Research › Search › Judgment

Patna High Court · body

2016 DIGILAW 1178 (PAT)

Lal Keshari Devi v. Kamla Devi

2016-09-06

MUNGESHWAR SAHOO

body2016
JUDGMENT : Mungeshwar Sahoo, J. 1. The plaintiffs have filed this First Appeal against the judgment and decree dated 12.9.1962 passed by the learned 1st Additional Subordinate Judge, Ara in Title Suit Nos. 32 of 1957/5 of 1962 whereby the Court below dismissed the plaintiff-appellant's suit. 2. It may be mentioned here that this First Appeal was decided by this Court by judgment and decree dated 21.8.1997 whereby the First Appeal was dismissed on the ground that the suit is barred under Section 69 of the Partnership Act. Against the judgment and decree, L.P.A. was filed by the plaintiffs. The L.P.A. Court also dismissed the L.P.A. on 7.1.1998 and confirmed the judgment passed by the Single Judge. Thereafter, the plaintiff filed Civil Appeal No. 6062 of 1998. The Hon'ble Supreme Court by terms of judgment dated 15.7.2004 passed the following order: "We, therefore, set aside the impugned judgment as well as the judgment of the First Appellate Court and restore First Appeal No. 943/1971 to the file of the Patna High Court. The High Court will decide on basis of available evidence and material whether the Trial Court has correctly answered issue Nos. 6, 7, 8 and 9. It is clarified that the question of accounts under issue no. 6 will only be on the footing that there was a joint venture and not on footing of a partnership. The Appeal stands disposed of accordingly. No order as to costs." 3. After the judgment of the High Court, the appeal remain pending before the High Court because the respondents and other parties died and substitution were made and fresh notice were issued to the substituted respondents. 4. The plaintiffs-appellants filed the aforesaid suit claiming the following reliefs: (i) A decree for partition of half and half share of either party in Schedule-A after ascertaining the assets and liabilities of the Cinema business and also accounts against the defendants after winding up the Cinema business named Alka Theatre, Buxar and if it is found necessary, a decree for dissolution of the said joint venture of partnership be passed, (ii) Cost of the suit be awarded to the plaintiffs, (iii) Any other or further relief to which the plaintiff may be entitled to get be awarded to them." 5. It may be mentioned here that plaintiff No. 1 was Sri Hari Mohan Prasad aid the other 3 plaintiffs were his minor sons. It may be mentioned here that plaintiff No. 1 was Sri Hari Mohan Prasad aid the other 3 plaintiffs were his minor sons. The plaintiffs claimed the aforesaid relief alleging that the plaintiffs purchased 6 kathas 17½ dhurs of land for the purpose of constructing a Cinema house. The defendants also purchased same area of land for the same object and thereafter the plaintiff and defendant agreed to combine in the venture. By 3rd of July, 1954, for constructing the Cinema house, the plaintiffs spent Rs. 83,561, 3 Anna and odd. The defendant had spent Rs. 61,478, 3 Anna and odd over construction and equipment of Cinema house. This joint venture was managed by the plaintiff No. 1 and defendant No. 4 being the karta of their respective joint families. The plaintiffs started the venture in the name of his minor sons and the defendant No. 4 in the name of the female members of his family, defendant Nos. 1 and 2 who are wives of defendant Nos. 3 and 4 respectively. A deed of partnership was executed between plaintiff Nos. 2 to 4 under the guardianship of plaintiff No. 1 and defendant Nos. 1 and 2 on 3.7.1954 wherein it was agreed that the plaintiff Nos. 2 to 4 and defendant Nos. 1 and 2 shall have 8 Anna share in the Cinema business. It was also agreed that both the parties shall invest equal capital. The further case is that defendant Nos. 1 and 2 through the defendant Nos. 3 and 4 were to manage the Cinema business namely Alka Theatre and will remain in-charge thereof and after opening of the Cinema house in September, 1956, they have been managing the Cinema business and are receiving profits. In spite of demand neither account was provided nor the defendants partitioned. Hence, the suit was filed. 6. The defendant Nos. 2 and 4 filed joint written statement. The main defence is that the suit is barred under Sections 30, 48 and 69 of the Partnership Act and Indian Contract Act. The agreement is denied. The allegation of plaintiff regarding the amount which the plaintiff spent was also denied. The partnership alleged by the plaintiff was termed as sham transaction. The main defence is that the Cinema business is the sole concern of these defendants and neither the plaintiff nor the other defendants have any share in it. The agreement is denied. The allegation of plaintiff regarding the amount which the plaintiff spent was also denied. The partnership alleged by the plaintiff was termed as sham transaction. The main defence is that the Cinema business is the sole concern of these defendants and neither the plaintiff nor the other defendants have any share in it. Jointness or joint business or joint venture alleged by the plaintiff is denied. The defendant No. 4 further pleaded that in the year 1949, he wanted to start a Cinema business at Buxar. Plaintiff No. 1 is a relation of defendant and is refugee from East Pakistan who came to Buxar at the end of 1949. Since there was suit instituted by Rani Rameshwari Devi against defendant No. 4, this defendant decided to apply for license in the name of plaintiff No. 1 because he was a refugee and will get preference in the matter. Accordingly, this defendant purchased the land for the Cinema hall in the furzi name of plaintiff No. 1 and defendant No. 3. Application was filed for license in the name of plaintiff No. 1. Permission to construct Cinema hall was granted on 21.12.1950 and construction started in February, 1951. 7. Further, it was pleaded that the defendants spent huge amount in constructing the Cinema house. In the year 1952, this defendant No. 4 was in need of money of Rs. 10,000/- which was advanced by the plaintiff No. 1 by raising fund by mortgaging lands but the said amount has already been paid to the plaintiff. In the year 1956, the ownership of the Cinema house was enquired into by District Magistrate who came to the conclusion that the plaintiffs are neither owner nor in possession of the Cinema house. On these grounds, the defendants prayed for dismissal of the suit. 8. The trial court framed the following issues: I. Is the suit, as framed, maintainable? II. Have the plaintiffs got valid cause of action? III. Has the suit been undervalued and the court fee paid is insufficient? IV. Is the suit hit by Sections 30, 48 and 69 of the Indian Partnership Act? V. Are the plaintiffs entitled for dissolution of Partnership business of Alka Theatre? VI. Are the plaintiffs entitled for their share and accounting? VII. Is the Cinema business the sole concern of the defendants as alleged? VIII. IV. Is the suit hit by Sections 30, 48 and 69 of the Indian Partnership Act? V. Are the plaintiffs entitled for dissolution of Partnership business of Alka Theatre? VI. Are the plaintiffs entitled for their share and accounting? VII. Is the Cinema business the sole concern of the defendants as alleged? VIII. Was there any contract between the plaintiffs and the defendants to start the Cinema hall at Buxar on the ground stated in the plaint? IX. To what reliefs, if any, are the plaintiffs entitled? 9. The trial court, as stated above, dismissed the suit on the ground of being barred by Section 69 of the Partnership Act. Now, in view of the judgment of the Supreme Court, the High Court is required to decide four issues. Now, therefore, only finding is to be recorded on issue Nos. 6, 7, 8 and 9. 10. In the light of the order of the Supreme Court, the learned senior counsel, Mr. S.S. Dvivedi submitted that earlier the plaintiff's suit was dismissed erroneously on the ground of barred by Section 69 of the Partnership Act although, the plaintiffs-appellants specifically pleaded in the plaint and claimed relief of partition of the suit property. The claim of partition is entirely different matter than the claim of the plaintiff pursuant to the partnership deed. The simple case of the plaintiff is that he had purchased 6 kathas 17½ dhurs of land for the purpose of constructing a Cinema house and in construction of the Cinema house, Rs. 83,561/- and odd was spent. The defendant also purchased same area of land for the same purpose and Cinema house was constructed by the money of the plaintiffs and defendants jointly. In such circumstances, the plaintiffs title over 6 kathas 17½ dhurs land could not have been dismissed by the trial court and partition could not have been denied on the ground that suit is barred under Section 69 of the Partnership Act. Even if the Partnership Act bars the relief of the plaintiff, which is based on the partnership agreement, then also the partition of the land and the property jointly constructed by the plaintiffs and defendants could not have been denied by the trial court. The learned senior counsel further submitted that so far the case of defendant No. 4 is that the plaintiff No. 1 is the benamidar of the defendant No. 4. The learned senior counsel further submitted that so far the case of defendant No. 4 is that the plaintiff No. 1 is the benamidar of the defendant No. 4. According to the defendant, in fact, defendant No. 4 has purchased the land in the name of the plaintiff No. 1 and defendant No. 3 and defendant No. 4 had obtained the license for Cinema in the name of the plaintiff because the plaintiff is a refugee. So far this case of the defendant is concerned, it is for him to prove the case and if it is found that the plaintiff is not benamidar of the defendant then naturally the plaintiff is entitled for the partition of his land because both the parties purchased same area of land by separate sale deeds for the purpose of construction of Cinema hall and Cinema hall was constructed. After purchase of the property, the plaintiffs and defendants became the joint owner of the property and are tenants in common. The trial court did not consider these aspects of the matter and also did not properly appreciate the evidences either oral or documentary as such, the finding recorded by the Court below is unsustainable in the eye of law. Whatever property is in existence is partible and if plaintiff is owner of the property, which he has purchased, then naturally his prayer for partition cannot be denied but the learned Court below dismissed the suit only on the ground that the suit is barred by provision of Partnership Act and that the plaintiff No. 1 is benamidar of the defendant No. 4 and was relation of the defendant No. 4. The learned Court below also wrongly held that the consideration amount was paid by defendant No. 4 because plaintiff No. 1 was refugee from Pakistan and while recording these findings, the learned Court below approached the case in wrong angle by recording finding that the wordings mentioned in various documents filed by the plaintiffs that the property was being purchased for the purpose of construction of Cinema hall are subsequent interpolation and addition only to create evidence in this case. The learned counsel further submitted that this finding of the Court below is perverse, based on no evidence and suffers from surmises and conjectures because it is not the case of the defendants that subsequently in the deeds the wordings were interpolated and added to the effect that "for the purpose of construction of Cinema house". Therefore, the Court below had made a third case only with a view to disbelieve the case of the plaintiff. 11. To prove the ownership over the property, the learned senior counsel placed in extenso Exhibits-1 to 5, Exhibit-D, Exhibit-1/A, Exhibit-4/A and submitted that these documents proved the fact that in fact, the plaintiff is not the benamidar of the defendant No. 4 rather plaintiff No. 1 is the owner of the property purchased by him by registered sale deed, Exhibit-D. The learned senior counsel further submitted that the defendant No. 4 never claimed as owner of the property of the plaintiff No. 1 s purchased land. Prior to amendment of the Benami Transaction Prohibition Act, 1988, it was necessary for the person to file return showing the property standing in the name of his benamidar according to the provision as contained in Section 281 of the Income Tax Act. After coming into force of the Benami Transaction Act in the year 1988, this provision has been deleted. 12. The learned senior counsel on the above grounds submitted that the impugned judgment and decree be set aside and the plaintiffs suit for partition be decreed with exemplary cost as the defendants have dragged the case from 1957 till date on frivolous, vexatious and incorrect pleadings. The learned counsel further submitted that Section 35 of the Code of Civil Procedure provides for awarding cost in favour of succeeding party and if the suit is decreed then considering the incorrect, frivolous and vexatious defence, put forth by the defendant-respondent for the purpose of dragging the case and harassing the plaintiff, exemplary cost be awarded and in support of his claim, the learned senior counsel relied upon the decision of the Supreme Court in (2005)6 Supreme Court Cases 344 and (2011)8 Supreme Court Cases 249. 13. On the other hand, the learned senior counsel, Mr. T.N. Maitin for the defendant-respondents submitted that concept of joint venture is not applicable in the present case. The claim of the plaintiff is based on the partnership deed itself. 13. On the other hand, the learned senior counsel, Mr. T.N. Maitin for the defendant-respondents submitted that concept of joint venture is not applicable in the present case. The claim of the plaintiff is based on the partnership deed itself. When the partnership deed is void deed and unregistered one and the partnership firm is also unregistered, the suit itself could not have been decreed by the trial court and, therefore, rightly dismissed the suit. Moreover, the trial court on the basis of the evidences available on record clearly recorded finding that the plaintiff No. 1 did not pay the consideration amount for the purchase of land and further clearly recorded finding that title deed has been produced by the defendant No. 4 in the Court and further that the defendant No. 4 was found to be in possession of the suit property. The learned senior counsel further submitted that the plaintiff No. 1 was refugee during the period, as such, there was no question of payment of consideration amount by him arises. Because the plaintiff No. 1 was the refugee at that time, Cinema license was granted easily, as such, the defendant No. 4 obtained the license in the name of plaintiff No. 1, a refugee and because of this agreement between the plaintiff and the defendant, the defendant agreed to give some benefit in the income of the Cinema business. Therefore, the property was purchased by defendant No. 4 and agreement was executed that the plaintiff will also get benefit in the dividend of the Cinema business but the plaintiff became dishonest and started claiming partition over the suit property. The Court below on the basis of the evidences recorded clear finding against the plaintiff with respect to all ingredients for constituting the benami transaction. The plaintiff No. 1 is also a close relation of the defendant No. 4 and because he was refugee, the defendant No. 4 helped him. Moreover, no account for spending of the amount as pleaded by the plaintiff was produced before the Court below, as such, the learned trial court has found that the plaintiff did not spend any amount in constructing the Cinema house. 14. The learned senior counsel, Mr. T.N. Maitin relied upon the decision of the Supreme Court, AIR 2014 Supreme Court 2277 and submitted that the contract by minors is a void contract. 14. The learned senior counsel, Mr. T.N. Maitin relied upon the decision of the Supreme Court, AIR 2014 Supreme Court 2277 and submitted that the contract by minors is a void contract. The learned senior counsel further relied upon (2008)10 Supreme Court Cases 345 and AIR 1986 Gujarat 185 and submitted that except the partnership, no other case has been pleaded by the plaintiffs. In such circumstances, if the plaintiffs claimed relief on the basis of partnership, which is being denied by the defendants, no relief can be granted to the plaintiffs by making a third case of joint venture and moreover, in the present case, in view of the plaintiffs the concept of joint venture is not applicable. 15. The learned senior counsel further submitted that D.W. 5 clearly stated that Hari Mohan Prasad is relation of defendant No. 4 which indicates that property has been purchased by the defendant No. 4 in the name of plaintiff No. 1, Hari Mohan. Exhibit-B speaks about the partnership business. Exhibit-4 also refers the partnership business and P.W. 16 who is plaintiff No. 1 admitted about partnership firm. When these facts are admitted that the claim of plaintiff is on the basis of partnership deed, no other relief can be granted on the basis of joint venture as there is no such pleading. Exhibit-E shows that Hari Mohan, plaintiff No. 1 admitted that he had not paid consideration for the land and, therefore, he was a furgidar. On these grounds, the learned senior counsel submitted that the First Appeal be dismissed with cost. 16. The learned senior counsel, Mr. K.N. Choubey appearing on behalf of respondent Nos. 3(a) and 3(b) submitted that in fact, defendant No. 3 is the real owner of the property. Neither plaintiff No. 1 nor defendant No. 4 is the real owner. In fact, the defendant No. 3 has purchased the property in the name of plaintiff No. 1 and himself. 17. In view of the aforesaid submissions of the parties and the direction of the Supreme Court, now let us consider issue nos. 6 to 9 framed by the Court below. Since the Supreme Court has directed the High Court to consider these issues, no separate points are being formulated herein under Order 41, Rule 31 C.P.C. These issues may be termed as points formulated in the appeal. 6 to 9 framed by the Court below. Since the Supreme Court has directed the High Court to consider these issues, no separate points are being formulated herein under Order 41, Rule 31 C.P.C. These issues may be termed as points formulated in the appeal. However, from perusal of these issues, it appears that all these issues are interrelated to each other and, therefore, they are decided together for convenience. 18. It appears that during the pendency of the appeal, two I.As. have been filed being IA. No. 2957 of 2011 and IA. No. 2958 of 2011 which have been filed by the respondent No. 1 herein for restraining the purchasers from forcefully dispossessing the respondent No. 1. Prayer has also been made for adding the purchasers from the defendant No. 4 as party-respondent in the suit being IA. No. 2958 of 2011. 19. So far these two I.As. are concerned, it may be mentioned here that now there is dispute between heirs of defendant No. 3 and heirs of defendant No. 4. Heirs of defendant No. 4 have sold some suit property to the purchasers-strangers and the defendant-respondent No. 1 has filed these applications for adding the purchasers and for restraining them. It will not be out of place to mention here that this is the dispute inter se between the defendant-respondent, who is in possession or who is the benamidar either defendant No. 3 or defendant No. 4, cannot be decided in this First Appeal particularly when the defendant No. 3 had not contested the suit and no pleading has been filed by defendant No. 3. Here, for the first time, he is claiming that he is in fact, the real owner and in possession of the property. Further, this is the appeal filed by the plaintiff whereby the plaintiff's suit has been dismissed. Therefore, at the instance of the defendants, the purchasers cannot be added as party particularly when' the purchasers are not approaching the Court for being added as party nor the plaintiffs-appellants have filed this application for adding the purchasers. 20. In view of the above, both I.As. filed by the respondent are hereby rejected. It may be mentioned here that these I.As. 20. In view of the above, both I.As. filed by the respondent are hereby rejected. It may be mentioned here that these I.As. have got nothing to do with the merit of this First Appeal i.e. the case set up by the plaintiffs-appellants in one side and the defence put forth by the defendants in another side. 21. It further appears that an injunction application has been filed by the appellants for restraining the respondents and one purchaser from changing the suit property during the pendency of the appeal being IA. No. 88 of 2016. This application was filed on 5.1.2016. On 12.1.2016, I directed that the First Appeal is of the year 1971, therefore, the appeal itself may be listed for hearing and in the meantime, I directed the parties to maintain status quo. Accordingly, the appeal was heard ultimately. Therefore, no separate order is passed on this I.A. The result of the appeal shall govern and shall dispose of this application also. 22. From the pleadings of the parties and from the submissions of the learned counsel for the appellants, now the points to be decided are regarding tho partition as directed by the Supreme Court. Now, let us consider the evidences produced by the parties in support of their respective cases. As stated above, the specific case of the plaintiff is that plaintiff No. 1 has purchased the half of the suit land and the defendant No. 4 has purchased the other half of the suit land and jointly both of them constructed a Cinema hall. In this respect, the first document is dated 4.8.1948 i.e. the agreement between the plaintiff No. 1 and defendant No. 3 to start a Cinema business. This agreement has been marked as Exhibit-2. From perusal of this Exhibit-2, it appears that defendant No. 3 and the plaintiff No. 1 entered into agreement to construct a Cinema hall in the name of Raja Mohan Talkies. The other conditions have been mentioned in the said agreement, Exhibit-2. From this document, it is clear that plaintiff No. I had the intention to construct a Cinema house and run Cinema business and for that purpose agreement was entered with the defendant No. 3. 23. Exhibit-D is the registered sale deed dated 29.3.1950 by which Raghubar Dayal sold property measuring 6 kathas 17 dhurs and odd. From this document, it is clear that plaintiff No. I had the intention to construct a Cinema house and run Cinema business and for that purpose agreement was entered with the defendant No. 3. 23. Exhibit-D is the registered sale deed dated 29.3.1950 by which Raghubar Dayal sold property measuring 6 kathas 17 dhurs and odd. This is a registered sale deed of the year 1950 which stands in the name of plaintiff No. 1. So far the claim of the defendant regarding this sale deed is concerned, it is a benami transaction and in fact, defendant No. 4 has purchased the land in the name of the plaintiff. 24. Exhibit-I is registered Makfulla deed dated 14.10.1952. From perusal of this document, it appears that plaintiff No. 1, Hari Mohan Prasad mortgaged his property i.e. house and sahan alleging that plaintiff No. 1 is in need of money for constructing the Cinema building. This document has been produced to show that the plaintiff No. 1 was raising fund for the purpose of constructing the Cinema hall. 25. Exhibit-3 is the Partnership deed dated 29.6.1954. This partnership agreement is between the minor plaintiffs i.e. minor sons of Hari Mohan Prasad, plaintiff No. 1 in one side and the wives of defendant Nos. 3 and 4 in other side. By this agreement, the Cinema hall was named as Alka Theatre. It may be mentioned here that by the earlier agreement dated 4.8.1948 entered into between plaintiff No. 1 and defendant No. 3, it was agreed that the name of the Cinema hall will be Raja Mohan Talkies. This agreement is partnership agreement. This document shows that how the name of the Cinema hall has been changed subsequently Although, the property has been purchased by the plaintiff No. 1 and the defendant No. 4 respectively in their names but this agreement was entered into between the minor sons of plaintiff No. 1 and wives of defendant Nos. 3 and 4 which is for getting the loss and profit shared between the partners. As directed by the Supreme Court, this aspect of the matter is not required to be gone into but certainly this document shows that Cinema hall was constructed on the property purchased by plaintiff No. 1 and defendant No. 4. 3 and 4 which is for getting the loss and profit shared between the partners. As directed by the Supreme Court, this aspect of the matter is not required to be gone into but certainly this document shows that Cinema hall was constructed on the property purchased by plaintiff No. 1 and defendant No. 4. In this agreement, it is clearly mentioned that the managing partner of the business will be the second party i.e. the defendants in the suit. This fact is mentioned here to show that how the defendants came in possession of the title deed i.e. Exhibit-D which has been produced by them in the trial court. 26. Exhibit-4 is agreement dated 3.7.1954 between plaintiff and defendant No. 2 whereby it was agreed by the parties to pay debt of Rs. 10,000/- to Babu Vijay Bahadur Singh as the house of plaintiff No. 1, Hari Mohan Prasad had been given in security for the mortgage bond dated 14.10.1952 and to pay interest thereon. The fund was raised for the purpose of construction of Cinema hall. This document has been produced by the plaintiff to show that plaintiff No. 1 in fact had mortgaged his house for raising funds by Exhibit-I, registered Makfulla. 27. In support of his case, the plaintiffs also produced Exhibit-5 series which are registered sale deeds by which Hari Mohan Prasad sold his properties to third persons for raising funds for the purpose of constructing Cinema hall. Exhibit-5 is sale deed dated 27.1.1955. Exhibit-5(a) is dated 27.1.1955. Exhibit-5(b) is dated 19.1.1955. Exhibit-5(d) is dated 9.12.1952. From perusal of these registered sale deeds, it appears that large area of lands were sold by plaintiff No. 1 during the period 1952 to 1955 for the purpose of constructing Cinema hall. These documents have been produced to show that the plaintiff No. 1 was selling his own property. If he was benamidar of defendant No. 4, then there was no question of raising fund by plaintiff No. 1 arises that too by selling his personal property. 28. Exhibit-1/a is another registered mortgage deed dated 6.4.1955 whereby both the parties mortgaged the Cinema hall jointly with land to one Tara Devi and took loan of Rs. 50,000/'-. If he was benamidar of defendant No. 4, then there was no question of raising fund by plaintiff No. 1 arises that too by selling his personal property. 28. Exhibit-1/a is another registered mortgage deed dated 6.4.1955 whereby both the parties mortgaged the Cinema hall jointly with land to one Tara Devi and took loan of Rs. 50,000/'-. From perusal of this document, Exhibit-1/a, it appears that the plaintiffs and the defendants in clear and unambiguous term mentioned that both parties have purchased 13 kathas 15 dhurs land by registered sale deed both dated 29.3.1950 and they have constructed a Cinema house over a portion of the land and the rest portion has been left for shops, parking road etc. The Cinema hall is required to be equipped with electricity, furniture, machines etc. and for that purpose, the parties are in need of money, as such, they mortgaged the property in favour of Tara Devi. All title deeds were given to the mortgagee, Tara Devi. Mortgagee was given power to deal with the property till it is redeemed. 29. The learned counsel for the appellants submitted that in this document, the defendants clearly admitted that both parties purchased the land separately and they jointly constructed the Cinema hall. Both parties raised funds. Now, by way of defence, the defendants pleaded that plaintiff No. 1 is benamidar and title deeds have been produced. The reason is obvious that the defendants were in possession of the title deed because they were the managing partners of the business and the title deeds were with them which were handed over to the lessee, Tara Devi. In such circumstances, the production of sale deed from custody of the defendant cannot be ruled out. 30. The next important document is Exhibit-4/a which is a kirayanama executed by Tara Devi, the mortgagee in favour of plaintiff No. 1 for self and for plaintiff Nos. 2 to 4 and wives of defendant Nos. 3 and 4 to pay Rs. 500/- as rent per month for running Cinema business and this document is dated 6.4.1955. 31. The learned senior counsel, Mr. Dvivedi submitted that if plaintiff is the benamidar of defendant No. 4. there was no question of joining the plaintiffs in this kirayanama and there was no question of agreeing the lessee to pay Rs. 500/- as monthly rent to the plaintiffs and defendants jointly. 32. 31. The learned senior counsel, Mr. Dvivedi submitted that if plaintiff is the benamidar of defendant No. 4. there was no question of joining the plaintiffs in this kirayanama and there was no question of agreeing the lessee to pay Rs. 500/- as monthly rent to the plaintiffs and defendants jointly. 32. The plaintiffs also have produced the entries in cheque books of Hari Mohan Prasad and entries in cheque book of Allahabad Bank which have been marked Exhibits-6, 6/a, 7 to 7/c. 33. The learned senior counsel, Mr. S.S. Dvivedi submitted that the defendants in the written statement pleaded that the plaintiff No. 1. Hari Mohan is relation of the defendants and, therefore, since he was refugee, the property was purchased in the benami name of the plaintiff No. 1 According to the learned counsel for the appellants, this statement is incorrect statement. In fact, there is no relationship between the plaintiff No. 1 and the defendant and this fact has been admitted by defendant No. 4, Nand Gopal Prasad in another case i.e. in Money Suit Case Nos. 14 of 1954/2 of 1956 and his deposition has been marked as Exhibit-9. From perusal of the deposition of Nand Gopal Prasad, Exhibit-9, it appears that in the cross-examination, he has stated that he had sold his truck to Hari Mohan Prasad and had given the papers relating to truck and at the same time, he has stated that he does not know to which place Hari Mohan belongs. This statement of defendant No. 4 clearly falsifies the claim of the defendant that Hari Mohan is the relation of defendants. 34. Exhibit-9(a) is deposition of Rajeshwar Prasad, defendant No. 3 in Title Suit Nos. 83 of 1953/34 of 1955 who in clear term admitted that before 1952 the Cinema was only in the name of Hari Mohan. Nand Gopal (defendant No. 4) and himself did not invest any amount in Cinema business till 1952. Hari Mohan personally lived since 1949 or 1950 but he had a house constructed 10 years before that period. Hari Mohan belonged to Village-Sapahi and he is Sasur (father-in-law) by distant relation. Hari Mohan applied for the construction of Cinema hall which was allowed in 1950. Hari Mohan personally lived since 1949 or 1950 but he had a house constructed 10 years before that period. Hari Mohan belonged to Village-Sapahi and he is Sasur (father-in-law) by distant relation. Hari Mohan applied for the construction of Cinema hall which was allowed in 1950. This witness had no enough fund to invest in Cinema in the year 1953 he was running a business of brick kiln, truck and coal This statement of defendant No. 3 again falsifies that plaintiff No. 1 is close relation. He admits that Hari Mohan applied for Cinema license which was allowed in 1950 and he further admitted the fact that he had no sufficient fund to invest in the Cinema house. It may be mentioned here that the heirs of this defendant No. 3 before this Court have filed application claiming that in fact, they are the real owner of the property and the plaintiff and defendant No. 4 were the benamidar. 35. Exhibit-10 is another important document which is of the year 1960-61. From perusal of this Exhibit, it appears that certificate cases were started against the proprietor of M/s. Alka Theatre in respect of entertainment tax dues for different period and in the certificate proceeding, the house of Hari Mohan Prasad, plaintiff No. 1 was sold. It further appears that the dues was Rs. 15,000/- but the house was sold for Rs. 85,000/-. Report was submitted by Chairman, Municipality that the valuation of the house sold is more than Rs. 1 lakh. The Additional Collector set aside the sale and directed the certificate debtor to pay up the Government dues immediately. This document clearly shows that the plaintiffs were the proprietors of the M/s. Alka Theatre and because of non-payment of the entertainment tax, the house of the plaintiffs was sold as they were the proprietors. Further, it is clear that the plaintiffs had a house which was valued more than Rs. 1 lakh during that period. 36. Exhibit-F is the refugee card which is in the name of Hari Mohan Prasad dated 28.2.1951. This document has been produced by the defendants to show that plaintiff No. 1 is a refugee from Pakistan, therefore, the defendants applied for Cinema license in his name and purchased the land in the name of plaintiff No. 1. 36. Exhibit-F is the refugee card which is in the name of Hari Mohan Prasad dated 28.2.1951. This document has been produced by the defendants to show that plaintiff No. 1 is a refugee from Pakistan, therefore, the defendants applied for Cinema license in his name and purchased the land in the name of plaintiff No. 1. On the contrary from perusal of this Exhibit-F, it is clear that he had 200 bighas of land received in exchange in Purnia District also and his address in the year 1951 has been mentioned as Buxar, District-Shahabad. This document shows that the plaintiff No. 1 was not helpless because he was refugee or that he had no source of income. In this Exhibit-F, he has been described to a businessman and he was cultivating 200 bighas of land. It will not be out of place to mention here that out of these 200 bighas of land, the plaintiff No. 1 had sold many landed property by Exhibit-5 series with a view to raise fund for construction of Cinema. The question arises that if he was a benamidar and has nothing to do with the Cinema house or Cinema business then why he was selling the land and was investing money in constructing the Cinema hall. There is no explanation at all provided by the defendants. 37. Exhibit-G is another document produced by the defendants which is dated 22.8.1950. From perusal of this Exhibit-G, it appears that the letter was sent by Deputy Relief Commissioner, Bihar, Patna to the District Magistrate, Shahabad, Arrah for the purpose of grant of Cinema license to new displaced persons from East Pakistan. In this letter, the application filed by Hari Mohan Prasad of Buxar for grant of Cinema license at Buxar was sent to the District Magistrate. Shahabad and a report was called to the effect that whether the petitioner is a genuine displaced person from East Pakistan and whether license to him to run Cinema house at Buxar may be recommended to the department concerned. The application of Hari Mohan Prasad is part of Exhibit-G which is dated 25.6.1950 wherein he in clear and unequivocal term stated that he was resident of East Pakistan where he had considerable landed property and several residential and business houses about 1200 bighas of agricultural land and had also 50 heads of cattle. The application of Hari Mohan Prasad is part of Exhibit-G which is dated 25.6.1950 wherein he in clear and unequivocal term stated that he was resident of East Pakistan where he had considerable landed property and several residential and business houses about 1200 bighas of agricultural land and had also 50 heads of cattle. The father and forefather of Hari Mohan had migrated from Bihar 100 years ago. The plaintiff No. 1 also described the other facts and also detailed the loss caused to them and on these grounds he prayed for permission to construct a Cinema hall at Buxar. These are the documentary evidences. According to the defendant No. 4, plaintiff No. 1 is the benamidar. 38. The Hon'ble Supreme Court in AIR 1974 Supreme Court 171 (Jaydayal Poddar (Deceased) through L.Rs. and Another v. Mst. Bibi Hazra and Others) has laid down what are the matters to be considered in determining benami nature of transaction. "Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances such as: (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." 39. The Hon'ble Supreme Court further held that "the above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, i.e. the source from where the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another". 40. In the light of the aforesaid decision which is the consistent view of the Supreme Court as well as the other High Courts, now let us examine in this case. (a) Wherefrom consideration amount was paid/who paid the consideration amount: (i) The learned senior counsel, Mr. 40. In the light of the aforesaid decision which is the consistent view of the Supreme Court as well as the other High Courts, now let us examine in this case. (a) Wherefrom consideration amount was paid/who paid the consideration amount: (i) The learned senior counsel, Mr. T.N. Maitin submitted that Exhibit-E is certified copy of Bajidawa executed by plaintiff No. 1 in favour of plaintiff Nos. 2 to 4 on 3.7.1954 wherein there is clear recital that plaintiff No. 1 is furzidar. The consideration money of Exhibit-D i.e. the sale deed has not been paid by him, therefore, when the plaintiff No. 1 himself admitted the fact that he has not paid the consideration amount and is a furzidar, the important point for consideration regarding the nature of transaction is in favour of the defendants-respondents. (ii) So far this above submission of the learned senior counsel, Mr. Maitin is concerned, from perusal of Exhibit-E, it appears that this document is executed by Hari Mohan Prasad in favour of his minor sons wherein he has stated that the consideration amount for 6 kathas 17½ dhurs purchased by registered sale deed in the name of plaintiff No. 1 was paid by the mother of the minor sons and, therefore, he is furzidar of the minor sons. This document is admitted by the defendant and in fact, they are relying on this document. Plaintiff No. 1 might have admitted to be the furzidar of his sons and might have admitted that the consideration was not paid by him but at the same time, his case is that consideration amount was paid by his wife. In no case, on the basis of this statement made in Exhibit-E, which is relied upon by the defendant, it can be said or even inferred that plaintiff No. 1 is the furzidar of defendant No. 4. (iii) From perusal of the impugned judgment, it appears that the learned Court below gave much emphasis on this document. The learned Court below held that there is no evidence that the minors plaintiff Nos. (iii) From perusal of the impugned judgment, it appears that the learned Court below gave much emphasis on this document. The learned Court below held that there is no evidence that the minors plaintiff Nos. 2 to 4 had any separate money by which land in question could have been acquired and this admission of the plaintiff goes to show that the consideration of the sale deed was not paid by plaintiff No. 1 which supports the contention of the defendant No. 4 that it is he who really purchased the lands. This finding of the Court below can very well be termed as perverse, based on surmises and conjectures. The learned Court below has not even read the contents of the document as I have discussed above. How can it be inferred that because the minors had no separate source of income and the plaintiff No. 1 said that their mother paid the consideration amount, the plaintiff No. 1 will be the furzidar of defendants and consideration amount was paid by the defendants and not by the plaintiff No. 1. In my opinion, the Court below has grossly erred in recording such finding without there being any basis by approaching the case in wrong angle and misconstruing the document. (iv) From perusal of the impugned judgment paragraph 12, it further appears that the Court below held that at the time of execution and registration of sale deed Exhibit-D and D/1, the plaintiff No. 1 was not in India as the plaintiff No. 1 has in his evidence admitted that he is a refugee and refugee card is dated 28.2.1951. It may be mentioned here that this observation of the Court below is again without any basis and it is not the case of any party that on the date of sale deed, the plaintiff No. 1 was in Pakistan. It is admitted fact that there was disturbance in the year 1947-48. It is also admitted case that the plaintiff had his ancestral house at Buxar and also in Purnia. In the certificate proceeding, this house of the plaintiff No. 1 was sold. The registered sale deed Exhibit-D stands in the name of plaintiff No. 1. Defendants never pleaded that plaintiff No. 1 was at Pakistan and in fact, in his name, defendant No. 4 has purchased the property. In the certificate proceeding, this house of the plaintiff No. 1 was sold. The registered sale deed Exhibit-D stands in the name of plaintiff No. 1. Defendants never pleaded that plaintiff No. 1 was at Pakistan and in fact, in his name, defendant No. 4 has purchased the property. (v) The trial court further held that on the date of execution of sale deed plaintiff had only two minor sons, as such, there is no question of acquisition of the land by plaintiff in his four minor sons arises. This observation again is neither here nor there nor it is the case of any party. In the Bajidawa, Exhibit-E, the plaintiff No. 1 stated that the property was purchased for the benefit of four minor sons and the consideration was paid by the mother of the minors. This Exhibit-E is of the year 1954. Now, therefore, the nature of the transaction of the year 1950, Exhibit-D cannot be determined by subsequent execution of Bajidawa. At best, the Bajidawa can be considered to show as to who paid the consideration amount. On the basis of this Bajidawa, Exhibit-E, which is of the year 1954, it cannot be said that the property acquired by plaintiff No. 1, by Exhibit-D of the year 1950, is the property acquired by defendants in the name of plaintiff No. 1 and consideration amount was paid by the defendant. In this very paragraph the trial court further observed that the application for Cinema license was filed by Hari Mohan but the defendant in written statement at paragraph 10 clearly stated that it is defendant No. 4 who put the signature of Hari Mohan on this petition. Now, therefore, in view of this pleading of the defendant, the signature on the application for license was signed by the defendant No. 4 in the name of Hari Mohan. D.W. 10 in his evidence also stated so. In support of this pleading and statement of D.W. 10, nothing has been brought on record to show that the signature on the application for license is not of Hari Mohan Prasad but is of defendant No. 4 but the learned Court below only on the pleading and statement of D.W. 10 held that it is not the signature of Hari Mohan but it was signed really by defendant No. 4 in the name of Hari Mohan. In my opinion, the Court below has himself appreciated the fact and this finding that it is really signed by defendant No. 4 is again perverse finding. There is no admissible evidence. The defendant did not examine any expert nor the Court below recorded its own conclusion. The conclusion has been arrived at because plaintiff has not denied in his evidence that D.W. 10 has not signed the application. (vi) In view of my above discussion, I find that on this point, the learned trial court has recorded findings which are perverse, based on no evidence and there is no admissible evidence to reach to such conclusion. The findings are based on surmises and conjectures and inferences because of non-appreciation of the evidences properly. (b) The nature of possession: It is admitted fact that in the agreement, the parties decided that the defendants will be the managing partner of the Cinema house. Now, therefore, in view of this case which is admitted in the agreement by the defendants, the possession will be with the managing partners. The Cinema house is such that one cannot claim exclusive possession therein. The agreement between the parties clearly shows that they were in joint possession and the defendants were managing the Cinema business but that does not mean that the plaintiff No. 1 was not in possession. From perusal of the impugned judgment, it appears that while considering this question, at paragraph 14, the learned Court below held that P.W. 16, the plaintiff No. 1 himself admitted that defendant did not allow him to go to the Cinema hall and defendant never shown him any account or income or expenditure and they never paid anything, therefore, the plaintiffs are not in possession. This finding of the Court below is again based on inference. These reasons are the cause of action for the plaintiff for filing the instant suit and claiming partition. If it is proved by the plaintiff that he is the purchaser of half land then can it be said that because the other tenants in common did not allow him to go to Cinema hall or expenditure or income were not shown to the plaintiff he is not in possession of the property. The answer will be no. Here the plaintiff is claiming for partition of his land where Cinema house was constructed by both the parties. The answer will be no. Here the plaintiff is claiming for partition of his land where Cinema house was constructed by both the parties. Because the defendant is not accounting for, the suit has been filed. It cannot be said that unless the plaintiff proved that in fact, his two feet are on the land, he is not in possession of the property. In view of the agreement signed by the parties and the registered sale deeds, the parties will be joint tenant, therefore, possession of one managing partner will be the possession of the other. In other words, possession of co-tenant is possession of others unless ouster and adverse possession is claimed. (c) Motive: (i) We have seen above various documents produced by the plaintiffs as well as the defendants from which it appears that motive for purchasing the land was to construct a Cinema house and run the Cinema business. The license is in the name of plaintiff No. 1. The plaintiff sold his many properties and raised funds and invested in construction of the house and even for non-payment of entertainment tax the house was sold which was subsequently set aside on the application of the plaintiffs who were the proprietors which would be evident from the order of the Collector, as discussed above. So far plaintiff's motive is concerned, he has purchased the property for the purpose of Cinema house and for that, he raised funds and in fact. Cinema house started running and for non-payment of entertainment tax his house was sold. This shows the possession of the plaintiff No. 1 also and the motive is apparent. On the other hand, the defendant is claiming that plaintiff No. 1 is the furzidar. Therefore; he has to prove that for what motive, he purchased the property in the name of plaintiff No. 1. In this case, it will not be out of place to mention here that the defendant No. 4 pleaded that he has paid the consideration amount and the motive is to run Cinema house. Since he is claiming to be the real owner of the lands purchased, it is for him to show why he did not purchase in the name of his wife or brother's wife who are all defendants in this case. In one hand, he is entering into agreement through, the wives of defendant Nos. Since he is claiming to be the real owner of the lands purchased, it is for him to show why he did not purchase in the name of his wife or brother's wife who are all defendants in this case. In one hand, he is entering into agreement through, the wives of defendant Nos. 3 and 4 and the plaintiffs in the other side. There is no explanation at all that why he purchased the land in the name of plaintiff No. 1, there is no motive at all for purchasing the property in the name of plaintiff No. 1. The only case is that a case was filed by one Rani. Only on this ground, it is not believable that he would have purchased land that too only half. Why not the entire land was purchased. (ii) Except the above, the defendants have not pleaded the reason as to why the transaction was given a benami colour. It is stated that plaintiff No. 1 is distant relation. Merely because he is a distant relation, the transaction cannot be said to be a benami transaction. Further, it is pleaded that he is refugee, therefore, license was issued easily to the refugee. So far this motive is concerned, if it is accepted then also at best, it can be said that he was involved jointly with the defendants in Cinema business but that cannot be the motive for giving the transaction as colour of benami transaction. (d) The position of the parties and the relationship: Here, so far this ingredient is concerned, I have already discussed much in the preceding paragraphs above regarding the relationship and position of the parties. The plaintiff No. 1 has his house prior to partition of India into two parts and he had also 200 bighas of land. So far relation is concerned, according to the defendants, he is father-in-law in distant relation. Therefore, there is no fiduciary relationship between the parties so as to give the transaction a colour of benami transaction. The position i.e. as to why the defendants instead of purchasing the land in the name of the other defendants it was purchased in the name of plaintiff No. 1 is not explained. (e) Custody of title deeds: We have seen above that for Cinema business, there was agreement between the parties. The position i.e. as to why the defendants instead of purchasing the land in the name of the other defendants it was purchased in the name of plaintiff No. 1 is not explained. (e) Custody of title deeds: We have seen above that for Cinema business, there was agreement between the parties. No doubt, this agreement is a partnership agreement and it cannot be enforced but for the purpose of determining the conduct of the parties, it can be looked into. From the same, it is evident that the defendants were made the managing partners of the Cinema business and the documents were handed over to the defendants which were subsequently given to the lessee. Admittedly, therefore, the title deed was not in possession of the plaintiffs and it has been produced by the defendants. Therefore, the matter has been clearly explained by the plaintiffs as to how it came in the custody of the defendants. In my opinion, in these facts and circumstances of the case, the transaction cannot be termed as benami transaction only because the sale deed has been produced by the defendants. (f) The conduct of the parties: In the present case, from the various documentary evidences discussed above, it appears that both the parties were jointly dealing the properties. Agreements were executed by the parties jointly. The property was leased by the parties jointly. The property was never dealt with exclusively by the defendants excluding the plaintiff No. 1 or the other plaintiffs. In such circumstances, the conduct shown by the parties also do not give any light to come to the conclusion that the transaction is a benami transaction. 41. Now, let us consider the evidences produced by the defendants to prove that the transaction is benami transaction. We have discussed the ingredients in the preceding paragraphs. Exhibit-D is the registered sale deed dated 29.3.1950. This sale deed has been executed by Raghubar Dayal in favour of plaintiff No. 1. On the same day, the Exhibit-D/I another registered sale deed was executed by Raghubar Dayal in favour of Rajeshwar Prasad, defendant No. 3. These deeds have been produced by the defendants and it is submitted that from the custody of the defendant, the title has been produced. It is not necessary to reiterate here the same thing which I have already djscussed above regarding the possession of the title deeds. These deeds have been produced by the defendants and it is submitted that from the custody of the defendant, the title has been produced. It is not necessary to reiterate here the same thing which I have already djscussed above regarding the possession of the title deeds. However, it is admitted that it is a registered sale deed of the year 1950 in the name of plaintiff No. 1. It is settled principles of law that the registered sale deed is presumed to be valid unless it is proved to be otherwise as claimed by the defendants. Since the defendant is claiming to be the owner of this property as plaintiff No. 1 is his benamidar, it is for the defendant to prove the fact by positive evidence. We have discussed the ingredients for proving this fact according to the decision of the Supreme Court. 42. Exhibit-E has been produced which is Bajidawa executed by plaintiff No. 1 in favour of Bijendra Prasad and other plaintiff. This is inter se transaction between the plaintiff No. 1 and his sons. This document has got nothing to do with the determination of question as to whether plaintiff No. 1 is benamidar of defendant or not. 43. Exhibit-F is refugee registration card which is also in the name of plaintiff No. 1. Exhibit-G series i.e. Exhibits-G to G/9 are different letters in relation to running of Cinema business, Alka Theatre and likewise, Exhibit-H series i.e. Exhibits-H to H/37 are the receipt for payments for work done in Alka Theatre. These receipts have been produced by the defendants to show that all the expenses were met by the defendants and the plaintiff No. 1 never invested anything. From perusal of these documents, Exhibit-H series, it appears that for different works, payments were made to the worker, labourer, carpenter etc. At this stage, it may be reiterated herein that plaintiff through Exhibit-5 series had sold his many lands by registered sale deeds during this period and in these sale deeds, the purpose for selling the land has been mentioned that for the purpose of constructing Cinema house. Now, therefore, only because receipts showing payment to the labourer or carpenter etc., no finding can be recorded that in fact, the plaintiff has not invested a single farthing towards the construction of Cinema house. 44. Now, therefore, only because receipts showing payment to the labourer or carpenter etc., no finding can be recorded that in fact, the plaintiff has not invested a single farthing towards the construction of Cinema house. 44. Exhibit-I series i.e. Exhibits-I to 1/27, all are booking contracts between film distributors with the proprietor of Alka Theatre. Naturally, the defendants were the managing partners and, therefore, they were dealing with the displaying Cinema and for that, they were booking film from the film distributors wherein they were termed as the proprietor of Alka Theatre but that does not mean that the plaintiff is not the owner of the property nor he has invested anything nor the property purchased by him is the property purchased by the defendant. These documents only show that the defendants were running the Cinema business and these documents have got nothing to do for determining the question as to whether the property purchased by plaintiff No. 1 by registered sale deed Exhibit-D is the property in fact, purchased by defendant No. 4 in the name of plaintiff No. 1. On the basis of these documents, no presumption can be made regarding benami transaction. Likewise, the other documents, Exhibit-J series or the money decree, Exhibit-K produced by the defendants have got nothing to do for the determination with the question regarding benami transaction. 45. The learned senior counsel, Mr. T.N. Maitin relied upon a decision of the Supreme Court in Faqir Chand Gulati v. Uppal Agencies Private Limited and Another, (2008)10 Supreme Court Cases 345 and submitted that the concept of joint venture is not available to the plaintiff in the present case and in fact, joint venture is applicable to the corporate bodies. From perusal of the aforesaid decision, it appears that there was agreement between the landowner and a builder for construction of apartments and sale of those apartments so as to share the profits in a particular ratio. The Hon'ble Supreme Court held that "it may be a joint venture, if the agreement discloses an intent that both parties shall exercise joint control over the construction/development and be accountable to each other for their respective acts with reference to the project". In view of this decision of the Supreme Court, it appears that in that case, the matter was entirely different. There was agreement between the owner and the builder. In view of this decision of the Supreme Court, it appears that in that case, the matter was entirely different. There was agreement between the owner and the builder. Here, the agreement is between two owners and they jointly constructed the Cinema house. Here, admittedly, the joint venture is there between the two owners in whose name landed property stands over which the Cinema house were constructed. The only claim of the defendant is that the plaintiff No. 1 is benamidar. Now, therefore, it cannot be said that joint venture is not applicable in the present case. 46. The learned senior counsel, Mr. T.N.Maitin relied on the decision of the Supreme Court, AIR 2014 Supreme Court 2277 (Mathai Mathai v. Joseph Mary alias Marykkutty Joseph and Others) submitted that for an agreement to become a contract, the parties must be competent to contract, wherein age of majority is a condition for competency. A deed of mortgage is a contract. A mortgage in the name of a minor cannot be held valid, simply because it is in the interests of the minor unless he/she is represented by her/his natural guardian or guardian appointed by the Court. According to the learned senior counsel, here, the agreement of partnership was entered between the minor plaintiff and the defendant. Even if it is for the interests of minor, the agreement is not a contract between the parties. So far this submission of the learned senior counsel and the decision relied upon by him is concerned, it can be simply said that it is not applicable in the present case because now after decision of Supreme Court, the question to be decided is whether the plaintiff No. 1 is entitled to partition the suit property or not. Moreover, in the plaint itself, the plaintiff prayed for partition of the suit property. No doubt, it was pleaded in the plaint regarding the partnership deed. Even if it is held that partnership deed is not enforceable then at best it can be said that the interest which is claimed by the plaintiff through the partnership deed cannot be granted to them but if the plaintiff has got independent right and title on the suit property that cannot be denied on the ground that the plaintiffs are trying to enforce the partnership agreement. Here, so far purchase of property by plaintiff No. 1 through Exhibit-D is concerned, it is the property purchased by him and not by the minors. May it be purchased by plaintiff No. 1 for the benefit of the minor defendants and the consideration amount was paid by the mother of the minor plaintiff as would be evident by Exhibit-E then also it cannot be said that the sale deed is void sale deed or it is not a valid sale deed. In my opinion, this decision relied upon by the respondent is not applicable in the present facts and circumstances of the case. 47. The learned senior counsel, Mr. T.N. Maitin further relied upon a Division Bench decision of the Gujarat High Court, AIR 1986 Gujarat 185 (Asia Foundations and Constructions Ltd., Bombay and Others v. State of Gujarat and Another) and submitted that joint venture is applicable in cases of companies and it is not applicable in cases of private individuals. From perusal of the decision, it appears that the Gujarat High Court held that contractual relationship created by such adventures is similar in nature of partnership. No doubt, these decisions referred by the respondent speaks about joint venture and the literal meaning of "joint venture" is a business activity undertaken by two or more companies acting together, sharing the costs, risks and profits. 48. In the present case at our hand, the Supreme Court directed to decide the issues on the footing that as to whether joint venture and not on footing of a partnership. Now, so far construction of Cinema hall is concerned, according to the plaintiffs amount specified in the plaint has been spent by the plaintiffs. Half land has been provided by the plaintiffs. In the plaint, half land has been provided by the defendants. Merely because the partnership deed is not enforceable, the right, title and interest of the plaintiffs on the part of the property will not be ceased. In other words, the title of the plaintiffs will not be divested. In the plaint, he has categorically prayed for partition of the property to the extent of half share. This claim of the plaintiffs is not dependent on the question as to whether the Cinema business was running in partnership between the parties or not. In other words, the title of the plaintiffs will not be divested. In the plaint, he has categorically prayed for partition of the property to the extent of half share. This claim of the plaintiffs is not dependent on the question as to whether the Cinema business was running in partnership between the parties or not. The literal meaning of joint venture should not be interpreted in the way so as to deny the right, title, interest and possession of the plaintiffs over his properties. The defence is that the plaintiff is benamidar. If it is denied now then what will happen to the share of the plaintiffs. Whether the title will vest to the defendants automatically without there being any conveyance deed as required under the T.P. Act. 49. It is settled principles of law that emphasis should not be given in the form of the pleading nor emphasis should be given to the words pleaded. The Courts are required to see the intention of the parties from the pleadings. Here, in view of the pleading of the plaintiffs, simple case is that he purchased the property by Exhibit-D for the purpose of construction of Cinema house and for the same purpose, the defendants also purchased the same area of land and both jointly constructed Cinema house. For running Cinema business, partnership agreement was entered into. Now, this matter has been concluded and, therefore, it is not required to discuss here this matter but the question is if partnership deed is not enforceable, can it be said that the plaintiff is not entitled to claim partition of his half share in the property. This is the simple case and simple meaning of the plaint. As stated above, the pleadings are filed by the parties to give the notice to the other side regarding the bundle of facts which entitles the plaintiff to claim a particular relief. I am not sitting to interpret the English language "joint venture". The Supreme Court directed to decide as to whether there is joint venture or not. The simple meaning will be as to whether it is the joint property of the parties or not. Merely because "joint venture" word has been mentioned in the plaint which is not appropriate word in this case, can it be said that the plaintiff be not suited as he is not able to use correct word? 50. The simple meaning will be as to whether it is the joint property of the parties or not. Merely because "joint venture" word has been mentioned in the plaint which is not appropriate word in this case, can it be said that the plaintiff be not suited as he is not able to use correct word? 50. From perusal of the impugned judgment, it appears that the court below held that the purpose for which the landed properties have been sold by the plaintiffs mentioned in Exhibit-5 series are interpolated. It may be mentioned here that it is not the case of any party. No such suggestion has been given to any of the party and to any of the witness by the defendants. The Court below how recorded this finding is not apparent from the record. Moreover, it is not in one document but there are many registered sale deeds. How this interpolation is made is not clear and what is that interpolation not specified. Therefore, the observation made by the trial court is without basis and in fact, the Court below has made a third case regarding the fact that those are interpolation. 51. So far the oral evidences are concerned, the defendants have examined 14 witnesses. D.W. 1 who is purohit of the defendants, D.W. 4 private tutor of son of defendant No. 3, D.W. 5, the father of defendant No. 2 and father-in-law of defendant No. 4, D.W. 6 is electric mistry who worked in Cinema house, D.W. 7 is interior decorator, D.W. 8 claimed to have supplied furniture to Alka Theatre, D.W. 9 another purohit, D.W. 10 is defendant No. 4 himself and likewise, the other witnesses have only stated that Nand Gopal, defendant No. 4 is the Malik of Alka Theatre. Hari Mohan has no concern with the Cinema and defendant No. 4 got puja performed at the time of construction. In these lines, the witnesses have deposed. In my opinion, on these statements of these witnesses who are either purohit, electric mistry, father-in-law etc., the transaction cannot be termed as benami transaction. No reliable evidence has been produced by the defendants to show the payment of consideration for purchase of the land through Exhibit-D. 52. In these lines, the witnesses have deposed. In my opinion, on these statements of these witnesses who are either purohit, electric mistry, father-in-law etc., the transaction cannot be termed as benami transaction. No reliable evidence has been produced by the defendants to show the payment of consideration for purchase of the land through Exhibit-D. 52. On the contrary, the plaintiffs have examined witnesses who have all supported the case of the plaintiffs regarding the purpose of purchasing the property and investment by the plaintiffs and that the sale by Hari Mohan through Exhibit 5 series. The statements of witnesses are supported by the documentary evidences as already discussed above. Therefore, meticulous examination of the statements of these witnesses are not required to be gone into here as there are many witnesses examined by both the parties. The depositions made by them are according to the pleadings of the parties. When the documents are available in support of the witnesses, the same can be relied upon. Here, the defendant No. 4 is claiming that plaintiff No. 1 is the benamidar. Now, therefore, the burden is on him to prove this fact. Moreover, it is settled principle of law that after evidences, the burden losses its force and the matter has to be decided on the basis of the evidences available on record. 53. In view of my above discussion, I find that the plaintiffs have been able to prove that by Exhibit-D, the registered sale deed, the plaintiff No. 1 has purchased part of the suit property for the purpose of constructing Cinema house and for constructing the Cinema house, he invested the amount. On the contrary, the defendants have failed to prove that plaintiff No. 1 is the benamidar of the defendant No. 4. The finding of the trial court on these points is, therefore, hereby reversed. 54. So far the claim of defendant No. 3 is concerned, it may be mentioned here that he had not claimed that he is the real owner of the property. Moreover, according to the submission of the learned senior counsel, Mr. K.N. Choubey, it appears that the dispute is between defendant No. 3 and defendant No. 4 who are brothers themselves. So far the claim of defendant No. 3 is concerned, it may be mentioned here that he had not claimed that he is the real owner of the property. Moreover, according to the submission of the learned senior counsel, Mr. K.N. Choubey, it appears that the dispute is between defendant No. 3 and defendant No. 4 who are brothers themselves. Their inter se dispute cannot be decided in this appeal particularly when I have held that plaintiff No. 1 is the real owner of the property purchased by him on which Cinema house has been constructed. So far remaining half portion is concerned, i.e. either land or the house constructed on it, the dispute is between defendant No. 3 and defendant No. 4. 55. From the discussion made above, it appears that the suit was filed in the year 1957 but because of frivolous and vexatious defence made by the respondents, the plaintiff is deprived of the enjoyment of his property legally purchased by him since last several years. Admittedly, Cinema business has been closed long ago as would be evident from injunction application and now the value of the suit property is in crores as the property is situated in the town of district headquarter, Buxar. 56. The Hon'ble Supreme Court in the case of Salem Advocate Bar Association v. Union of India, (2005)6 Supreme Court Cases 344 [: 2005(4) PLJR (SC)270] has held that "Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practise to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) CPC. Such a practise also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for costs to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefore. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for costs to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefore. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer's fee, typing and other costs in relation to the litigation". 57. This view has also been taken by the Hon'ble Supreme Court in the case of Ramrameshwari Devi and Others v. Nirmala Devi and Others, (2011)8 Supreme Court Cases 249. This view has again been reiterated by the Supreme Court in the case of Pradip Nanjee Gala v. Sales Tax Officer and Others, (2015)13 Supreme Court Cases 149. 58. In view of the above settled proposition of law and in view of the fact that because of frivolous and vexatious defence taken by the defendants which is non-existent, the litigation prolonged for such a long period, as such, the respondents are liable to pay cost to the appellants and it is held that the plaintiffs are the real owner of half portion of the property in suit and are entitled for half share in view of the registered sale deed, Exhibit-D. 59. In the result, this First Appeal is allowed. The impugned judgment and decree are set aside and the plaintiff's suit for partition is decreed to the extent of half share with cost of Rs. 1,00,000/- to be paid by the respondents to the appellants within two months failing which the appellants shall be at liberty to realize the same through the process of the Court.