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2016 DIGILAW 421 (ALL)

SIYARAM SAXENA v. BISHAMBHAR DAYAL SAXENA

2016-02-03

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the appellant, on point of admission of this second appeal and perused the records. 2. Original Suit No. 26/2010 was filed for cancellation of sale-deed executed by defendant No. 2 in favour of defendant No. 3 and for the relief of permanent injunction against the defendants for the property involved in the aforesaid sale-deed. 3. The plaint case in brief was that plaintiff had purchased disputed property in benami transaction in the name of his brother (defendant No. 2) on 15.7.1981, but consideration total paid at the time of purchased of said property was by plaintiff. Therefore plaintiff is owner of disputed property, and the defendant had no right to execute the sale-deed of the same. But the defendant No. 2 had executed sale-deed in favour to defendant No. 3; so the plaintiff has sought relief cancellation of said sale dated 4.10.2002 and for permanent injunction. 4. In original suit, after the defendants had filed written statement, issues were framed. Then plaintiffs’ side adduced evidences, but no evidence was given by the defendants. After affording opportunity of hearing, the trial Court (Civil Judge (Senior Division), Hamirpur dismissed the suit by its judgment dated 16.5.2012. 5. The defendants had not preferred first appeal in time within the period of limitation. They had filed memorandum of appeal on 3.8.2012 alongwith an application under Section 5 of Limitation Act, and requested for condoning the delay in filing the memo of appeal. The grounds mentioned taken in application for condonation of delay before the first appellate Court was that after completion of arguments in original suit on 10.5.2012, the plaintiff had gone home because he was promised by clerk of his counsel that information of order and judgment would be sent to him; but when no information was sent then he came on 11.7.2012 in Hamirpur and inquired into the matter and came to know about the judgment. then he had filed memorandum of appeal alongwith delay condonation application 3.8.2012. So the delay in filing the appeal should be condoned. Another ground was also taken in enclosed affidavit that since the defendants had not adduced evidence during the trial, therefore, the appeal should be admitted. 6. After hearing the parties on disposal of delay condondtion application (C.A. Misc. then he had filed memorandum of appeal alongwith delay condonation application 3.8.2012. So the delay in filing the appeal should be condoned. Another ground was also taken in enclosed affidavit that since the defendants had not adduced evidence during the trial, therefore, the appeal should be admitted. 6. After hearing the parties on disposal of delay condondtion application (C.A. Misc. Case No. 36/74/2012), the Additional District Judge (SC/ST Act), Hamirpur had dismissed the said application under Section-5 of Limitation Act with the finding that reasons given and grounds taken for delay condonation application was not sufficient. Against this impugned order dated 30.9.2012 of rejection of application under Section-5 of Limitation Act and consigning the records passed by the first appellate Court, present second appeal has been preferred by plaintiff of the original suit. 7. Main arguments of the learned counsel for the appellant were on merits of the original case and grounds mention in memo of appeal. He contended that since the disputed property was purchased by the plaintiff from his own money, then plaintiff-appellant is owner of said property and defendants-respondents have no right to execute the sale-deed of the same; therefore the plaintiff-appellant’s claim should have been accepted by the trial Court. He also contended that grounds mentioned in delay condondation application should be treated to be sufficient and appears appeal should be admitted for being allowed. 8. Section 2(a), 3 and 4 of the Benami Transactions (Prohibition) Act, 1988 reads as under : “2. Definitions.—In this Act, unless the context otherwise requires,— (a) “benami transaction” means any transaction in which property is transferred to one person for a consideration paid or provided by another person;” “3. Prohibition of benami transactions.—(1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to— (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) - - - (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) - - -” “4. (4) - - -” “4. Prohibition of the right to recover property held benami.—(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this Section shall apply,— (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.” 9. So far the merits of the matter is concerned, it is pleaded in plaint that plaintiff had purchased the disputed property from his own personal money, but property was purchased in the name of his brother, who had soled the same, later on, by registered sale-deed under challenged. If plaintiff-appellant’s case is taken to be true, then alleged purchase by him was a ‘benemi’ transaction. The plaintiff-appellant’s claim on disputed property is not as member of Hindu undivided family or the purchase for benefit of any coparcener or as a trustee. If the facts mentioned in plaint are taken to be true on its face value, then in such circumstances also, the plaintiff’s suit cannot be decreed, as being barred by the provisions of the Benami Transactions (Prohibition) Act, 1988. 10. Therefore if plaint case is taken to be correct, in that case also case of the plaintiff was liable to be dismissed. The trial Court had also considered the evidences, facts and circumstances of the matter and thereafter given finding of fact against the appellant which are based on apparently correct and acceptable findings. 10. Therefore if plaint case is taken to be correct, in that case also case of the plaintiff was liable to be dismissed. The trial Court had also considered the evidences, facts and circumstances of the matter and thereafter given finding of fact against the appellant which are based on apparently correct and acceptable findings. So the contentions of learned counsel for the appellant on merits are found unacceptable. 11. So far this contention of learned counsel for the appellant is concerned that impugned order passed on application under Section-5 of Limitation Act is erroneous. A perusal of said order and its reasons given by the first appellate Court appears correct and acceptable. Arguments in original suit were concluded on 10.5.2012 and judgment was passed on 16.5.2012. The alleged averments of appellant about his talks with the clerk of the advocate are found unbelievable and are not acceptable on its facts. Apart from it no affidavit of clerk of the advocate was there on record to support the application of the delay for allowing the application for condonation of delay. 12. The reasons given by the appellant before the first appellate Court were found not sufficient, proper or acceptable. The findings of first appellate Court in that regard is apparently correct and acceptable, which should not be interfered in this second appeal. 13. The only points to be determined in this appeal before this Court was as to whether factual grounds mentioned in delay condonation application of appellant before the first appellate Court were satisfactory or not. This was question of fact and not of law. The said ground was considered and decided by the first appellate Court. Apart from it on merits of the case as argued by learned counsel for the appellant. His contention appears unacceptable. 14. For the reasons discussed above, this Court found that the impugned order passed by the first appellate Court or trial Court does not suffer from any infirmity or error. There appears no substantial question of law before this Court. Therefore this second appeal is dismissed.