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2007 DIGILAW 464 (UTT)

Devi Prasad v. Smt. Janak Dulari and others

2007-08-27

PRAFULLA C.PANT

body2007
Judgment – This Second Appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and order dated 15-12-1992, passed by III Additional District Judge, Dehradun, in Civil Appeal No. 10 of 1992, whereby the judgment and decree dated 10-12-1991, passed by the trial court (Civil Judge, Dehradun), in Original Suit No. 534 of 1990, dismissing the suit, is affirmed. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that one C.A. Wilson transferred the property in suit, known as 'Joy Villa' in Village Jakhan, Rajpur Road, Dehradun, vide registered sale deed dated 18-05-1948 in the name of Baroo Mal (father of defendant No.1 Jagat Prasad) and Inder Sain (uncle of defendant No.1 Jagat Prasad). In a Suit No. 150/57, instituted by Punjab and Sindh Bank Ltd. against Baroo Mal and Inder Sain, a decree for recovery of loan was passed and when aforesaid property was sought to be auctioned by the decree holder (Punjab and Sindh Bank), after making payment of the decretal amount, the property was got saved. Thereafter, Suit No. 370 of 1984 was filed by Radha Kishan, son of Barro Mal (now defendant) for partition of aforesaid property against defendant No .1 Jagat Prasad and others, in which present plaintiff Devi Prasad was also a co-defendant. The said suit was dismissed by the trial court (Civil Judge, Dehradun) vide its judgment and order dated 07-03-1989 with the finding that the sale deed dated 13-05-1948 executed in favour of Barro Mal and Inder Sain was a benami transaction, which was got executed by Jagdish Prasad (defendant No.1). Thereafter, Suit No. 534/1990 (from which this appeal has arisen) was instituted by Devi Prasad (son of Inder Sain) for partition of the aforesaid property claiming 1/6th share in the property. 4. Defendant No.1 Jagat Prasad (since deceased) the main contesting defendant, in his written statement, has denied the plaint allegations and pleaded that plaintiff has no share in the property in suit. In the additional pleas it is stated that sale deed executed in the year 1948 by Mr. C.A. Wilson transferring the property in suit in the name of Baroo Mal and Inder Sain was a benami transaction and it was defendant No.1, who infact, paid the consideration and purchased the property. In the additional pleas it is stated that sale deed executed in the year 1948 by Mr. C.A. Wilson transferring the property in suit in the name of Baroo Mal and Inder Sain was a benami transaction and it was defendant No.1, who infact, paid the consideration and purchased the property. It is further pleaded by this defendant that it is the defendant No.1, who paid all the taxes of the property in suit and spent money in maintaining the property. It is further pleaded by defendant Jagat Prasad that when the property was set to be auctioned in the decree passed in favour of Punjab and Sindh Bank in suit of 1957, it was this answering defendant, who paid the decretal amount and got released the property from attachment. It is further pleaded that name of answering defendant Jagat Prasad was entered as owner in the Municipal record in which property in suit is shown as property No. 163/ 1, Rajpur Road, Dehradun. A legal plea is also raised by defendant No. 1 in his written statement that the suit is barred by principal of res judicata, as the rights between the parties has been finally determind in a decree passed in Original Suit No. 370 of 1984. In the written statement of defendant No.2 Smt. Dayawati also, it is pleaded that the owner of the property in suit was only defendant No.1 Jagat Prasad and none else. The share of the plaintiff is denied by this defendant. However, Radha Kishan (defendant No.5), Sushil Kumar (defendant No.6) and Jai Prakash (defendant No. 10) filed their joint written statement, in which most of the allegations in the plaint are admitted. It is also admitted by these three defendants that plaintiff has 1/6th share in the property. 5. The trial court framed issue No.1, as under: Whether suit is barred under Section 11 of the Code of Civil Procedure, on the basis of principle of res judicata, as alleged in the written statement of defendant No.1? 6. The above issue was decided by the trial court in affirmative vide its order dated 1012-1991, holding that the suit is barred by principle of res judicata. The trial court by said order rejected the plaint under Order VII Rule 11 of Code of Civil Procedure. 6. The above issue was decided by the trial court in affirmative vide its order dated 1012-1991, holding that the suit is barred by principle of res judicata. The trial court by said order rejected the plaint under Order VII Rule 11 of Code of Civil Procedure. Aggrieved by said judgment and decree, passed by the trial court, Civil Appeal No.1 0 of 1992 was preferred by the plaintiff Devi Prasad, son of late Baroo Mal, before the District Judge, Dehradun. Said appeal appears to have been transferred to the court of III Additional District Judge, Dehradun, who after hearing the parties, dismissed the appeal vide its impugned judgment and order dated 15-12-1992, upholding the order passed by the trial court that the suit is barred by principle of res judicata. Hence, this Second Appeal was filed by the plaintiff before the Allahabad High Court on 13-04-1993. The appeal was admitted by said Court on 15-04-1993. The appeal is received by transfer to this Court, under Section 35 of the U.P. Reorganization Act, 2000, for its disposal. 7. Substantial questions of law On which this appeal was admitted by the Allahabad High Court on 15-04-1993, read as under: 1. Whether view of the courts below that suit was barred under the provisions of Section 11 of Code of Civil Procedure, is erroneous? 2. Whether the provisions of Order VII Rule 11 of Code of Civil Procedure have wrongly applied by trial court, while deciding the suit? 3. Whether the courts below have erred in law in failing to consider the effect of provision of the Benami Transactions (Prohibition) Act, 1988, on decree in suit No. 370 of 1984 ? Answer to all the three substantial Questions of law: 8. Admittedly, property in suit was purchased in the year 1948 from one C.A. Wilson in the name of Baroo Mal and Inder Sain. Plaintiff/appellant is son of Baroo Mal. It is also not disputed that in an earlier Suit No. 370 of 1984, instituted by Radha Kishan (S/o Inder Sain) against Jagat Prasad (present defendant) and others, for partition, a finding was recorded that the property in suit was purchased 'benami' in the name of Baroo Mal and Inder Sain by defendant No. 1 Jagat Prasad. Present plaintiff was also party to said suit as co-defendant. Present plaintiff was also party to said suit as co-defendant. No appeal was filed by any party against the judgment and decree passed on 07-03-1989, passed in Suit No. 370 of 1984. 9. The question before this Court is, whether, the decree passed in said suit bars the present suit under Section 11 of the Code of Civil Procedure, 1908, or not? Section 11 of the Code provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. 10. Learned counsel for the plaintiff/appellant argued that the decree passed in Suit No. 370 of 1984 was a collusive decree and the plaintiff / appellant is not bound by such decree. The contention of learned counsel for the appellant is not supported by the record. There is nothing on the record indicating that the decree passed in Suit No. 370 of 1984 was a collusive decree. Rather, the judgment and order dated 07-03-1989, passed in said suit shows that the present defendant Jagat Prasad contested said suit with tooth and nail against the plaintiff of said suit and the suit was dismissed with detailed reasons running into 22 pages (as is clear from the certified copy of the judgment and order dated 07-03-1989, passed in suit No. 370 of 1984, filed as paper No. 42-C in the lower court record). Merely for the reason that plaintiff in said suit, did not file an appeal against said decree, does not make it a collusive decree. It is also evident from the record that the issues involved in the subsequent suit filed by appellant are same to those involved in the earlier suit No. 370 of 1984 filed by Radha Kishan. Radha Kishan son of Inder Sain was sailing on the same boat on which the appellant Devi Prasad (son of Baroo Mal) is sailing. It is also evident from the record that the issues involved in the subsequent suit filed by appellant are same to those involved in the earlier suit No. 370 of 1984 filed by Radha Kishan. Radha Kishan son of Inder Sain was sailing on the same boat on which the appellant Devi Prasad (son of Baroo Mal) is sailing. Both the suits were for partition of the same property and plaintiff (present appellant) was also party in the Suit No. 370 of 1984, as a defendant, as such, the plaintiff I appellant is bound by the finding record, on a issue between the parties in the earlier suit, by the competent court. In Iftikhar Ahmed and others Vs. Syed Meharban Ali and others; reported in AIR 1974 SUPREME COURT 749, it is held by the Apex court that if there was a conflict of interest between the co-plaintiff or co-defendant and it was necessary to decide said conflict of interest, the decision made by the court in former suit would operate as res judicata. Therefore, this court does not find any substance in the submission of learned counsel for the appellant that the suit is not barred by Section 11 of the Code of Civil Procedure. 11. Since, the suit was found barred by law (Section 11 C.P.C.) if the trial court, instead of dismissing the suit, rejected the plaint under Order VII Rule 11 of C.P.C., it does not materially affect the fate of the suit. . 12. Mr. V.B.S. Negi, learned counsel for the appellant vehemently argued that the provisions contained in Section 4 of Benami Transactions (Prohibition) Act, 1988 (Act No. 45 of 1988) are retrospective in nature, as such, the decree passed on 07-03-1989, by the trial court (II Additional Civil Judge, Dehradun) in Suit No. 370 of 1984, is a nullity, as the sale deed executed in 1948 by C.A. Wilson could not have been declared 'benami' after the commencement of the aforesaid Act No. 45 of 1988. 13. It is true that when the former suit No. 370 of 1984 was instituted, the. aforesaid Act of 1988 was not in existence, while when the decree is passed in the aforesaid former suit, the Act had meanwhile come into force. Hon'ble Supreme Court in Mithilesh Kumari and another Vs. 13. It is true that when the former suit No. 370 of 1984 was instituted, the. aforesaid Act of 1988 was not in existence, while when the decree is passed in the aforesaid former suit, the Act had meanwhile come into force. Hon'ble Supreme Court in Mithilesh Kumari and another Vs. Prem Behan Khare; reported in AIR 1989 SUPREME COURT 1247, firstly examined the issue of retrospective applicability of the provision of Benami Transactions (Prohibition)Act, 1988, and held it to be retrospective in effect. In number of cases this decision was followed, including the one in Om Prakash and another Vs. Jai Prakash; reported in AIR 1992 SUPREME COURT 885. However. the iudqment of the Division Bench of the Apex Court reported in Mithilesh Kumari's case (supra) was overruled by the three Judges Bench of the Apex court in R. Rajagopal Reddy and others Vs. P. Chandrasekharan; reported in AIR 1996 SUPREME COURT 238. 14. Section 4 of the Benami Transactions (Prohibition) Act, 1988, reads as under: "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 sMillie 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 section 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 property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. " The above aforementioned Section makes it clear that after the commencement of the Act, no suit would lie to enforce any right in respect of the property held benami against the person in whose name property is held, claiming to be the real owner of such property. It further provides that no defence based on any right in respect of a property held banami, shall be allowed in any suit by a person claiming to be real owner of such property. From sub-section (3) of Section 1 of the aforesaid Act it is also clear that the provisions of Section 4, quoted above, came into force on 19 day of May, 1988 i.e. during the pendency of Suit No. 370 of 1984, which was decided on 07-031989. In view of principle of law laid down in R. Rajagopal Reddy and others Vs. P. Chandrasekharan; AIR 1996 SUPREME COURT 238, whereby the opinion expressed in Mithilesh Kumari Vs. Prem Behari Khare; A.I.R 1989 SUPREME COURT 1247, is overruled, it is clear that the provisions of sub-section (1) and sub-section (2) of Section of aforesaid Act No. 45 of 1988, are not retrospective. That being so, the decree passed by the competent court in Suit No. 370 of 1984 cannot be held to be a nullity. Therefore, this Court does not find any error of law committed by the courts below in dismissing the suit instituted by plaintiff / appellant on the ground that it is barred by Section 11 of the Code of Civil Procedure, 1908. All the three substantial questions of law, accordingly, stand answered. 15. For the reasons as discussed above, this appeal has no force, and the same is liable to be dismissed. The appeal is dismissed. No order as to costs.