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2015 DIGILAW 1390 (GAU)

Mintu Kumar Paul v. Nakul Chandra Paul

2015-11-05

N.CHAUDHURY

body2015
JUDGMENT : In this appeal the judgment-and-decree dated 21st June, 2006 passed by the learned Additional District Judge (Ad hoc), Fast-track Court, Biswanath Chariali in Sonitpur in Title Suit 1/2003 decreeing the suit in entirety is called in question by the defendants No.2, 3, 4, 11 and 13. 2) The brief facts involved in this appeal are required to be stated at the threshold. One Nakul Chandra Paul as plaintiff instituted TS 3/1996 in the Court of the learned Assistant District Judge, Tezpur against the State Bank of India as defendant No.1 and his own brothers and sisters as the defendants No.2 to 16 stating in the plaint that a land measuring 2 katha covered by periodic patta No.30 in Charali village under Biswanath mouza in Sonitpur district is originally owned by one Sewprasad Rewani and the said Sewprasad Rewani sold the said land to him by executing a registered sale deed (no.4537/1968) on 28.12.1968 and handed over the possession to him. After coming into possession of the land he obtained mutation in the record of rights and thereafter made constructions of an RCC building thereon. 3) This was brought to the notice of the Biswanath Chariali Town Committee (BCTC) and accordingly name of the plaintiff was recorded as owner of the holding. The plaintiff thereafter claimed to have let out the premises to the State Bank of India (SBI), the defendant 1, and after a few days instructed the SBI to make deposit of the rent in the name of his father viz. Digambar Chandra Paul to meet his personal expenses at the old-age. However, Digambar Chandra Paul was not owner of the land or the house. He died on 7.4.1981 leaving behind him a Will wherein inadvertently he made a mention that the suit land and the house are his own property and bequeathed those in favour of the plaintiff. 4) Plaintiff therefore filed Misc. Case No.110/1981 before the jurisdictional District Judge seeking probate of the will. Defendants No. 4 and 6 appeared and contested the case. The probate application is converted to a proceeding in the form of a regular title suit and numbered as TS No. 14/1983. However the suit came to be dismissed for default on 20.6.1989. Plaintiff filed an application under Order IX Rule 9 of the Code of Civil Procedure seeking restoration of the suit which is numbered as Misc. Case No.8/1989. The probate application is converted to a proceeding in the form of a regular title suit and numbered as TS No. 14/1983. However the suit came to be dismissed for default on 20.6.1989. Plaintiff filed an application under Order IX Rule 9 of the Code of Civil Procedure seeking restoration of the suit which is numbered as Misc. Case No.8/1989. But during this period the defendant No.4 took possession of the share of his ancestral property without the knowledge of the plaintiff for which the plaintiff stopped taking steps in the suit and consequently the Misc. Case No.8/1989 also stood dismissed for default. 5) Subsequently the plaintiff took up the matter with the SBI (defendant 1) for making monthly payment of the rent in his favour but the Assistant General Manager (AGM) of the defendant No.1 asked the plaintiff to produce either a probate or a letter of administration to show that he is entitled to receive the rent to which the plaintiff objected saying that the properties belong to him by purchase. So, there is no question of his obtaining a probate or a letter-of-administration in respect to the same. 6) Even after the death of Digambar Chandra Paul plaintiff claimed to have raised additional construction of about 4500 square feet as extension of the original building of which he is the absolute owner. But defendant No.2 to 6 and 7 to 10 being the legal heirs of Digambar Chandra Paul started claiming the property necessitating plaintiff to file a suit for a declaration of right, title and interest on the property described in the schedule of the plaint and also for a further declaration that he alone is entitled to receive the house rent of the suit premises. However, the plaintiff did not make any prayer for consequential reliefs like recovery of khas possession, injunction or confirmation of possession”. 7) On being summoned defendant No.1 submitted a written statement denying the averments made in the plaint that the plaintiff had let out the suit premises to the SBI. Defendant No.1 categorically asserted that the suit property belongs to Digambar Chandra Paul and it is he who let out the property to the SBI at a monthly rental of Rs. 350/- by executing a registered lease deed in the year 1974. Defendant No.1 categorically asserted that the suit property belongs to Digambar Chandra Paul and it is he who let out the property to the SBI at a monthly rental of Rs. 350/- by executing a registered lease deed in the year 1974. But after the death of the original landlord when the plaintiff claimed the rent but since it is not clear as to whom to pay among all the legal heirs of the original landlord, the defendant No.1 wanted to have some document from a Court for payment of rent to plaintiff. With these averments defendant No.1 prayed for dismissal of the suit. 8) Defendant No.3, 4, 5, 12 and 13 submitted a joint written statement, inter alia, stating that the suit is barred by limitation; that the suit is not maintainable under Section 34 of the Specific Relief Act, 1963. 9) Coming back to the merit of the suit it is the case of defendant No.3, 4, 5, 12 and 13 that as Digambar Chandra Paul was the father of the plaintiff he desired to purchase the suit land from Sewprasad Rewani and register the sale deed in his name, he deputed his son Nakul Chandra Paul with Sewprasad Rewani on 28.12.1968 to the nearby sub-registry office to get a sale deed executed and registered in his name but the plaintiff by influencing and misleading Sewprasad Rewani obtained the sale deed in his name in place of his father Digambar Chandra Paul. Coming to know about this fact when Digambar Chandra Paul pointedly asked the plaintiff as to why he had recorded his name as purchaser of the land, the plaintiff told his father that as the sub-registrar wanted the purchaser to personally appear before him at the time of registration, he did not find a way out and requested the writer to put his name as the purchaser and accordingly the deed was prepared and registered. It is further claimed in the written statement that Digambar Chandra Paul thereafter constructed an RCC building with his money and accordingly mutated his name in the record of BCTC. The holding of the building stood in the name of Digambar Chandra Paul until his death and later the names of all the legal heirs of Digambar Chandra Paul were incorporated in municipal records. The holding of the building stood in the name of Digambar Chandra Paul until his death and later the names of all the legal heirs of Digambar Chandra Paul were incorporated in municipal records. The defendants claimed that Digambar Chandra Paul was the absolute owner of the suit land and house and after his death all the legal heirs including the private defendants became the joint owner of the same. With these averments defendants prayed for dismissal of the plaintiff’s suit with costs. 10) On the basis of the aforesaid rival contentions of the parties the learned trial court framed as many as seven issues, which are quoted below. 1) Whether there is any cause of action in this suit? 2) Whether the suit is barred by limitation? 3) Whether the suit is maintainable u/S. 34 of the Specific Relief Act? 4) Whether the plaintiff is the sole and absolute owner of the suit property or whether the same is ancestral property? 5) Whether the defendant No. 1 is the tenant of plaintiff in respect of the suit property? 6) Whether the plaintiff is entitled to get decree as prayed for? 7) To what other relief or reliefs the parties are entitled? 11) Plaintiff examined as many as three witnesses including himself as PW1. Plaintiff reiterated his averments made in the plaint and maintained that he purchased the suit land vide Exhibit 1(sale deed) from Sewprasad Rewani and thereafter got his name duly mutated in the record of rights vide Exhibit 2. He constructed an RCC building on the suit land and the building was recorded as holding No.77 of Ward No.3 of Biswanath Chariali Town Committee and in this respect a certificate is issued on 8.1.1996 by the BCTC vide Exhibit 3 and the defendant No.1 thereafter took the suit building on rent from him. Exhibits 4 to l1 are the documents to show the correspondence between him and the SBI regarding the tenancy. Defendant No.1 had attorned the plaintiff as its landlord and continued regularly communicating to him regarding the incidents of its tenancy. After the death of his father on 7.4.1981, plaintiff came to know about execution of a Will by his father in respect to the entire movable and immovable properties left behind by him. Defendant No.1 had attorned the plaintiff as its landlord and continued regularly communicating to him regarding the incidents of its tenancy. After the death of his father on 7.4.1981, plaintiff came to know about execution of a Will by his father in respect to the entire movable and immovable properties left behind by him. Be that as it may, by the Will, Digambar Chandra Paul sought to bequeath the suit land and properties in favour of the plaintiff and accordingly plaintiff by filing Misc. Case No.110/1981 made a prayer for probate of the Will. As defendant No.4 appeared and contested the proceeding the Misc. Case was converted in the form of a title suit being Title Suit No.14/1983. At that stage the suit was dismissed for default on 20.6.1989 for which the plaintiff filed an application under Order IX Rule 9 of the Code of Civil Procedure for restoration of the Misc. Case. But as in the meantime the defendant No.4 took possession of his share of the property as per the Will, the plaintiff did not feel it necessary to pursue the Misc. Case and allowed the same to be dismissed for default. Exhibit 12 is the certified copy of the order dismissing the suit while Exhibit 13 is the certified copy of the order of dismissal of the Misc. Case. After the dismissal of the Misc Case, the plaintiff took up the matter with the defendant No.1 by issuing a letter dated 31st March, 1993 (Exhibit 14) asking for monthly rent but as the SBI wanted to have a probate or a letter-of-administration by a reply letter dated 1st April, 1993 (Exhibit 15), he sent another letter (Exhibit 16) informing the bank that as the suit property is his own property by purchase there is no question of a letter-of-administration or a probate. Exhibits 17 and 18 are also two letters to that effect. Plaintiff added that in spite of these correspondence the bank did not make payment of rent for which he had to write yet another letter on 28.6.1994 (Exhibit 19). He claimed that an additional construction of around 4500 square feet is made to the tenanted premises by him after the death of his father and that he maintained an account for such expenditure. He claimed that an additional construction of around 4500 square feet is made to the tenanted premises by him after the death of his father and that he maintained an account for such expenditure. Vide Exhibit 20 he mortgaged the aforesaid properties in favour of the United Bank of India, Tezpur Branch, as guarantor of the loan and vide Exhibit 21, UBI released all the documents in his favour. Plaintiff stated that the Exhibit 22 is the certificate of valuation of the land given by the Assistant Settlement Officer, Naduar Circle. Exhibit 23 is the non-encumbrance certificate while Exhibit 24 is a site plan of the building sketch by the SBI. The original Will is Exhibit 25 while Ext. 26 is a certificate issued by the UBI. The Exhibit 27 is tax-payment receipt dated 28th February, 2003. He further stated that his mother Smti. Premada Paul in her lifetime gave a declaration recognising his right, title and interest on the suit properties and that as the original of this declaration is not available with him he exhibited a certified copy of it as Exhibit 28. According to the plaintiff the tenancy with the defendant 1 was actually a verbal one and that he is not aware of any subsequent tenancy created by his father in favour of the bank. 12) During pendency of the suit, the defendant No.1 informed the Court on 30.5.1998 that it intended to vacate the suit premises and sought to deposit its key with the Court but after objections were raised by the plaintiff, the learned trial court passed an order on 11.3.1999 and appointed the Chairman of Biswanath Chariali Town Committee as Receiver of the suit property and directed the defendant 1 to hand the key over to the chairman. Defendant 1 later vacated the suit premises. 13) Plaintiff claimed to have filed a civil revision petition being CRP No.145/1999 before this Court challenging the order dated 11.3.1999 which was disposed of on 7.5.1999 by accepting Exhibit 29. Exhibit 30 is the order dated 10.1.2000 passed by this Court in Misc. Case No. 151/1999 in the revision petition. The matter was thereafter taken to the Hon’ble Apex Court. Plaintiff claimed that under the aforesaid circumstance he was compelled to file the suit. Exhibit 30 is the order dated 10.1.2000 passed by this Court in Misc. Case No. 151/1999 in the revision petition. The matter was thereafter taken to the Hon’ble Apex Court. Plaintiff claimed that under the aforesaid circumstance he was compelled to file the suit. 14) After filing of his examination-in-chief in the form of an affidavit, plaintiff filed yet another additional examination-in-chief on 19.4.2004 in the form of an affidavit stating that in the last week of February 2004, the defendant No.4 surreptitiously and illegally occupied some rooms of the suit building without any right or authority or direction of a Court. According to plaintiff he came to know about the same only in the last week of April 2004 when he visited the suit premises and found that the defendant No.1 had vacated the suit premises without any information to him and that the Receiver appointed by the Court did not have any right or authority to hand over the key to defendant No.1. 15) PW1 was thoroughly cross-examined by the defendants. When suggestions were put to him that the property actually belonged to Digambar Chandra Paul and the plaintiff incorporated his name in the sale deed by misleading and influencing the vendor, he stated that the Exhibit 2 (jamabandi) is a draft document and it contains the names of all the pattadars of periodic patta No.30 of a land measuring 1 bigha 2 katha 10 lecha. 16) It appears that PW1 admitted in the cross-examination that the defendant No.4 was in possession of a part of the suit premises and he did not take any step either for amendment of the plaint or for getting an appropriate decree in his favour. He could not say when the suit holding was transferred to his name after the death of his father. 17) PW2, Sahabuddin Ahmed claimed to be a friend of the plaintiff and a contractor by profession to have constructed the extended portion of the suit premises after having been authorised and supplied the essential construction materials by the plaintiff, and supervised the work and supplied labourers. 18) In his cross-examination, PW2 admitted that the entire Exhibit 20(work maintenance register) is written in black ink except for a few pages which are written in red ink keeping a few pages blank but he could not remember as to why some pages were kept blank. 18) In his cross-examination, PW2 admitted that the entire Exhibit 20(work maintenance register) is written in black ink except for a few pages which are written in red ink keeping a few pages blank but he could not remember as to why some pages were kept blank. He claimed that he had completed the work before 11.1.1983 when he left for Tezpur and could not say whether the labourers named in Exhibit 20(register) are available in Biswanath Chariali area or not. It appears from the trend of cross-examination that defendants wanted to set up a foundation by saying that PW2 actually did not supervise the work and the Exhibit 20(register) is a subsequently-manufactured account book. 19) Plaintiff examined one Khandan Das as PW3) who brought in the demand collection register of Ward No.6 of the BCTC and proved Exhibit 31(register) and its relevant page which bears the name of the plaintiff at serial No.6. This witness is cross-examined by the defendants in right earnest when he disclosed that in column 3 there is no entry, that he could not say as to whether there is any error or not, that even column 16 was left blank. He could not say who was paying the house tax of the holding for the previous years. 20) Defendant No.4 examined himself as DW1. In his examination-in-chief in the form of an affidavit, he stated that his father Digambar Chandra Paul is the absolute owner and possessor of the suit land along with the building pursuant to purchase in the year 1968. However the purchase is made in the name of plaintiff and the plaintiff by taking advantage of getting sale deed registered in his name, is still claiming title. This witness claimed that Digambar Chandra Paul has paid the actual consideration amount and asked his son Nakul Chandra Paul to register the sale deed in his name but the latter incorporated his name instead and also mutated his name in municipal records. Fact remains that actually Digambar Chandra Paul had taken possession of the land from the previous owner and plaintiff was never in possession of the suit land at any point of time. According to this witness the RCC building on the suit land was constructed by Digambar Chandra Paul with his money and that is why he mutated his name in municipal records. According to this witness the RCC building on the suit land was constructed by Digambar Chandra Paul with his money and that is why he mutated his name in municipal records. Holding No.81/77 of Ward No.3 of BCTC stands in the name of Digambar Chandra Paul and he paid all taxes in his lifetime. Plaintiff had not constructed the RCC building or any other building with his money nor did he record his name in municipal records in respect of this holding. 21) Exhibit B (valuation list) of the holding was exhibited to support this plaint. After construction of the building it is Digambar Chandra Paul who had let it out to SBI as a monthly tenant from 1.11.1970 by executing a written lease deed. Holding No.81/77 was subsequently renumbered as Holding No.77. After the death of Digambar Chandra Paul, the holding was mutated in the names of all the legal heirs of Digambar Ch Paul, including the plaintiff and the defendants No.2 to 16. 22) Exhibit C is a valuation list of the holding dated 29th November, 2004. Exhibit D and E (certificates of the chairman of BCTC) are proved by this witness. He asserted that plaintiff had neither made any construction on the suit land nor did he mutate his name in municipal records. The written statement submitted by the defendant No.1 is exhibited as Exhibit F by the other defendants and the tenancy agreement with the defendant No.1 is exhibited as Exhibit G. This witness denied that plaintiff himself had abstained from appearing in the Misc. Case or the probate proceeding and claimed that plaintiff’s claims are false and fabricated. This witness is basically cross-examined in regard to the records of BCTC. 23) DW2, one Rakhal Ch Sarkar, claims to be a neighbour of both the parties and states that Digambar Chandra Paul had purchased the suit land from the original owner and got possession. He made the construction and let out the suit property to defendant No.1 on monthly rent basis and while possessing the suit land he died in the year 1981 leaving behind the plaintiff and the private respondents as his legal heirs. He claims that he used to visit to the house of Digambar Chandra Paul for reciting the Gita to him. This witness is also cross-examined by the plaintiff side at some length. 24) DW3 is one Mrityunjoy Chakraborty. He claims that he used to visit to the house of Digambar Chandra Paul for reciting the Gita to him. This witness is also cross-examined by the plaintiff side at some length. 24) DW3 is one Mrityunjoy Chakraborty. He claims to be an employee of the plaintiff when he was doing order supply business in the state of Arunachal Pradesh. He states that while coming from and going to Arunachal Pradesh, he used to stay at Biswanath Chariali and has full knowledge of the developments of the suit properties. According to this witness, the plaintiff did never make any construction on the suit land, let alone purchasing the same, and it is the property of his father Digambar Chandra Paul. After the death of Digambar Chandra Paul, all his legal heirs became owners of the suit property. Plaintiff by cross-examining this witness wanted to discredit him saying that while he was originally in the service of the plaintiff he had committed misappropriation and mismanagement for which he had been sacked. Plaintiff wanted to establish that this witness had no knowledge about the actual development with respect to the suit land and came to witness-box to help the defendants. 25) Defendants examined Shri Prasonna Kr Borah, branch manager of Biswanath Chariali Branch of the SBI as DW4 and through him brought in the records. Exhibit F from Tezpur sub-registry. He states that the Exhibit G is the lease deed which is similar to Exhibit 24 adduced by the plaintiff and it appears from this document that the name of the plaintiff originally appearing in the site plan is deleted and thereupon the name of his father was incorporated. This witness is cross-examined on Exhibits 1 to 10 to prove that those documents did not really exist. 26) DW5, Ratul Sarma, an employee of BCTC, brought in Exhibit A(register) to show that the holding No.81 is standing in the name of Digambar Chandra Paul whereas in column 6, the SBI is shown as occupier. The suit building is shown as residence-cum-office. Exhibit 5 is also another holding register. According to this witness names of the defendants are appearing in the new holding No.77 at page 82 of Exhibit J. As this witness came only for production of the documents there is not much effective cross-examination. The suit building is shown as residence-cum-office. Exhibit 5 is also another holding register. According to this witness names of the defendants are appearing in the new holding No.77 at page 82 of Exhibit J. As this witness came only for production of the documents there is not much effective cross-examination. In response to the suggestions put to him he said that the statements made by him in course of the examination-in-chief are not correct. 27) DW6, Thomas Chai, is a typist at the office of the District Judge. He proved Exhibit A (the order in TS No.14/1983) to show that there is a probate proceeding and that the proceeding is dismissed for default. 28) On the basis of the aforesaid materials on record the learned District Judge decided that the suit has cause of action and that the suit is not barred by limitation. But coming to issue No.3(whether the suit is barred under Section 34 of the Specific Relief Act) though necessary ingredients under the said issue are discussed in the first part of paragraph 1, yet no finding is arrived at whether the plaintiff is in a position to claim further relief apart from a bare declaration of title. While the plaintiff categorically stated in his additional examination-in-chief as well as in course of his cross-examination that defendant 4 was in possession of a part of the suit premises he did not make any prayer for recovery of khas possession or confirmation of possession. The learned trial court did not discuss anything in this regard and merely stated that the issue is answered in the affirmative and in favour of the plaintiff. 29) Coming to issue No.4(whether the plaintiff is the sole and absolute owner of the suit property or whether the same is ancestral property) the learned trial court placed reliance on the Exhibits 1(sale deed) and 2(draft jamabandi). In these two documents it is shown that plaintiff is the purchaser but Exhibit 2(certificate of the BCTC) shows that his father Digambar Ch Paul is the owner of the holding. In these two documents it is shown that plaintiff is the purchaser but Exhibit 2(certificate of the BCTC) shows that his father Digambar Ch Paul is the owner of the holding. According to the learned Court there was some contradiction on record but considering the recitals of the exhibit 4 to 11 which are correspondences between the plaintiff and the bank, the learned trial court held that the plaintiff has right, title and interest on the suit land and that he is the sole and absolute owner of the suit premises and it is not an ancestral property of the defendants No.2 to 16. 30) The learned trial court did not discuss the effect of Section 4(3) of the Benami Transactions (Prohibition) Act, 1988 and thus the basic thrust of the case of the defendants that the property belongs to the Hindu Undivided Family has remained untouched. 31) Having decided the aforesaid basic issues in favour of plaintiff the other issues viz. issues No.1 (whether there is any cause of action in this suit), 5(whether the defendant no. 1 is the tenant of plaintiff in respect of the suit property) and 6(whether the plaintiff is entitled to get decree as prayed) are decided in favour of plaintiff. Consequently the whole suit is decreed by the judgment and decree dated 21st June, 2006. It is this judgment which has been challenged in the present appeal only by four defendants as referred to above. 32) Having considered the facts and circumstances and the finding of the learned trial court, it appears, the points for determination in the appeal would be as follows. (i) Whether the suit of the plaintiff is barred by the proviso to Section 34 of the Specific Relief Act. (ii) Whether the findings of the learned trial court as to the title of the suit property are correct. 33) I have heard Shri D. Mazumdar, the learned senior counsel assisted by Shri R. Sarma for the appellant and Shri K.K. Mahanta, the learned senior counsel assisted by Shri P.B. Mazumdar for respondent 1. No one appeared on behalf of respondent 2. 34) Appellant did not implead other defendants in this proceeding. I have perused the lower court records, including the pleadings of the parties and the evidence led by them, both oral and documentary. No one appeared on behalf of respondent 2. 34) Appellant did not implead other defendants in this proceeding. I have perused the lower court records, including the pleadings of the parties and the evidence led by them, both oral and documentary. 35) Section 34 of the Specific Relief Act, 1963 provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. But the proviso to this Section prescribes that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The present suit hinges on the recital of this proviso to Section 34. This is because the plaintiff set up his claim on the basis of the purchase from the original owner Sewprasad Rewani by a registered sale deed dated 28th December, 1968. According to the plaintiff he purchased the land and occupied it exclusively and thereafter made construction thereon. He did not make any mention about the existence of any other legal heirs of his father with respect to this property. He claimed that he let out the property to the State Bank of India and later asked the bank to make payment of rent in favour of his father so as to enable him to defray his personal expenses at the fag end of his life. Plaintiff himself has disclosed in cross-examination that defendant No.4 is in possession of at least a part of the suit premises. It is necessary to further notice that even as per the pleaded case of the plaintiff, the building was under physical possession of defendant No.1(SBI), who, in the capacity of tenant has denied the right of the plaintiff to exclusively receiving the rent. It is necessary to further notice that even as per the pleaded case of the plaintiff, the building was under physical possession of defendant No.1(SBI), who, in the capacity of tenant has denied the right of the plaintiff to exclusively receiving the rent. Such denial by the SBI to make payment of rent in favour of plaintiff is the real cause of action for institution of this suit and so having admitted in his plaint that he is the owner and possessor of the suit land and property plaintiff is entitled to a further relief like confirmation of possession and injunction so that his constructive possession of the property is not disturbed. Such a consequential relief is necessary because after having questioned his exclusive title to the property, the defendant No.1 could have handed over the property in favour of his co heirs, and to preempt the handing over of the tenanted premises to a third party or his brothers and sisters plaintiff was in need of a consequential relief to that extent. Such an apprehension is ultimately found to be correct. 36) State Bank of India, filing an application before the trial court, wanted to handover the key of the tenanted premises to the Court saying that it intended to vacate the tenanted premises, and ultimately the Court appointed a Receiver to accept the key of the tenanted premises to maintain the property in good shape. Even thereafter a necessity for amendment of the plaint and for a further consequential relief became obvious. Plaintiff candidly admitted in course of his cross-examination that he did not file any application for amendment of the plaint after having discovered that the defendant No.4 obtained possession of a part of the property. He further presumed that the key of the suit property may have been handed over to defendant No. 4 by the Receiver. 37) The aforesaid developments only go to show that the learned trial court is in need of ascertaining as to who is really in possession of the land, either on the date of institution of the suit or subsequently, including the date of its disposal. This is because the plaintiff instituted the suit for mere a declaration and subsequently admitted that he is not in possession of the suit land. This is because the plaintiff instituted the suit for mere a declaration and subsequently admitted that he is not in possession of the suit land. A mere declaration does not enable him to enjoy the fruit of the suit property as the property would remain at the hands of somebody else. Plaintiff did not make any prayer for a decree for getting possession from the defendants No.1, 4 and 6 and so the decree obtained by the plaintiff appears to be a mere “paper decree”. Once such position became clear after both the learned senior counsel submitted their arguments the learned senior counsel appearing for the respondent Shri K.K. Mahanta suggested to the Court in his usual fairness that since the plaintiff has established his title on the suit property so he cannot be deprived of the same merely because of a technical error in conducting the case. So, the impugned judgment-and-decree may be set aside and the matter be remanded to the trial court to enable the trial court to ascertain who is actually in possession of the suit property when the suit is instituted and as to when did the defendant No.4 came in possession of a part of the suit property. It is also necessary to ascertain whether defendant No.4 is in possession of the suit property from the beginning or he forced his entry or he was authorised by the Receiver to step in the suit property. 38) The learned first appellate court in exercise of powers u/s 107 of the CPC is entitled to finally decide a suit even at appellate stage provided the materials required for such adjudication are available on record. Unfortunately, as discussed above, the materials necessary for deciding the aforesaid questions are not available on record. It is, therefore, necessary that both the sides be given liberty to lead appropriate evidence in support of their respective cases to enable the Court to arrive at a just finding in this regard. Accordingly the first point for determination is decided. 39) Coming to the second point for determination of law it is noticed that plaintiff claims title to the suit property on the basis of purchase from the original owner. Accordingly the first point for determination is decided. 39) Coming to the second point for determination of law it is noticed that plaintiff claims title to the suit property on the basis of purchase from the original owner. On the other hand the private respondents claim that the plaintiff is one of the sons of Digambar Chandra Paul and it is Digambar Chandra Paul who purchased the suit property on payment of consideration money from his pocket. Plaintiff, taking the opportunity, incorporated his name in the sale deed and so he could not claim to be the owner of the suit property. Prima facie such an objection raised by defendant No.4 appears to be barred under Section 3 as well as 4(2) of the Benami Transactions(Prohibition) Act, 1988. But in Section 4(3) of the same Act it is further provided that nothing in this Section shall apply where the person in whose name the property is held is a coparcener of Hindu Undivided Family and that the property is held for the benefit of the family. The trend of evidence led by the defendants is that as they and the plaintiff are the descendants of Digambar Chandra Paul, they were members of the same Hindu Undivided Family and as Digambar Chandra Paul was their father and guardian of the HUF, he purchased the property from his money for benefit of the family. 40) It is to be noted here that the plaintiff has not proved the source of money for the purchase. Defendants also failed to lead sufficient evidence to prove their respective cases in regard to Section 4(3) of the Benami Transactions (Prohibition) Act, 1988. If the prohibition under Section 4(3) of the Benami Transactions (Prohibition) Act, 1988 goes, mere production and proof of the Exhibit 1(sale deed) may not entitle the plaintiff to get the relief for declaration in the suit. Thus although the learned trial court declared title of the plaintiff to the suit land on the basis of Exhibits 1 and 2, the relevant questions raised by the defendants have not been decided. Perhaps these questions could not have been decided in the absence of appropriate evidence. The mutation in the record of rights does not confer title to anyone unless the title is acquired by any of the means prescribed in the Transfer of Property Act, 1882. Perhaps these questions could not have been decided in the absence of appropriate evidence. The mutation in the record of rights does not confer title to anyone unless the title is acquired by any of the means prescribed in the Transfer of Property Act, 1882. 41) At this stage the learned senior counsel Shri D. Mazumdar representing the appellant also falls in line with the learned senior counsel Shri K.K. Mahanta and submits that it is a fit case for remand by setting aside the impugned judgment-and-decree to enable both the sides to lead appropriate evidence in their respective favour. 42) On the basis of the submissions made by the learned senior counsel this Court feels inclined to accept the suggestions given by both the learned senior counsel so as to remand the matter to the learned trial court by framing the following two additional issues. (i) Whether the suit of the plaintiff is barred by the proviso to Section 34 of the Specific Relief Act, 1963 for failure on the part of the plaintiff to pray for any consequential relief. (ii) Whether the objections to title raised by the defendants are barred under Section 4(2) of the Benami Transactions (Prohibition) Act, 1988. 43) Accordingly the impugned judgment-and-decree is set aside and the appeal is disposed of. Registry shall send the records to the learned trial court at once. Parties shall appear before the learned trial court on 4.1.2016 to get necessary order.