purpose of execution of any deed in his favour. The defendant further stated that he never executed any agreement in the village salisi in favour of the plaintiff in respect of the suit property. It is further claimed by the defendant that notice and summons were duly served upon the plaintiff in O. C. No. 159/84. He never committed any fraud upon the plaintiff for obtaining an ex parte decree in O. C. No. 159/84. It is further stated by the defendant that after marriage the plaintiff and he used to live in a rented house, thereafter, he purchased the suit property in the name of the plaintiff and constructed house thereon. He never committed any fraud upon the plaintiff for obtaining an ex parte decree in O. C. No. 159/84. It is further stated by the defendant that after marriage the plaintiff and he used to live in a rented house, thereafter, he purchased the suit property in the name of the plaintiff and constructed house thereon. Thereafter, the defendant resisted the illegal relation of plaintiff and Latif Mia and as such their relation as husband and wife became bitter and thereafter, the plaintiff threatened the defendant to sell the suit property and as such the defendant filed a suit being O. C. No. 159/84 against the plaintiff. As to maintainability of the suit, cause of action, point of limitation have also taken by the defendant. The defendant accordingly prayed for dismissal of the suit with costs. On he above pleadings the learned trial Judge framed the following Issues:1. IS the suit maintainable in its present form" 2. Is the suit barred by limitation" 3. Is the suit not properly stamped" 4. was the decree in O. C. No. 159/84 fraudulently obtained and void" 5. Was this summons served upon the plaintiff in O. C. No. 159/84" ( 6 ) "was the suit property purchased by the defendant, in benami of the plaintiff" ( 7 ) "is the plaintiff satisfied entitled to get a decree as prayed for" ( 8 ) "to what other relief the plaintiff is entitled"6. The learned trial Judge after hearing the parties dismissed the suit on contest against the plaintiff. The plaintiff preferred appeal against the said judgment and decree passed by the learned trial Judge O. C. Appeal No. 2/91 and the said appeal was also dismissed on contest and hence this second appeal. 7. Before taking up the appeal for the purpose of hearing it is to be seen whether there is any substantial question (s) of law which is or are to be decided in this second appeal. After hearing the learned counsel for the Appellant and the learned counsel for the respondent and on perusal of the records it appears that the following are the substantial questions of law which need be decided in this second appeal. 1. Whether the judgment of the trial Court below as well as the Appellate Court below has been vitiated because of failure to apply proper test of law. 2. 1. Whether the judgment of the trial Court below as well as the Appellate Court below has been vitiated because of failure to apply proper test of law. 2. Whether the Court below rightly put the onus to prove the transaction as benami upon the plaintiff or not. 3. Whether the case of the defendant is hit by section 281a of the Income Tax Act. 4. Whether the earlier judgment is vitiated on account of fraud regarding service. 5. Whether the judgment of both the Courts below are perverse or not. 8. The learned counsel for the appellant submitted that both the Courts below went on wrong when deciding that the suit property purchased in benami and the wife appellant herein is the benamdar of the defendant and wrong application or wrong tests of law have been made by the learned Courts below when observing that the plaintiff could not establish that the transaction that is the purchase of the suit property is not a benami purchase and on the other hand the respondent proved that he has invested the money in purchasing the land and in making construction over there. The learned Courts below did not properly construe the provisions of the Benami Transactions (Prohibition) Act, 1988. The learned counsel for the appellant Mr. Roy Chowdhury further submitted that the trial Court wrongly shifted the onus of the plaintiff to prove that the purchase of the suit property is not a benami purchase. The learned counsel further submitted that both the Courts below failed to construe as to what are the real tests for deciding a transaction whether it is benami or not. The learned counsel Mr. Roy Chowdhury also submitted that the claim of the defendant is hit by the provisions of section 281 (A) of the Income Tax Act. The learned counsel for the appellant also submitted that the trial Court should have considered that the earlier judgment is vitiated on account of fraud regarding service of notice. In support of his contentions the learned counsel for the appellant Mr. Roy Chowdhury relied on the decision reported in 1994 (4) SCC page 243 (Pawn Kr. Gupta v. Rochiram Nagdeo ). In support of his contentions the learned counsel for the appellant Mr. Roy Chowdhury relied on the decision reported in 1994 (4) SCC page 243 (Pawn Kr. Gupta v. Rochiram Nagdeo ). Relying on this judgment the learned counsel submitted that the earlier judgment does not operate as res judicata in the instant case inasmuch as same issues were not decided in the earlier suit and only an incidental question to reach a decision does not operate as res judicata. The learned counsel laid stress on paragraphs 16, 22, 23 and 24 of this judgment which are quoted hereinbelow:"16. The rule of res judicata incorporated in section 11 of the Code of Civil Procedure prohibits the Court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties", and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to each such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed. The decree was not in act against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues. 22. Alternatively, assuming that the finding in the first suit would operate as res judicata, the contention of the respondent that Ext. P-11 void transaction being hit by section 3 (1) of the Benami Act cannot be considered. The trial Court and the first Appellate Court concurrently found that it is not a benami transaction but the High Court interfered with the concurrent finding and held that the transaction is void. Learned Judge of the High Court observed that the finding of the first Appellate Court is contrary to the pleadings of the plaintiff and that the burden of proof had been wrongly placed on the defendant, and that the conclusion was based on considerations which are not germane to the issue. According to the learned single Judge. Learned Judge of the High Court observed that the finding of the first Appellate Court is contrary to the pleadings of the plaintiff and that the burden of proof had been wrongly placed on the defendant, and that the conclusion was based on considerations which are not germane to the issue. According to the learned single Judge. "it is clear from section 106 of the Evidence Act that it was for the respondent to prove that the money was advanced by him because he had the special knowledge of the transaction between him and his vendor. " the High Court held that the appellant failed to prove that the suit building was purchased by him on payment of sale price. 23. All the above three premises adverted to by the High Court are unsupportable. The clear pleading of the plaintiff is that he purchased the suit property as per Ext. P-11 sale deed. The burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P-11 sale deed contains the recital that the sale consideration was paid by the plaintiff to Narain Prasad, the transferror. Why should there be a further burden of proof to substantiate that the recitals in the document are true" The party who wants to prove that the recitals are untrue must bear the burden to prove it. 24. In this context reference to sections 91 and 92 of the Evidence Act, 1872 will be useful. As per the former, in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such matter except the document itself. Section 92 forbids admission of any evidence for the purpose of contradicting, varying, adding to, or subtracting from the terms of such a document. One of the exceptions to the said rule is that any fact which would invalidate the instrument can be proved by adducing other evidence. " ( 9 ) THE learned counsel submitted that in this judgment the Hon'ble Apex Court clearly observed that the burden of proof cannot be cast on the plaintiff to prove that the transaction was not consistent with the apparent tenor of the sale deed. " ( 9 ) THE learned counsel submitted that in this judgment the Hon'ble Apex Court clearly observed that the burden of proof cannot be cast on the plaintiff to prove that the transaction was not consistent with the apparent tenor of the sale deed. In that view of the matter the learned Courts below wrongly placed the onus to prove that the transaction is not a benami transaction on the plaintiff. The learned counsel then relied on a decision reported in AIR 1965 SC page 271 (Kanakarathanammal v. V. S. Loganatha Mudaliar and Anr. ). The learned counsel strongly relied on the observation of the Hon'ble Apex Court made in paragraph 8 of this judgment which is quoted hereinbelow:"8. It is true that the actual management of the property was done by the appellant's father; but that would inevitably be so having regard to the fact that in ordinary Hindu families, the property exclusively to a female member would also be normally managed by the Manager of the family; so that the fact the appellant's mother did not take actual part in the management of the property would not materially affect the appellant's case that the property belonged to her mother. The rent was paid by the tenants and accepted by the appellant's father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly appreciate the effect of the several admissions made by the appellant's father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellant's mother in her own name though the consideration which was paid by her for the said transaction had been received by her from husband. Therefore, we hold that the property had been purchased by the appellant's mother in her own name though the consideration which was paid by her for the said transaction had been received by her from husband. " ( 10 ) RELYING on this judgment the learned counsel submitted that even if the wife was the owner of the properties possession may continue with the husband as a matter of convenience and that does not prove the transaction or the purchase of the suit land or construction of the building over there as benami purchase or benami construction. ( 11 ) THE learned counsel then relied on the judgment reported in AIR 1974 SC page 658 (Vidyadhar v. Usman Gani ). The learned counsel laid stress on the observation of the Hon'ble Apex Court in paragraphs 6 and 7 of this judgment which are quoted hereinbelow:"6. The contesting parties produced their oral and documentary evidence. After examining the evidence, the trial Court held that Laxman Govind Mungi had purchased the suit land benami in the name of his wife Jankibai and it was ancestral property of the joint family consisting of the plaintiffs 1 to 3 and defendants 2 and 3. The findings on the issue about legal necessity and benefit of the estate and other issues were against the first defendant. In the result, the trial Court decreed the suit of the plaintiffs for 17/24 shares in the suit land. Feeling aggrieved with the judgment and decree of the trial Court, the first defendant filed an appeal in the Bombay High Court. The High Court has reversed the judgment and decree of the trial Court and has dismissed the suit of the plaintiffs. The High Court has held that Laxman Govind Mundi did not purchase the suit land and that Jankibai was the real owner of it. The High Court did not accept the plaintiff's plea of the sale being benami. The High Court also held that the sale was for legal necessity and for the benefit of the estate. Hence this appeal by the plaintiffs. 7. The vital issue in this appeal is as to whether Jankibai was the real purchaser the suit land or a mere benamdar of her husband. Laxman Govind Mungi (hereinafter called Laxman ). The High Court also held that the sale was for legal necessity and for the benefit of the estate. Hence this appeal by the plaintiffs. 7. The vital issue in this appeal is as to whether Jankibai was the real purchaser the suit land or a mere benamdar of her husband. Laxman Govind Mungi (hereinafter called Laxman ). For this purpose it is necessary to ascertain whether Laxman had paid the sale consideration mentioned in the sale deed of 1909 to Smt. Satyabhamabai with the intention of becoming the owner of the suit land. Plaintiff's could not give any direct evidence about this matter. Laxman, Jankibai, Annaji and Satyabhamabai were the persons connected with the sale deed. They had died before the plaintiffs commenced their suit. Dattatraya was examined by them as a witness. He has stated that the land was purchased by money provided for by his father, Laxman. He has also said that his mother had no funds to purchase the land and that she came from a poor family. He has tried to show that his father was in affluent circumstances and could purchase the land from his own funds. But the Courts below have not relied on his evidence and we think rightly. He is a partisan witness. He is highly interested in the success of the suit. More, he speaks with two voices. In his statement in the tenancy case No. 37 of 1956 (in which the first defendant was also a party) he had stated: """"the land bearing S. No. 954 is my land""". the said land was purchased by my brother and after her death myself and my brother are the owners. " contrary to this statement, he has now deposed that the land was purchased by his father. The plaintiffs also examined Ram Chandra, son of Annaji. But he has only stated that his father used to do forest business. So his evidence is not at all helpful. " ( 12 ) THE learned counsel submitted that the trial Court wrongly came to the finding that since the appellant/plaintiff was an ordinary employee property cannot be purchased by her father's fund when it has been specifically submitted by the plaintiff that her father was an affluent person and actually her father gave her the money to purchase the land. The learned counsel for the appellant submitted that the trial Court proceeded on wrong footing and merely acted on hypothesis that by coming to a finding that when the plaintiff appellant is a poor worker or employee she cannot purchase any property by paying Rs. 18000/ -. The learned counsel submitted that entire judgment of the learned trial Court is vitiated on wrong applications of law and on wrong test of the legal provisions. ( 13 ) THE learned counsel for the appellant Mr. Roy Chowdhury then relied on a judgment reported in AIR 1987 SC page 1484 (Budhwanti and Anr. v. Gulab Chand Prasad ). The learned counsel laid stress on paragraph 11 of this judgment which is quoted hereinbelow:"11. Coming now to the ground of eviction based on the bona fide requirement of the respondents, Mr. Javali argued that the bona fides of the claim is not established either by the pleadings or the evidence and hence the trial Court and the High Court were in error in sustaining the said ground of eviction. It was pointed out by the counsel that in the plaint there is only a casual statement about the requirement of the shop by the landlord and in the evidence it was not made clear whether the shop was required for expansion of the existing business or for starting a new business venture for the benefit of the younger members of the joint family. The trial Court has discussed the case of bona fide requirement in para 14 of its judgment and has held that the landlord is bona fide in need of the shop to engage two members of the joint family in business. The Appellate Judge has reversed the finding of the trial Court on four grounds, viz. that the tenants were refugees from West Pakistan and had no shop of their own in the town of Gaya, that from the point of comparative hardship it would be the tenants who would suffer more than the landlord by an adverse decision, that the shop occupied by the appellants is only a small portion in a massive building in the occupation of the landlord and that the landlord's requirement of the building was more attributable to a desire to recover possession rather than on account of any genuine need for it. The High Court has pointed out that the Appellate Judge had completely misdirected himself in his approach to the question because of erroneous assumptions of facts as well as law. Admittedly, the tenancy had commenced in 1932 which was long prior to the partition in 1947 and hence there can be no question of the tenant being a refugee from West Pakistan. Likewise, the application of the test of comparative hardship between the landlord and the tenant was an extraneous test because no such test has been prescribed by the Act for going into the reckoning. Then again it was noticed that without any evidence or materials the Appellate Judge has assumed that the main building in the occupation of the joint family is a massive building and that the leased portion constitutes only a negligible area. Likewise the Appellate Judge had no materials to hold that the landlord's requirement of the building was only born out of desire and not on account of any genuine need. Since the Appellate Judge had rendered his findings on the question of bona fide requirement of the shop by the landlord on baseless assumptions and wrong principles of law, the High Court was justified in setting aside the finding of the Appellate Judge even though it was factual in character. It is true in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then High Court will be within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding. Mr. Javali tried to canvass that the Appellate Judge had rendered his finding mainly with reference to the pleadings and the evidence and his incidental references to other factors and circumstances were only to reinforce his conclusion and as such his finding does not suffer from any infirmity or error. We are not perused by this argument because it cannot be predicted as to how far the Appellate Judge's conclusion was influenced by the mistaken tests applied by him to determine the issue. We are not perused by this argument because it cannot be predicted as to how far the Appellate Judge's conclusion was influenced by the mistaken tests applied by him to determine the issue. " ( 14 ) THE learned counsel submitted that where the finding of the trial Court is based on wrong test of law and is based on conjectures then the High Court in a second appeal is permitted to interfere in the said judgment of the trial Court as well as the Appellate Court below. The learned counsel for the appellant, Mr. Roy Chowdhury, further submitted that in this case also the learned trial Judge merely proceeded on the conjectures and the first Appellate Court below being the last Court of fact wrongly interpreted the legal provisions and without scrutinizing the judgment of the learned trial Judge wrongly relied on the findings of the trial Court which merely was based on surmise and conjectures. ( 15 ) THE learned counsel for the appellant then relied on the decision reported in AIR 1940 Cal page (K. K. Das, Receiver v. Sm. Amina Khatoon Bibi and Anr. ). The learned counsel submitted that in this judgment this High Court (Division Bench) relying on section 51 of the Transfer of Property Act observed that where a husband with his costs constructs a building on his wife's land knowing it to be his wife's, the later is entitled to the building. The learned counsel relied on the observations made in this judgment to the extent as indicated hereinbelow:"we have now to consider the legal position. The land belonged to the respondent but the building was erected at the cots of defendant 3 who knew at the time that the land was not his but his wife's. Defendant 3 therefore does not come within the third proposition laid down in 6 WR 228 - a proposition which has been approved by the Judicial Committee of the Privy Council in 56 IA 259. He, defendant 3, could not have claimed compensation from respondent as there was no equity in his favour. He spent money on the structures knowing that the land was not his. The question is whether he has the right to remove the structures. If he has that right, that right must have for its basis his ownership in the structures. He, defendant 3, could not have claimed compensation from respondent as there was no equity in his favour. He spent money on the structures knowing that the land was not his. The question is whether he has the right to remove the structures. If he has that right, that right must have for its basis his ownership in the structures. If he had spent in the bona fide belief that he was the owner of the land or had the right to build he could have claimed compensation or the right to remove the structures. That is what has been laid down all along since 6 WR 228, and the principle entitling a person to compensation has now been given statutory recognition in the case of transferees (section 51, Transfer of Property Act ). In the said case 6 WR 228, three propositions are laid down: (1) Buildings and other such improvements do not by the mere accident of their attachment to the soil became the property of the owner of the soil. (2) If he who constructs the building or makes the improvement on another's land is a mere trespasser he cannot claim compensation from the owner of the soil nor has he the right to remove them. (3) If however he was in possession of the land under a bona fide title or claim of title he can either remove them or obtain compensation for the value of the building or improvement if it is allowed to remain for the benefit of the owner of the soil, the option of retaining the building, etc. , or of allowing removal remaining with the latter. " ( 16 ) IN 56 IA 259 the first and third propositions were approved but opinion was reserved by the Judicial Committee on the second proposition. The Indian decisions however lay down the proposition that in the case of wanton trespass the trespasser has no right to claim either compensation or the right to the materials. In the case before us in view of the relationship between defendant 3 and the respondent we cannot say that defendant 3 was a trespasser on the land within the meaning of the proposition so laid down in the cases. In the case before us in view of the relationship between defendant 3 and the respondent we cannot say that defendant 3 was a trespasser on the land within the meaning of the proposition so laid down in the cases. ( 17 ) THE decision in 6 WR 228 is that the building does not become the property of the owner of the soil by the mere accident of attachment. This proposition lends support to the view that if there be something more, the building would become the property of the owner of the soil. The fact that the husband constructed the building on his wife's land knowing it to be his wife's is in our judgment such an additional and special circumstances which takes the case out of the first general proposition laid down by that Full Bench. The husband never intends in such a case to reserve any right in the structures. He intends to make the habitation, both of himself and of his wife, more comfortable. In (1865)1 HL 129, a case between landlord and tenant, Lord Cranworth L. C. , laid down a principle which can be dissected into two broad propositions and from those two propositions he deducted a third proposition. The first propositions are: (i) if a stranger builds supposing the land to be his own and the real owner perceiving the mistake of the former knows at the time of the expenditure that the land belongs to him and stands by, the Court of equity will not allow the latter to insist on his legal title, (ii) if however the stranger builds upon the land of another knowing it to be the latter's there is no principle of equity which will prevent the latter from claiming his land with the benefit of all the expenditure made on it. ( 18 ) THE learned counsel then relied on the decision reported in 1983 (1) CLJ page 163 (Sudhirindra Coomar v. Smt. Manmohini Coomar ). The learned counsel relied on paragraph 6 of this judgment delivered by the Hon'ble Division Bench of this High Court which is quoted hereinbelow:"6. ( 18 ) THE learned counsel then relied on the decision reported in 1983 (1) CLJ page 163 (Sudhirindra Coomar v. Smt. Manmohini Coomar ). The learned counsel relied on paragraph 6 of this judgment delivered by the Hon'ble Division Bench of this High Court which is quoted hereinbelow:"6. Next we proceed to consider the scope and effect of section 281a of the Income Tax Act, section 281a (I) provides as follows: "no suit to enforce 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 instituted in any Court by or on behalf of a person (hereafter in this section referred to as the claimant) claiming to be the real owner of such property unless (a)the income, if any, from such property has been disclosed in any return of the income furnished by the claimant under this Act, or (b)such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth Tax Act, 1957 (XXVII of 1957), or (c)notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income Tax Officer. " ( 19 ) RELYING on this judgment Mr. Roy Chowdhury submitted that the claim of the respondent is clearly hit by the provisions of section 281a of the Income Tax Act and the respondent cannot make any escape out of these provisions. Lastly, the learned counsel for the appellant submitted that even if there is concurrent finding by the two Courts below the High Court can interfere in certain circumstances and the learned counsel Mr. Roy Chowdhury submitted and relied on judgment of the Hon'ble Apex Court (Hon'ble Three Judges' Bench) reported in 2001 (3) SCC page 179 (Santosh Hazari v. Purushottam Tiwari ). The learned counsel submitted that this judgment of the Hon'ble Apex Court makes the position clear as to what are the questions of law which can be termed as substantial and where even if there is concurrent finding of both the Courts below the High Court can interfere. The learned counsel laid stress on the observations made in paragraphs 14, 15 and 16 of this judgment which are quoted hereinbelow:"14. The learned counsel laid stress on the observations made in paragraphs 14, 15 and 16 of this judgment which are quoted hereinbelow:"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material hearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge for from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling