JUDGMENT ( 1. ) This is defendant's second appeal who has lost from both the Courts below as the suit for possession filed by plaintiff has been decreed and the first appeal which was filed by defendant has been dismissed by the impugned judgment and decree. ( 2. ) Plaintiff-Thakurlal filed a suit on 5-1-1980 in the trial Court on the averments that defendant is his licensee and residing in the suit house in that capacity. Despite plaintiff asked defendant to vacate the suit house she declined to do so as a result of which he sent a notice through his counsel dated 11-9-1997 to her by terminating her licence. This notice was denied by her on incorrect grounds on 27-9-1979. The averments made in the reply are totally false and by basing these false facts she has denied the ownership of plaintiff on the suit property. Hence, a suit for recovery of possession has been filed by further claiming mesne profit @ Rs.50/- per month. The defendant by filing the written statement refuted the plaint averments and specifically pleaded that plaintiff is not the owner of the suit house but right from beginning since when the land was purchased on which the suit house has been constructed, her exclusive money has been used. Indeed, she firstly bought the land and thereafter constructed the house on it. The amount of consideration as well as the construction cost of the house has been borne exclusively by her only and hence, she is the owner of the suit property, although the sale deed has been executed in the name of plaintiff because both of them were having very sweet and cordial relations, but, later on it became strained. ( 3. ) Further it has been pleaded in para-3 of the written statement that after the suit house was constructed, the plaintiff himself wrote a document (dated 1-8-1974) in his own handwriting and signed it admitting that the plot on which the suit house has been constructed, although was purchased in his name, but, the money was given by defendant as well as cost of construction of the house was also borne by her. Hence, it has been prayed that the suit be dismissed. ( 4. ) The learned trial Court framed necessary issues and after recording the evidence of the parties decreed the suit. Hence, it has been prayed that the suit be dismissed. ( 4. ) The learned trial Court framed necessary issues and after recording the evidence of the parties decreed the suit. The first appeal which was filed by defendant has been dismissed by the impugned judgment and decree. ( 5. ) In this manner this second appeal has been filed by the appellant- defendant. ( 6. ) This Court on 25-2-2000 admitted this second appeal on the following substantial questions of law : "1. Whether the finding recorded by the courts below on the question of purchase of plot and construction of house by the respondent from out of the funds provided by the appellant is perverse in face of the statements of the two attesting witnesses and the clear admission made by the respondent in exhibit D/1 ? 2. Whether the lower Appellate Court committed a grave error of law in holding that the grievance of the appellant regarding rejection of her application under Order XIII, Rule 2, Civil Procedure Code cannot be considered without an application under Order XLI, Rule 27, Civil Procedure Code having been made in appeal and that failure to move such an application is indicative of the fact that the said document is not considered important by the appellant? 3. Whether the courts below committed a grave error of law and procedure both in rejecting the applications for consequential amendment and for admission of additional document moved by the appellant after the respondent was allowed to amend the plaint? 4. That, the judgments and decrees passed by the courts below are contrary to law and unwarranted by the facts and circumstances of the case?" The contention of Shri Pavecha, learned senior counsel for the appellant is that looking to the admission of plaintiff himself when he appeared in the Court as PW-1 and stated that the document (Ex.D-1) has been written in his own handwriting and he signed it which contains his admission that the entire consideration amount was given by defendant to him and not only this she also gave entire money which was incurred in the construction of the suit house and if that would be the position, learned two Courts below erred in substantial error of law in decreeing the suit of plaintiff. Learned senior counsel submits that it is borne out from the record that relationship of plaintiff and defendant was just like husband and wife and on account of love and affection, defendant who was in government job and was a teacher, gave her hard self-acquired money to the plaintiff to purchase a plot and thereafter to construct the house on it. It has also been put forth by him that plaintiff was a married person having one son and daughter and after his death his L.Rs have been brought on record and they are respondents, although later on his widow had also died and her name has been deleted from the suit cause title. Since plaintiff was a teacher in school and in absence of any other evidence that he was having any other source of income that after maintaining his family he could purchase the plot and construct the house, it can be inferred that plaintiff and defendant were having live-in relationship and the defendant gave her entire money to plaintiff; firstly to purchase a plot and thereafter to construct the house on it. The factum of giving entire money by defendant has been so admitted by the plaintiff in the document (Ex.D-1) and if that would be the position, learned two Courts below erred in holding that plaintiff is the owner of the suit house. ( 7. ) Learned senior counsel further submits that indeed the transaction was benami and in the name of plaintiff, firstly the land was purchased and thereafter the house was constructed. To bolster his submission, learned counsel has invited my attention to the attesting witnesses to the sale deed (Ex.D-1), namely, Gangaram (DW-2) and Nanda (DW-3) who in their singular voice have stated that the entire money was given by defendant to plaintiff to purchase the land and to construct the house and the transaction of giving money took place in their presence. ( 8. ( 8. ) By submitting his argument on the substantial question of law No. 2 and 3 it has been put forth by learned senior counsel that arguments were heard by learned trial Court on 10-2-1982 and date 18-2-1982 was fixed for pronouncement of the judgment, but, on this date an application under Order VI, Rule 17, Civil Procedure Code was submitted by plaintiff to amend the plaint which was allowed on 6-3-1982 and in consequence to the amendment, the defendant also filed an application to amend her written statement which was partly allowed and partly rejected. The defendant along with the application to amend her written statement filed one more application under Order XIII, Rule 2, Civil Procedure Code along with a document, but that application was not allowed by the learned trial Court. The contention of learned senior counsel is that learned First Appellate Court has not accepted the prayer to allow the application under Order XIII, Rule 2, Civil Procedure Code as well as to allow that part of the amendment application which has been partly rejected on the ground that no application under Order XLI, Rule 27, Civil Procedure Code was filed by the appellant and that order of learned trial Court rejecting the application was not assailed by filing revision application before this Court. Learned counsel submits that in a regular appeal under section 96 Civil Procedure Code all the interlocutory orders are open and can be looked upon by learned First Appellate Court. In this context, learned counsel has invited my attention to section 105, Civil Procedure Code and hence it has been put forth by leaned counsel that learned First Appellate Court contrary to the law has rejected the prayer of the defendant which was very much material so as to arrive a correct decision of the case. On these premised submissions, it has been put forth by learned counsel that this appeal be allowed and by setting aside the judgment and decree passed by learned two Courts below the suit of plaintiff be dismissed. ( 9. On these premised submissions, it has been put forth by learned counsel that this appeal be allowed and by setting aside the judgment and decree passed by learned two Courts below the suit of plaintiff be dismissed. ( 9. ) On the other hand, Shri Kochatta, learned counsel appearing for the L.Rs of plaintiff-respondent argued in support of the impugned judgment and submitted that learned two Courts below have recorded a pure finding of fact that the land on which the suit house has been built upon was bought by the plaintiff from his own income and he himself got constructed the house in question from his own funds and this is a pure finding of fact which cannot be interfered in this second appeal. In this context, he has placed reliance on the decision of Supreme Court, Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar, AIR 1999 SC 2213 and Gian Kaur vs. Raghubir Singh, 2011(3) MPLJ (S.C.) 271 = (2011) 4 SCC 567 . Learned counsel for the respondent further submits that witnesses to document (Ex.D-1) in which the alleged admission of plaintiff is being asserted by the defendant, has been examined by her. Hence, she cannot place reliance on that document. ( 10. ) Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed. Regarding Substantial Question of Law No.1 On bare perusal of the entire plaint, the factum of execution of document dated 1-8-1974 making admission therein that defendant gave the entire money to purchase the plot on which the suit house has been constructed and not only this she also gave the entire money to construct the suit house, has been totally concealed by the plaintiff, although he has admitted in his testimony when he appeared as PW-1 in para-12 of his cross-examination that he was having knowledge of the execution of the said document (Ex.D/1). In para 13 of his cross-examination he has specifically admitted that at the time of filing of the suit he was having the knowledge of the execution of this document which was executed by him. In para 13 of his cross-examination he has specifically admitted that at the time of filing of the suit he was having the knowledge of the execution of this document which was executed by him. Although he has given certain explanation in his evidence that because his brother was quarrelling with him in respect of this house, therefore, it was pacified and suggested by defendant that if plaintiff would write some document in her favour that document would be used as a shield to protect him from his brother. Hence, from this piece of evidence of his, this could be inferred that plaintiff and defendant were having very sweet and cordial relations with each other otherwise a lady who is a stranger to the plaintiff would not have so said. In the plaint (para 4) itself the plaintiff has pleaded that right from very beginning he was having cordial relationship with the defendant and in the reply to this pleading the defendant in her written statement (Para 3) has categorically pleaded and admitted that she was having cordial relations with plaintiff and under the said faith the sale-deed was got executed in the name of plaintiff, although it has also been pleaded by her that by playing fraud upon her this sale- deed was executed in the name of plaintiff. ( 11. ) It is well settled in law that while deciding civil cases the preponderance and probability in the facts and circumstances of that particular case is having a vital and important role in order to arrive a correct decision to the case. In the present case, an unmarried lady (however lacks of morality) would never come forward by saying that she is having illicit relations with a married person having his own children and therefore in very guarded words the defendant has pleaded in para-3 of her written statement that she was having very sweet and cordial relations with the plaintiff. But it can be inferred from surrounding circumstances that they were living together like husband and wife. Later on, when an application was filed by her in the trial Court under Order XIII, Rule 2, Civil Procedure Code along with a document dated 11-10-1975 written in the handwriting of plaintiff as she so says in the said application, the factum of living like husband and wife has been admitted by the plaintiff in the said document. Later on, when an application was filed by her in the trial Court under Order XIII, Rule 2, Civil Procedure Code along with a document dated 11-10-1975 written in the handwriting of plaintiff as she so says in the said application, the factum of living like husband and wife has been admitted by the plaintiff in the said document. ( 12. ) The matter is to be examined from this angle also that both plaintiff and defendant are the employees of State Government being teacher in the school and to get rid off from the departmental enquiry and to avoid complications of losing the government job if the relationship is disclosed, expressly she did not expose the relationship in the written-statement. Right from very beginning the stand of the defendant is that, indeed she is the owner of the suit property because in the reply to the notice of plaintiff dated 11-9-1997 (Ex.P-7) she sent her reply on 27-9-1979 through registered post (Ex.P-8) in which she has stated that relations were quite cordial between them and in lieu of that relationship she entrusted the entire amount to the plaintiff; firstly to purchase the plot and thereafter to construct the suit house. Admittedly in the suit house she is residing. The defendant did not marry and it is borne out from the evidence as well as of the pleadings that relationship between the plaintiff and defendant was quite cordial right from very beginning, although it became strained before the institution of this suit. ( 13. ) Indeed, in all fairness, the plaintiff should have pleaded this fact in his plaint that he wrote a document with an admission in it that defendant gave her money to purchase the plot and to construct the suit house. Thus, the plaintiff has not come with clean hands had tried to conceal the reality. ( 14. ) The factum of execution of document (Ex.D-1) dated 1-8-1974 making admission in it by plaintiff in respect of giving the entire consideration as well as the cost of the construction of the house by the defendant is admitted by plaintiff in his testimony. Apart from this, both the attesting witnesses to the sale-deed (Ex.P-1) namely Gangaram (DW-2) and Nanda (DW-3) have categorically stated that the entire money was paid by defendant to purchase the plot and to construct the suit house. Apart from this, both the attesting witnesses to the sale-deed (Ex.P-1) namely Gangaram (DW-2) and Nanda (DW-3) have categorically stated that the entire money was paid by defendant to purchase the plot and to construct the suit house. Indeed in order to prove the hallmark and authenticity of the sale- deed that by his own funds he purchased the plot and constructed the suit house, the plaintiff was required to examine these witnesses because he is relying upon the sale-deed and is claiming his ownership on the suit house by virtue of this sale deed. True, one of the attesting witnesses Nanda (DW-3) firstly has said that the entire money was given by the defendant, but, later on he has also stated that it was jointly constructed by the parties. There is no evidence on record that the plaintiff who was teacher and who was having his own family; having wife and two children as they were brought on record as LRs after his death, could purchase a plot and to construct a house after maintaining his family. Since the matter in dispute is that whether the suit house is of plaintiff or of defendant, according to me, the plaintiff was required to prove by placing cogent documentary evidence on record in this regard, but, no document in this regard has been filed by the plaintiff. Since there is an admission of the plaintiff in document (Ex.D-1) in respect of the payment of the entire money to purchase the land and to construct the suit house by defendant I am of the view that this admission of his, has dismantled his entire case. No doubt, it is true that in this document (Ex.D-1) plaintiff has abandoned his claim on the suit property and has relinquished all his rights in the suit house and therefore, this document should have been registered under the Registration Act, but, the admission made by the plaintiff in respect of payment of entire money by defendant in this document is admissible. The Full Bench of this Court in Sardar Amar Singh and another vs. Surinder Kaur, 1975 MPLJ (FB) 633 = 1975 JLJ 667 has held that under section 49 of the Registration Act a document which is compulsorily registerable, if not registered, it could be used for proving collateral transactions. The Full Bench of this Court in Sardar Amar Singh and another vs. Surinder Kaur, 1975 MPLJ (FB) 633 = 1975 JLJ 667 has held that under section 49 of the Registration Act a document which is compulsorily registerable, if not registered, it could be used for proving collateral transactions. Hence, not only nature of possession of the defendant which has accrued in her not by this document, but as she was possessing the suit house as owner much prior to the execution of this document, can be looked upon and also for the purpose of admission of plaintiff that the entire money was given by defendant can be taken into consideration to prove his admission. Hence, it can be inferred that on account of cordial and sweet relations between plaintiff and defendant, the defendant gave the entire money to plaintiff to purchase the plot and thereafter to construct the suit house. ( 15. ) The Supreme Court in Jaydayal Poddar (deceased) through L.Rs and another vs. Mst Bibi Hazra and others, 1974 MPLJ (S.C.) 20 = AIR 1974 SC 171 , in para-6 has laid down certain guidelines on the basis of which the benami transaction can be tested and they are :- (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. By testing these guidelines on the touchstone and anvil of the present factual scenario, this Court finds that the source of money from which the plot was purchased and the suit house was constructed is of defendant as there is admission in the document (Ex.D-1) by the plaintiff and the execution of which is not disputed by him in his testimony. Admittedly, defendant is possessing the suit house in question since the time it was constructed. Admittedly, defendant is possessing the suit house in question since the time it was constructed. The motive for giving the transaction a benami colour is also apparent since it is proved from the pleadings and surrounding circumstances that the relationship between plaintiff and defendant was quite cordial and the conduct of the defendant, since right from very beginning she is residing in the suit house it can be inferred that the transaction was benami. Although the plaintiff has come forward that defendant was residing as licencee, but, there is no document in this regard. Hence, the decision of Supreme Court Jaydayal Poddar (supra) is squarely applicable in the present case. This decision has been further relied upon by Supreme Court in another decision Bhim Singh (dead) by L.Rs and another vs. Kan Singh, AIR 1980 SC 727 . ( 16. ) In order to cover-up the admission of plaintiff in respect of payment of money by defendant when it was highlighted during the course of final arguments in the trial Court which were heard by learned Trial Judge on 10-2-1982, it appears that in order to wash-out the admission and to dispel himself from the clutches of said admission, an application for amendment was submitted by the plaintiff at that stage of the suit when the trial Court reserved the case for pronouncing the judgment, explaining the admission made by the plaintiff. Thus, it is hereby held that the transaction was benami and although the sale-deed was executed in the name of plaintiff Thakurlal, but, entire consideration as well as the cost of the construction of suit house was borne by the defendant. ( 17. ) In the light of aforesaid discussions, the decision of Supreme Court Kondiba Dagadu (supra) and Gian Kaur (supra) placed reliance by learned counsel for the respondent are not applicable. ( 18. ) The substantial question of law No. 1 is thus answered that the finding recorded by the two courts below on the question of purchase of plot and construction of house by the respondent from out of funds provided by the defendant-appellant is perverse on face of the statement of two attesting witnesses to the sale-deed (Ex.P-1) and the admission made by the respondent in document (Ex.D-1). Regarding Substantial Questions of Law No. 2 and 3 After the amendment application of plaintiff was allowed by learned Trial Court on 6-3-1982 the defendant filed application to amend her written statement in consequence and along with the amendment application she also filed an application under Order XIII, Rule 2, Civil Procedure Code on 22-3-1982 along with a document with an averment that this document was also written in the handwriting of plaintiff in which it is written that they are living as husband and wife and the suit house is of defendant as she gave entire money to purchase the plot and to construct the house. In the document it has also been mentioned that the amount has been withdrawn by her from G.P.F. account and this document was executed on 11-10-1975. But, this application has been rejected by learned trial Court on 25-3-1982 and allowed the amendment application of defendant in part and the averment made in the amendment application in respect to the execution of the document dated 11-10-1975 written by defendant which was filed by defendant along with the application under Order XIII, Rule 2, Civil Procedure Code was rejected. The learned First Appellate Court did not accept the contention of defendant in the appeal on the ground that the order dated 25-3-1982 was not assailed by defendant by filing review application under section 115, Civil Procedure Code before this Court and further no application under Order XLI, Rule 27, Civil Procedure Code was submitted. To me, the learned senior counsel for the appellant has rightly placed reliance on section 105, Civil Procedure Code wherein the legislature has authorised the person aggrieved by the judgment of trial Court to set forth any error, defect or irregularity in any order, affecting the decision of the case, as a ground of objection in the appeal and therefore, the appellate Court ought to have taken into consideration the validity of the order dated 25-3-1982 rejecting the application of defendant under Order XIII, Rule 2, Civil Procedure Code as well as that part of the application for amendment which was rejected by the Trial Court. At this juncture, the powers of Appellate Court conferred by Civil Procedure Code, under section 107 are also to be taken into account. At this juncture, the powers of Appellate Court conferred by Civil Procedure Code, under section 107 are also to be taken into account. According to this provision, the Appellate Court shall have same power and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Therefore, under this section also the learned First Appellate Court was empowered to decide the application under Order XIII, Rule 2, Civil Procedure Code. Looking to the controversy and the point involved in the case, learned trial Court should have allowed the application under Order XIII, Rule 2, Civil Procedure Code and ought to have taken the document on record since the matter was opened only on account of the plaintiff because he filed an application to amend his plaint when the case was reserved for passing the final judgment. Similarly, that part of the application of defendant for amendment which has been rejected by the trial Court should have been allowed because the amendment was in consequence to the amendment made by the plaintiff and rebutting his averment. ( 19. ) The substantial questions of law No. 2 and 3 are, thus, answered in favour of appellant and against the respondent that without filing any application under Order XLI, Rule 27, Civil Procedure Code, those applications of defendant which were rejected by the trial Court should have been considered and decided by learned First Appellate Court. However, since question No. 1 has been decided in favour of appellant and suit is being dismissed, in consequence of answering substantial questions of law Nos. 2 and 3 in favour of appellant, the case is not being remanded to learned trial Court. Regarding Substantial Question of Law No. 4 : ( 20. ) In the light of the answering substantial questions of law Nos. 1, 2 and 3, this question need not be answered. Since first question of law is answered in favour of appellant, therefore, suit of plaintiff fails and is hereby dismissed. ( 21. ) Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned two Courts is hereby set aside and it is hereby held that defendant is the owner of the suit property and the suit of plaintiff stands dismissed with cost throughout. ( 21. ) Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned two Courts is hereby set aside and it is hereby held that defendant is the owner of the suit property and the suit of plaintiff stands dismissed with cost throughout. Counsel fee according to the Schedule, if pre-certified. Appeal allowed.