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2011 DIGILAW 90 (KER)

Narasimhan Namboodiri v. Ganapathi Namboodiri

2011-01-20

HARUN UL RASHID

body2011
JUDGMENT Harun-UL-Rashid, J . 1. Substantial questions of law formulated in the second appeal at the time of admission are as follows: i) Whether on the facts pleaded and the circumstances proved in the case taken along with the admissions of the plaintiff himself, the transaction evidenced by Ext.A2 could at all be found to be a sham transaction and whether the decision of the lower court is sustainable? ii) Whether the plaintiff is entitled in law to raise any claim of title and possession when the major portion of the properties (plaint B schedule being only a lesser part of it) were acquired by the State from the possession of the defendant, comspensation in respect of the the acquired portion was paid to the defendant without any protest from the plaintiff? iii) It is brought out in evidedence that the transaction evidenced by Ext.A2 forms part and parcel of mutual transfers between the plaintiff, his father, Easwaran Namboodiri, the defendant and their brothers, Govindan Namboodiri and Kesavan Namboodiri, all of which has taken place on 13.2.1981. Under such circumstances whether the plaintiff is at all entitled to contend that one of such mutual transfers alone evidenced by Ext.A2 is a sham transaction? iv) Whether the plaintiff is barred in law from contending that the transaction evidenced by Ext.A2 is a sham transaction in view of the decision in O.S.No.101/87 as affirmed by A.S.No.65/89 whereunder it was found that the other transactions entered into on 13.2.1981 between the plaintiff, his father and other brother and of which the plaint transaction forms a part are found to be real and genuine? v) The motive with which the transaction evidenced by Ext.A2 was resorted to being admittedly to defeat the ceiling provisions of Kerala Reforms Act, which is prima facie opposed to public policy, whether the plaintiff is entitled to any reliefs in a court of law? During the course of hearing the following substantial questions of law are formulated: i) Whether mutual execution of documents as part of family settlement is not sufficient consideration for the documents executed by one in favour of the other? ii) Whether the consideration in a family settlement being expectation that such an arrangement or settlement will result in establishing or ensuring amity and goodwill among the relations, in such situation whether Ext.A2 can be termed as a sham document? ii) Whether the consideration in a family settlement being expectation that such an arrangement or settlement will result in establishing or ensuring amity and goodwill among the relations, in such situation whether Ext.A2 can be termed as a sham document? iii) If a document (Ext.A2 in this case) is treated as sham, and on the faith of that document other documents are executed, will not the whole scheme of family settlement fail? 2. The defendant in O.S.No.63 of 1987 on the file of the Munsiff Court, Payyannur is the appellant. The appeal is directed against the judgment and decree in A.S.No.20 of 1993 on the file of the Sub Court, Payyannur. Suit was filed for a declaration that sale deed dated 13.2.1981 is executed as a sham document and was not intended for the enjoyment of the property by the defendant and for recovery of plaint 5 schedule property excluding 15 cents. The trial court held that the sale deed executed by the plaintiff in favour of the defendant was not intended to dispose of the beneficial interest therein and therefore as per Section 81 of the Indian Trust Act the defendant had to hold the property for the benefit of the plaintiff from the date of Ext.A2 sale deed. The court held that Ext.A2 sale deed was executed by plaintiff in favour of the defendant on 13.2.1981 as a sham transaction and that by the repeal of Section 81 of the Indian Trust Act and as per Section 7 of the Benami Transaction (Prohibition) Act, 1988 though the transaction was not intended to be acted upon the interest of the plaintiff automatically transferred to the name of the defendant and therefore the plaintiff is not entitled to get a declaration as prayed for For the above said reasons the trial court dismissed the suit. The appellate court held that the benefit of the Benami Transaction (Prohibition) Act is not available to the defendant and therefore the plaintiff is entitled to a decree as prayed for. The lower appellate court granted a decree for recovery of possession of plaint B schedule property. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 3. The facts of the case are as follows: The total extent of plaint A schedule property is 4 acres and 33.5 cents, Plaint A schedule contains three items. The lower appellate court granted a decree for recovery of possession of plaint B schedule property. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 3. The facts of the case are as follows: The total extent of plaint A schedule property is 4 acres and 33.5 cents, Plaint A schedule contains three items. Item No.l is 1.07 acres, item No.2 is 1.06 acres and item No.3 is 1.60 acres respectively in three different survey numbers. Plaint B schedule property is item No.3 of plaint schedule excluding 15 cents. The defendant is residing in the residential building situated in the said 15 cents. Recovery is sought in respect of B schedule property having an extent of 1.60 acres excluding 15 cents. 4. Plaintiffs case is that though the plaint schedule properties were owned by the plaintiff, and that plaint B schedule is a part of plaint A schedule property. Defendant is the younger brother of the plaintiff. On 13.2.1981 the plaintiff had executed and registered a sale deed in respect of plaint A schedule properties as a sham transfer in favour of the defendant. Originally, the plaint averment shows that the plaintiff challenged the sale deed on the ground that it is a benami transaction. Subsequently, the plaint was amended and necessary averments were inserted substituting the nature of the transaction describing the transaction as a sham transfer. 5. The plaintiffs case is that Ext.A2 sale deed dated 13.2.1981 is a sham transfer not intended to be acted upon. The consideration shown in the sale deed is Rs.2,000/-. There was no necessity to demand or pay consideration for the document as it was only a sham document It is also alleged that the requisite stamp paper was purchased and the document was prepared and registered by the plaintiff at his own expenses for his own purpose. The plaintiff wanted to purchase a property with improvements without exceeding the ceiling limit of the land in his possession. It is also alleged that the plaintiff was in possession and enjoyment of the property taking usufructs from the properties. The plaintiff wanted to purchase a property with improvements without exceeding the ceiling limit of the land in his possession. It is also alleged that the plaintiff was in possession and enjoyment of the property taking usufructs from the properties. It is averred in the plaint that when the plaintiff was out of station on 16.6.1984, the defendant with the connivance of another person entered into the bed room of the plaintiff and forcibly took away the title documents in respect of plaint A schedule properties and original of Ext.A2 title deed executed in favour of the plaintiff which were placed in the almirah. It is further averred that on the basis of the consent letter given by the defendant in respect of item Nos. 1 & 2 of A schedule property, Government has acquired the property for Naval Academy, that though the plaintiff objected the sale of the properties, the defendant has not obliged and that though the defendant has agreed to give half of the amount obtained as compensation from the Government and to re-convey the remaining extent of land in favour of the plaintiff he has not complied with the promise. It is further averred that since the defendant had not complied with the promise, the plaintiff cancelled the sale deed dated 13.2.1981 by executing a cancellation deed dated 17.2.1987, that the plaintiff had issued a notice dated 27.2.1989, that defendant subsequently, had trespassed upon plaint B schedule property and reduced it into his possession. On the basis of the above said averments, suit was filed for a declaration and recovery of possession. 6. On the basis of the above said averments, suit was filed for a declaration and recovery of possession. 6. In the written statement filed by the defendant it is inter alia contended that the sale deed was executed in favour of the defendant for proper consideration, that even before the execution of the said sale deed the defendant has constructed a shop building in item No.3 as consented by the plaintiff, that the properties were handed over to him on the date of execution of the sale deed, that the original document was handed over to t he defendant on the date of execution of the sale deed, that the structure in item No.3 was later converted into a concrete building, that item Nos.1 & 2 of plaint A schedule properties were acquired by the Government while the property was in the possession of the defendant and that the defendant received compensation for the acquisition. The defendant also denied the averment in the plaint that the sale deed was executed in the name of the defendant as a benami document and that there was no necessity either to demand or pay consideration at the time of transaction. It is also contended that on the same date, i.e., on 13.2.1981, the plaintiff had executed other documents in favour of his other brothers and father and that they were in possession of the properties as per the documents. The defendant also denied the plaint averment that the defendant had forcibly took possession of the title documents kept in the almirah while he was out of station and further averment that the defendant had agreed to reassign the remaining extent of item No.3 of plaint A scheudle properties excluding 15 cents and item Nos 1 & 2. 7. The evidence in this case consists of oral evidence of PW1, DW1 and Exts.A1 to A8 and B1 to B15. 8. It is a fact that 6 deeds were executed on 13.2.1981 as between the plaintiff, his father and his brothers and they were registered on 21.2.1981. These documents covered the properties of the Illam and the plaint schedule items are covered by Ext.A2 sale deed executed in favour of the first defendant. The dispute is regarding the manner of acquisition of these properties, the real nature of the transaction and the intention of the parties. 9. The plaintiff and defendants are brothers. These documents covered the properties of the Illam and the plaint schedule items are covered by Ext.A2 sale deed executed in favour of the first defendant. The dispute is regarding the manner of acquisition of these properties, the real nature of the transaction and the intention of the parties. 9. The plaintiff and defendants are brothers. Earlier, they were residing together. Originally, in the plaint it is averred that the document was executed in the name of the defendant as benami document. Subsequently, the plaint was amended inserting the averment that the transaction effected by the plaintiff in favour of the defendant in respect of the plaint schedule property is a sham transaction not acted upon. It is the case of the plaintiff that the consideration for the transaction shown as Rs,2,000/- in the document was not paid by the defendant. According to the plaintiff the properties were not handed over to the defendant. In the plaint it is also pleaded that the defendant had agreed to reassign the property other than the 15 cents covered by the residential house. I have perused the contents of Ext.A2 sale deed. Going by the recitals in Ext.A2 registered sale deed the plaintiff conveyed the plaint schedule properties in favour of the defendant for a consideration mentioned therein. The property now sought to be recovered is admittedly in the possession of the defendant. The plaintiff sought for recovery of the property on the ground that Ext.A2 sale deed is not intended to be acted upon and is a sham document. It is a fact that Ext.A2 sale deed covers entire items 1 to 3 of plaint A schedule property but, the prayer in the suit is only to recover plaint B schedule property which is one among the items, that too excluding 15 cents wherein the house of the defendant is situated. No reasons are stated for excluding 15 cents in plaint B schedule property. Items 1 & 2 was acquired by the government and admittedly compensation amount was received by the defendant. From the evidence on record it is seen that the plaintiff had not claimed the compensation paid in respect of item Nos.1&2. If the property belongs to the plaintiff and the sale deed is a sham document definitely the plaintiff could have claimed the entire compensation awarded for acquisition of item Nos.1&2. From the evidence on record it is seen that the plaintiff had not claimed the compensation paid in respect of item Nos.1&2. If the property belongs to the plaintiff and the sale deed is a sham document definitely the plaintiff could have claimed the entire compensation awarded for acquisition of item Nos.1&2. Moreover, no reasons are stated for not claiming recovery of portions of item No.3 wherein the house of the defendant is situated. The conduct of not claiming the compensation amount or not seeking recovery of the entire property in the hands of the defendant would go to show that the claim made in the suit by the plaintiff is without any bonafides. The explanation of the plaintiff that the defendant has agreed at the intervention of his mother and others to pay half of the compensation amount received is not supported by any evidence. The said explanation will go to show that the transaction has been effected and the document was acted upon and the defendant was in possession of the properties and that the two items of properties were acquired by the Government from the defendant. Though the aforesaid explanation was made, theplaintiff has not chosen to examine his mother or the so called mediators in order to show that the defendant has agreed to pay one half of the compensation. This circumstance would go to show that Ext.A2 transaction has been acted upon and the grounds urged for the declaration of title and recovery of possession cannot stand and the explanation offered are to escape from the situation. 10. The courts below did not accept the contention of the plaintiff that when the properties were assigned by Ext.A2 sale deed the defendant had agreed to reassign the properties at any time when demanded, also cut out the root of the plaintiffs case that the transaction evidenced by Ext.A2 is a sham transaction. 11. The courts below failed to consider the fact and impact of execution of 4 other documents in favour of his brothers and father. More or less for the very same relief the plaintiff filed O.S.No.101 of 1987 before the same court against the father. The said suit was for declaration that the sale deed dated 13.2.1981 executed in favour of the father does not confer title and the right of the document is restricted to take income from the property. More or less for the very same relief the plaintiff filed O.S.No.101 of 1987 before the same court against the father. The said suit was for declaration that the sale deed dated 13.2.1981 executed in favour of the father does not confer title and the right of the document is restricted to take income from the property. The suit was filed for a declaration that the properties covered by the sale deed in favour of his father is a sham transaction and for consequential injunction against father from alienating or causing obstruction in any way in dealing with the property in the suit. 12. The learned counsel for the appellant pointed out that on the same day namely, 13.2.1981 four documents were executed by the plaintiff including Ext.A2 in favour of his father and brothers and two documents were executed by his brothers in favour of the plaintiff. In the said suit the very same plaintiff contended that the assignment deed in favour of his father is a sham document not intended to be acted upon. 13. I have perused the judgment dated 4.4.1997 in S.A.No.527 of 1991 which arises from the decree and judgment in O.S.No.101 of 1987. The learned counsel for the appellant has produced the judgment in S.A.No.527 of 1991 for reference. The said judgment shows that the suit filed by the plaintiff against the father was dismissed finding that the assignment deed executed on 13.2.1981 is not a sham document and that Ext . A1 is a genuine document by which valid title has been conveyed, I have already stated that the said suit was filed on the very same averments like the averment in the present suit. The contention of the plaintiff in that suit that mere consideration was paid for the assignment deed, was also repelled by the trial court and held that the assignment deed is duly supported by consideration and the sale is binding on the plaintiff. The plaintiff preferred A.S.No.65 of 1989 before the District Court, Thalassery. The first appellate court confirmed the decree and judgment passed by the trial court and dismissed the appeal. The second appeal No.527 of 1991 was preferred against the dismissal of the first appeal. This court examined the contentions of both sides in detail. The plaintiff preferred A.S.No.65 of 1989 before the District Court, Thalassery. The first appellate court confirmed the decree and judgment passed by the trial court and dismissed the appeal. The second appeal No.527 of 1991 was preferred against the dismissal of the first appeal. This court examined the contentions of both sides in detail. Confirming the decree and judgment under appeal this Court held as follows; "Thefirst question to beconsidered is whether Ext.A1 can be treated as a sham document. The contention of the learned counsel for the appellant is that there is no consideration in support of Ext.A1 and being a document without consideration Ext.A1 is not intended to be acted upon being a sham document. The argument that Ext.A1 is a sham document is only to be rejected because it forms part of a family settlement covered by six documents and as a result of that settlement, some documents were executed in favour of the plaintiff also and mutual execution of the documents as part of the family settlement is sufficient consideration for the documents executed by one in favour of the other - the consideration in a family settlement being the expectation that such an arrangement or settlement will result in establishing or ensuring amity and goodwill among the relations. (See the decision in M.R. Aryamurthi v. M.L. Subbaraya - AIR 1972 SC 1279 ). There is yet another reason why Ext.1l cannot be treated as sham. If Ext.A1 is treated as sham, the whole scheme of family settlement will fail because it is on the faith of Ext.A1 document, the other documents are executed. So, the question of consideration of one document alone does not at all arise. The aforesaid contention of the appellant that Ext.Al is a sham transaction without supported by consideration is therefore rejected". This Court held that the contention of the plaintiff that the assignment deed is a sham document is only to be rejected because it forms part of a family settlement and as a result some documents were executed in favour of the plaintiff also and mutual execution of the documents as part of the family settlement is sufficient consideration for the documents executed by one in favour of the other - the consideration in family settlement being the expectation that such an arrangement or settlement will result in establishing or ensuring amity and goodwill among the relations. This Court held that all those documents which includes Ext.A2 in this case are executed as a family settlement and as a result of that settlement, some documents were executed in favour of the plaintiff also and mutual execution of the settlement deed is sufficient consideration for the consideration executed by one in favour of the other. For the aforesaid reasons the contention that Ext.A2 is a sham document and that it is not supported by consideration has no merit and must fail. The very fact that these documents were executed on the very same day between the father and brothers which was found to be family settlement, this Court in the connected suit filed against the father also belied the contentions raised by the plaintiff in the present suit. 14. The plaintiff as PW1 deposed before the court that 5 documents were executed on 13.2.1981. As PW1, he admitted that he filed a suit against his father for recovery of the property alleging that the transaction is a sham document. PW1 also admitted that the suit was dismissed and the appeal preferred as A.S.No.65 of 1989 also stands dismissed. The second appeal preferred by him challenging the dismissal of the suit was dismissed by this Court by judgment dated 4.4.1997. The said second appeal was disposed of during the pendency of the present appeal. Therefore there was no occasion for the appellant in this case to produce the judgment in S.A.No.527 of 1991 which has become final. On a perusal of the judgment in S.A.No.527 of 1991 would also show that besides father, the present appellant was also a party in the suit and appeals. As PW1 the plaintiff admitted that the acquisition proceedings in respect of item Nos.l & 2 commenced in the year 1982 and compensation was paid in the year 1984. He admitted that the compensation was paid to the defendantand that he did not claim compensation. He also admitted that he did not raise any objection before the Panchayath when the defendant reconstructed the house, compound wall and well. As PW1 he also spoke about the possession of the property by the defendant. However, he deposed that the property was conveyed on the understanding that the same will be returned to the plaintiff at any time. He also testified that the defendant had stolen the original title deed in the year 1984. As PW1 he also spoke about the possession of the property by the defendant. However, he deposed that the property was conveyed on the understanding that the same will be returned to the plaintiff at any time. He also testified that the defendant had stolen the original title deed in the year 1984. But, he did not lodge any complaint before the police nor did take any action to recover the deed, He also admitted that the defendant reconstructed the building and was in possession of the property on the strength of Ext.A2 sale deed. As PW1 the plaintiff also admitted that he had knowledge about the reconstruction of the building and the compound wall at the relevant time, He also admitted that there was litigation between him and another brother. The plaintiff as PW1 also deposed that he had remitted land tax subsequent to Ext.A2 sale deed but, none of the receipts were produced before the court. He deposed that the receipts were also stolen along with the original sale deed. 15. Ext.A5 is the notice issued by the plaintiff. It is stated in Ext.A5 that the sale deed was executed as a benami transaction that since the property to be recovered, cancellation deed was executed in the year 1987 (marked as Ext.A4). The statement in Ext.A5 is contrary and inconsistent with the claim now set up in the plaint. In the plaint the contention of the plaintiff is that Ext.A2 sale deed is a sham document never acted upon. In Ext.A5 notice it is stated that Ext.A2 sale deed Is a benami transaction and since he wanted back the property he informed the defendant that he had executed a cancellation deed. The statement in Ext.A5 indicates that the plaintiff intend to recover the property. Ext.A8 is the reply notice sent by the appellant/defendant. In the reply he has stated that the property was transferred by virtue of Ext.A2 sale deed, that the original of the title deed and the property was put in his possession on the date of sale deed, that he is paying tax and is in possession and enjoyment of the property. It is also stated therein that some items of properties were acquired by the Government and that he had received compensation and that the balance property is in his possession and enjoyment. The reply notice is dated 11.3.1987. It is also stated therein that some items of properties were acquired by the Government and that he had received compensation and that the balance property is in his possession and enjoyment. The reply notice is dated 11.3.1987. It is further stated that subsequent to the sale deed he had constructed a concrete building and is residing in the property. 16. On a perusal of the oral and documentary evidence, it is seen that the plaintiff had not adduced any evidence in support of his contention that Ext.A2 sale deed is a sham document. Except the interested testimony of PW1 no evidence was adduced which would go to show that Ext.A2 sale deed is not intended to be acted upon and in fact not acted upon. The possession of the sale deed with the defendant was explained by the plaintiff stating that the defendant had stolen the original sale deed from his bed room when he was out of station. The plaintiff as PW1 deposed before the court that he had not lodged any complaint regarding the alleged theft. The plaintiff also did not adduce any evidence to prove that the defendant had stolen the sale deed. Likewise, there is no evidence adduced on his part to show that he continues to possess and enjoy the property. At same time, the facts, circumstances and evidence adduced by the defendant/appellant would prove that he acquired the right in the property from the date of Ext.A2 sale deed. The circumstance that compensation was paid to the defendant for A schedule items1 & 2 on acquisition would prove that all the propertiescovered by Ext.A2 sale deed was in the possession and enjoyment of the defendant from the date of Ext.A2. When examined as PW1 the plaintiff deposed that he did not claim the compensation awarded in respect of the said items. If Ext.A2 sale deed is a sham document never intended to operate, definitely the plaintiff alone would claim compensation and he alone is entitled to receive the compensation. The further fact that the original sale deed was in the custody of the appellant/defendant is another circumstance which would go to show that Ext.A2 sale deed was acted upon. The defendant cannot dispute the contents of Ext.A2 registered sale deed. The recitals in Ext.A2 sale deed show that the plaintiff handed over the properties to the defendant. The further fact that the original sale deed was in the custody of the appellant/defendant is another circumstance which would go to show that Ext.A2 sale deed was acted upon. The defendant cannot dispute the contents of Ext.A2 registered sale deed. The recitals in Ext.A2 sale deed show that the plaintiff handed over the properties to the defendant. It is an admitted case that 5 deeds were executed on the same day between the father and his sons. In the connected suit filed against the father all the courts including this Court found that the said sale deed is not a sham document and that theexecution of the said sale deed and other deeds including Ext.A2 sale deed in this case form part of a family settlement and the result of that settlement, some documents are executed in favour of the plaintiff also and further held that mutual execution as part of family settlement is sufficient consideration for executing one document in favour of the other the consideration in family settlement being the expectations that such an arrangement or settlement will result in establishing or ensuring amity and goodwill among the relations. Tax receipts produced by the defendant namely, Exts.B2 to B8 would also show that the defendant is paying tax during the relevant period. The tax receipts produced are for the period from March 1984 to September 1990. Exts.B9 & B10 are the plan and site plan of the house in item No.3 submitted by the defendant in March 1985. Ext . B11 is the permission letter issued from the executive officer of the Panchayath dated 5.3.1985. Exts.B12 & B13 dated 7.3.1987 are the buiiding permit and plan issued by the Panchayath. The said documents produced by the defendant also show that he is in possession and enjoyment of item No.3 pursuant to Ext.A2 sale deed. As I said earlier, item Nos.l & 2 were acquired by the Government during 1982-84. The suit itself is for recovery of B schedule which is item No.3 property less 15 cents wherein the house of the defendant is situated. In the plaint it is pleaded that: after the issuance of notice on 15.3.1987 the defendant had trespassed upon B schedule property and reduced it into his possession. The suit itself is for recovery of B schedule which is item No.3 property less 15 cents wherein the house of the defendant is situated. In the plaint it is pleaded that: after the issuance of notice on 15.3.1987 the defendant had trespassed upon B schedule property and reduced it into his possession. Apart from the pleading as stated above the plaintiff failed to adduce any evidence to show that he continued to possess and enjoy the property till 15.3.1987 and further that the defendant had trespassed upon the property and reduced it into his possession during March 1987. Since he failed to adduce any evidence regarding his possession till March, 1987 it may be assumed that the said averment in the plaint is inserted without any bonafides for the purpose of filing the suit. The plaintiff has not explained how the defendant came into possession of the property if Ext.A2 is a sham document. 17. The trial court as well as the appellate court failed to consider the relevant facts, circumstances and evidence. The approach of the courts below and the findings entered are without considering the relevant materials, facts and circumstances. Without considering the relevant materials the trial court found fault with the defendant and held that the circumstance indicate that the defendant had not paid any consideration. for the transaction and inadequacy of the consideration also shows that if it was a real transaction, the plaintiff would not have assigned such extent of land for a meager consideration. The trial court also found that the amount of compensation paid for acquisition of item Nos.1 & 2 probabilises that the plaintiff would not have assigned the properties for a meager amount of Rs.2,000/- The trial court refused to rely on Exts.B1 to B4 produced by the defendant and held that these documents would not in any way imply that Ext.A2 sale deed was executed for valid consideration. The trial court also found fault with the defendant for not explaining how he came into possession of Ext.A2 document, These are reasons stated by the trial court for holding that Ext.A2 is a sham document. The trial court did not analyse the facts and circumstances leading to the execution of Ext.A2 document The evidence would go to show that the defendant came into possession of the properties from the date of Ext.A2. The trial court did not analyse the facts and circumstances leading to the execution of Ext.A2 document The evidence would go to show that the defendant came into possession of the properties from the date of Ext.A2. The facts, circumstances and evidence I have discussed in detail in the preceding paragraphs would go to show that Ext.A2 is a genuine transaction. The trial court also did not consider the fact that there was no explanation at all on the part of the plaintiff as to how the defendant got custody of the document and possession of the property. Instead of placing onus on the piaintiff the trial court observed that the defendant has not explained how he came into possession of the document. In fact the definite case of the plaintiff is that the defendant had stolen the document from his bedroom for which he has not adduced any evidence. All other circumstances including execution of 5 documents on a particular day which was found to be a family arrangement was also not taken note of by the trial court. The court dismissed the suit holding that in view of the repeal of Section 81 of the Indian Trust Act, though the transaction was not intended to be acted upon, interest of the plaintiff automatically got transferred to the defendant and therefore the plaintiff is not entitled to get a declaration as prayed for. According to the trial court Section 81 of the Indian Trust Act enjoins the assignee to hold the property for the benefit of the transferor and that by an assignment under Section 81, actually, there is no vesting of property on the assignee. The trial court proceeded as if Section 81 of the Indian Trust Act is applicable. The trial court examined the question as to whether repeal or Section 81 of the Indian Trust Act will have the effect of a transfer of interest of a person over a property which he has not actually transferred as per the assignment deed and held that by the repeal of Section 81 of the Indian Trust Act though the transaction was not intended to be acted upon the interest of the person automatically transferred to the defendant. Therefore the plaintiff is not entitled to a declaration as prayed for. 18. Therefore the plaintiff is not entitled to a declaration as prayed for. 18. The appellate court held that the defendant has not challenged the finding of the trial court that Ext.A2 document is a sham transaction not acted upon. The appellate court held that the defendant has not filed any appeal or cross appeal against the finding of the trial court that Ext.A2 is a sham document. The said finding was recorded by the lower appellate court without understanding the law on the subject. It is well settled by a catena of decisions by the Apex Court as well as different High Courts that Section 96 & 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively. The Apex Court in Banarsi and others v Ramphal ( AIR 2003 SC 1989 ) held that "Itis settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. The Apex Court explained the principle following the decisions reported in ( AIR 1967 SC 1470 ) ( AIR 1971 SC 374 ) and ( AIR 1974 SC 1126 ). In the decision reported in Smt.Ganga Bai v. Vijay Kumar and others( AIR 1974 SC 1126 ) the Apex Court held that" no appeal can lie against a mere finding for the simple reason that the Code does not provides for any such appeal. In the decision reported in Nalakath Sainuddn v. Koorikadan Sulaiman ( 2002 (2) KLJ 382 ) it is held that" aggrieved party means person feeling aggrieved by ultimate decision". Under Sections 96 & 100 of the Code of Civil Procedure it is well settled that no appeal or second appeal will lie against any adverse finding and appeal will lie only against a judgment and decree. The trial court passed a decree and judgment dismissing suit. The defendant is not aggrieved by the dismissal of the suit. Therefore, he cannot be blamed for not filing any appeal. In fact the defendant cannot file any appeal against the dismissal of the suit. The trial court passed a decree and judgment dismissing suit. The defendant is not aggrieved by the dismissal of the suit. Therefore, he cannot be blamed for not filing any appeal. In fact the defendant cannot file any appeal against the dismissal of the suit. The lower appellate court did not examine the real nature of the transaction in order to find whether the transaction is a genuine one or a sham transaction. The lower appellate court observed that there is already a finding that the transaction in the present suit is a sham transaction and that the finding is not challenged. In fact, the whole case set up by the defendant is that the plaintiff is not entitled to any relief prayed for in the plaint and he seriously disputed the plaint averments and contentions raised by the plaintiff in support of his plaint allegations. Without discussion the appellate court also observed that the finding of the trial court in this respect seems to be on a well considered ground and that this being so, I do not find any reason to interfere with the finding of the trial court. The lower appellate court examined whether, the finding of the trial court that, in view of repeal of Section 81 of the Indian Trust Act and by Section 4 of the Benami Transaction (Prohibition) Act the interest of the plaintiff automatically transferred to the defendant and whether therefore, the plaintiff is entitled to get the reliefs prayed for. The lower appellate court held that the definition of benami transaction in the Act excludes from its purview a sham transaction. The lower appellate court considered the difference between the benami transaction and a sham transaction and held that the benefit of the benami transaction is not available to the defendant therefore the plaintiff is entitled to get a decree as prayed for. The lower appellate court also did not appreciate the facts, circumstances and evidence and failed to examine the relevant materials in order to find as to what is the nature of transaction covered by Ext.A2 sale deed. The lower appellate court, after finding that the nature of the transaction as sham, not challenged by filing an appeal, the court proceeded to confirm the finding without examining the propriety and legality of the findings entered by the trial court. The lower appellate court, after finding that the nature of the transaction as sham, not challenged by filing an appeal, the court proceeded to confirm the finding without examining the propriety and legality of the findings entered by the trial court. The provisions of the Indian Trust Act and Benami Transaction Act are not germane for consideration in the facts, circumstances and pleadings in the case. The courts below are expected to examine the question as to whether Ext.A2 is a sham document or not. If the courts finds that Ext.A2 is a sham document the plaintiff is entitled to the reliefs prayed for, if otherwise, the suit shall end in dismissal. Instead of examining the question involved in the suit, both courts rests its conclusion on the provisions of Indian Trust Act and Benami Transanction (Prohibition) Act in order to extend the reliefs to the plaintiff. 19. The Apex Court in Madhukar D.Shinde v. Tarabai Aba Shedage ( 2002 (2) SCC 85 )held that" judgment in a previous suit between same parties is a relevant piece of evidence if it has a material bearing on the controversy arising for decision in the current suit". Based on the decision of this Court in S.A.No.527 of 1991 filed by the very same plaintiff against his father and the present defendant, the learned counsel invited the attention of this Court to the decision reported in Mamleshwar Prasad and another v. Kanahajya Lal( AIR 1975 SC 907 ). In paragraph 8 of the said decision the Apex Court held as follows: 8. Finally it remains to he noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind". Therefore, the decision in second appeal No.527 of 1991 is binding on the parties. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside. The decree passed by the trial court dismissing the suit is restored. No order as to costs.