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2017 DIGILAW 393 (GAU)

Chandradhar Kalita v. Rohit Kalita

2017-03-28

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : Prasanta Kumar Deka, J. Heard Mr. P. J. Phukan, the learned counsel appearing on behalf of the appellant. Also heard Mr. C. Baruah, the learned counsel appearing on behalf of the respondent. The present appellant is the defendant in Title Suit No. 4/2001 which was filed by the respondent/plaintiff in the Court of Civil Judge (Jr. Division), Rangia for declaration of his right, title and interest and for delivery of possession by evicting the defendant/appellant. 2. It is the case of the plaintiff/respondent that he himself and the defendant/appellant are the sons of late Dumahu Ram Kalita of village Madhukuchi under PS Rangia in the district of Kamrup. He is an employee of BSNL and as such his service is transferable. The defendant/appellant resides at their ancestral village Madhukuchi and on the other hand since the year 1972 the plaintiff/respondent has been residing at Rangia town. During the service period, the plaintiff/respondent purchased the land described in Schedule A-I to A-VII of the plaint which forms the suit land from various persons. Except Schedule A-I land the name of the plaintiff/respondent has been mutated in the other suit land. The defendant/appellant approached the plaintiff/respondent to allow him to look after the suit land and the plaintiff/respondent allowed him to look after the suit land as a caretaker. But when in the month of April, 2000 the plaintiff/respondent accompanied by his eldest son requested the defendant/appellant to vacate the land on the ground that the same would be looked after by the son of the plaintiff/respondent the defendant/appellant stopped them from entering into the suit land. A proceeding under Sections 145/146 of the Cr.P.C. was initiated before the Executive Magistrate at Rangia and in the meantime the defendant/appellant inducted the defendant Nos. 2 & 3 and allowed them to cultivate over the suit land. Finding no other alternative, the plaintiff/respondent preferred the suit seeking the reliefs herein above. 3. The defendant/appellant along with the other defendants filed their joint written statement taking the plea that the suit land is the joint family property of the plaintiff/respondent and the defendant/appellant including the other members of the joint family. Their father was the "Karta" who purchased the suit land "benami" in the name of the plaintiff/respondent on the consideration that he was the eldest son. Their father was the "Karta" who purchased the suit land "benami" in the name of the plaintiff/respondent on the consideration that he was the eldest son. It is also pleaded that the defendant/appellant along with his elder brother, Umesh Kalita also contributed to the common pool of joint family fund from which their father purchased the suit land. The defendant Nos. 2 & 3 are occupancy tenants of the suit land and hence they cannot be evicted from the suit land. Therefore, the defendant/appellant prayed for dismissal of the suit with costs. 4. Upon perusal of the pleadings of the parties, the Trial Court framed the following issues: "9. The following issues were framed in this case:- 1. Whether the suit land was purchased by the father of the plaintiff and the defendant No. 1 in the name of the plaintiff, benami? If so, whether the defence of 'Benami transaction' can be allowed in view of Section 4 (i & ii) of the Benami Transactions (Prohibition) Act, 1988? 2. Whether the plaintiff has the right, title and interest over the suit land? 3. Whether the plaintiff is entitled to the relief/reliefs prayed for?" The plaintiff/respondent examined four witnesses and the defendant/appellant examined as many as seven witnesses. After hearing the parties, Trial Court decreed the suit by declaring the right title and interest over the suit land and directed to deliver the vacant possession of the suit land which is in the possession of the defendant/appellant and the defendant No. 2 excluding 4 bighas 3 kathas and 7 lechas of land under possession of the defendant No. 3 vide judgment and decree dated 04.09.2001. 5. Being aggrieved the appellant/defendant preferred Title Appeal No. 68/2002 challenging the judgment and decree passed by the Trial Court in Title Suit No. 4/2001 before the learned Court of Civil Judge (Sr. Division) No. 1 at Guwahati. The First Appellate Court after hearing the parties dismissed the Title Appeal No. 68/2002 vide judgment and decree dated 05.09.2003. 6. The appellant/defendant thereafter preferred the present second appeal which was admitted on 06.04.2004 on the following substantial questions of law:- "1. Whether the provisions of the Benami Transactions (Prohibition) Act, 1988 is applicable to agricultural land it being exclusive domain (entry No. 18) of the State List under Seventh Schedule to the Constitution of India. 2. 6. The appellant/defendant thereafter preferred the present second appeal which was admitted on 06.04.2004 on the following substantial questions of law:- "1. Whether the provisions of the Benami Transactions (Prohibition) Act, 1988 is applicable to agricultural land it being exclusive domain (entry No. 18) of the State List under Seventh Schedule to the Constitution of India. 2. Whether the provisions of the Assam (Temporarily settled Areas) Tenancy Act, 1971 is applicable in the instant case, the Defendant No. 2 and 3 of the original Title Suit being occupancy tenants." 7. Before entering into the substantial questions of law, it will be pertinent to mention here that the Trial Court while discussing issue No. 1 relied upon the evidence of both DW 2, DW 3 respectively. Defendant Nos. 3 & 2 who had deposed that they have been cultivating the land of the plaintiff and the defendant No. 1's father under contract. The Trial Court also considered the evidence of PW 4-Binandi Kalita, PW 5-Chana Ram Nath, PW-6 Phanidhar Kalita and PW-7 Nabin Kalita and concluded that land under the sale deeds Ext. 1(1), Ext. 1(2), Ext. 1(5), Ext. 1(3), Ext. 1 (4) and Ext. 1(6) were purchased by the father of the plaintiff/respondent "benami" in the name of the plaintiff/respondent. It had also been taken note by the Trial Court that the father of the plaintiff/respondent was a rich man and had sufficient income to purchase the suit land. Finally the Trial Court came to the conclusion that the defendant/appellant had been able to prove that the suit land was purchased "benami" by his father. 8. Thereafter upon such finding, the Trial Court took note of the bar created by Section 4(2) of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'the Act 1988') wherein it has been specifically prescribed that no defence based on any right in respect of any property held "benami" 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. 9. The Trial Court taking note of Section 4(3)(a) (which has been omitted by Act 4(3) of 2016, Section 7) came to the finding that the defendant/appellant had failed to prove that his case falls under the said proviso of Section 4(3) of the said Act. 9. The Trial Court taking note of Section 4(3)(a) (which has been omitted by Act 4(3) of 2016, Section 7) came to the finding that the defendant/appellant had failed to prove that his case falls under the said proviso of Section 4(3) of the said Act. Section 4(3) (a) stipulates that 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 under such circumstances the bar of Section 4(2) does not apply. 10. The Trial Court while deciding Issue No. 2 i.e. with respect to the right, title and interest over the suit land decided the same against the plaintiff/respondent in view of the finding in the Issue No. 1 that the sale-transaction was a "benami" one. However, while deciding Issue No. 3 with regard to the entitlement of any relief/reliefs by the plaintiff/respondent came to the finding that in view of the findings in Issue Nos. 1 & 2 the plaintiff/respondent is entitled to the declaration of his right, title and interest over the suit land. However, the Trial Court with respect to land measuring 4 bighas, 3 kathas and 7 lechas out of the suit land came to the conclusion that the defendant No. 3 is a occupancy tenant thereof and as such he is not entitled to be evicted from his holding except following the procedure laid down by the Assam (Temporarily settled areas) Tenancy Act, 1971 and, accordingly, leaving aside the said part of the suit land held that the plaintiff/respondent is entitled to the relief of recovery of possession of the rest of the suit land. 11. In the First Appellate Court, the present appellant/ respondent raised the issue that the Act of 1988 has no applicability so far agricultural land is concerned. To that aspect the 1st Appellate Court relying (1989) 179 Income Tax Reports 442 (AP) held that the Act of 1988 effects "benami" transaction relating to agricultural land only incidentally which does not affect the validity of the act or the competence of the Parliament to legislate the said prohibition of the Act of 1988. 12. It was also raised before the First Appellate Court that the plaintiff/respondent was holding the suit property for the benefits of other coparceners of the Hindu Joint family. 12. It was also raised before the First Appellate Court that the plaintiff/respondent was holding the suit property for the benefits of other coparceners of the Hindu Joint family. Sub-section 3(a) of Section 4 of the Act of 1988 has excluded the applicability of the Act in case of property held by a coparcener in a Hindu undivided family when the property is held for the benefit of the coparcener in the family. To the said submission the First Appellate Court came to the finding from the evidence of the plaintiff, PWs 1, 2 & 3 as well as from the evidence of DW 4 that the plaintiff/respondent was leaving separately from other family members since a longtime. It was also concluded that there was no evidence to prove that the plaintiff/respondent was a member of the undivided Hindu family. It is further held that in Assam, the Hindus are governed by the Dayabhaga School of Hindu Law and in the said School the concept of copercenary is foreign. The concept of copercenary is found only in Mitakshara School of the Hindu law which is not prevalent in Assam. Accordingly, the First Appellate Court held that the plaintiff/respondent cannot be said to be a coparcener holding the suit property for the benefit of other coparceners. Therefore, the exception provided in Sub-section 3(a) of the Act of 1988 is not applicable in the present case. Accordingly, the First Appellate Court upheld the findings of Issue No. 1, Issue No. 2 and also the Issue No. 3 and finally dismissed the first appeal. 13. Mr. Phukan, the learned counsel appearing on behalf of the appellant submits that the provision of the Act, 1988 is not applicable to the agricultural land as the same being in the exclusive domain (Entry No. 18) of the State List under the Seventh Schedule to the Constitution of India. So, Mr. Phukan submits that both the Courts below were wrong in applying the bar as stipulated under Section 4(2) of the said Act of 1988 inasmuch as admittedly the suit land is agricultural land. 14. This Court as the Second Appellate Court cannot enter into the applicability of an Act without taking into consideration, the intent and purpose in legislating and enacting any Act/Statute. 14. This Court as the Second Appellate Court cannot enter into the applicability of an Act without taking into consideration, the intent and purpose in legislating and enacting any Act/Statute. The said Act, 1988 was brought into force to prohibit "benami" transactions and the right to recover property held "benami" for matters connected therewith or incidental thereto. The said Act extends to the whole of India except the State of Jammu & Kashmir. 15. Section 2(8) of the Prohibition of Benami Transaction (Prohibition) Act, 1988 defines benami property as any property in which property is the subject matter of a benami transactions and also includes the proceeds from such property prior to the amendment of the said Act of 1988. Prior to announcement of the said Act of 1988 the "benami transaction" was defined as any transaction in which property is transferred to one person for a consideration paid or provided by another person as per Section 2 (a). 16. Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines "property" which means property of any kind, whether movable or immovable tangible or intangible, and includes any right or interest in such property. At the time of filing of the suit by the plaintiff/respondent the Benami Transaction (Prohibition) Act 1988 was in force and as such the definition which were in existence at the time of filing the suit are considered in the present discussion. 17. As apparent from the definition of "benami transaction" and "property" as aforesaid it is clear that the property so defined within the ambit and scope at the said Act, 1988 includes any property whether movable or immovable and there is no such differentiation as to agricultural land or town land. Under such circumstances, if a Central act while at the time of its enactment transgress into the domain of agricultural land that must be taken into consideration that it is the intent of the said legislation to include the same. Accordingly, agricultural land though the same being in exclusive domain (Entry No. 18) of the State list under the Seventh Schedule to the Constitution of India, the intent of the Act of 1988 which was amended subsequently by the Benami Transaction (Prohibition) Amendment Act, 2016 is very much cleared that the same is to prohibit benami transactions and the right to recovery property held benami or matters connected therewith or incidental there to. Accordingly, the substantial questions of law No. 1 is decided in the negative. 18. With respect to the substantial question of law No. 2, Mr. Phukan urges that the defendant Nos. 2 & 3 are occupancy tenant as the defendant/appellant had pleaded in his written statement that they have been cultivating the suit land for more than 3 years and as such under the provisions of the Assam (Temporarily Settled Areas) Tenancy Act, 1971, the Courts below ought not to have allowed the relief of recovery of possession of the part of the suit land in favour of the plaintiff/respondent moreso when admittedly the suit land is an agricultural one. 19. Per contra, Mr. C. Baruah, the learned counsel appearing on behalf of the respondent submits that the application of the said Tenancy Act does not arise at all inasmuch as it is not the case of the defendant/appellant nor it is the case of the plaintiff/respondent that the defendants are tenants/rayats. Rather it is the case of the plaintiff/respondent that he is the absolute owner with respect to the suit land and on the basis of his title he is claiming his right to possess the suit land by evicting the respondent/defendant and other persons claiming under the respondent/defendant. 20. Considering the submission of both the learned counsels, it is very much surprising that both the courts below came to a conclusion that the defendant No. 3 is an occupancy tenant and that too under the Assam (Temporarily Settled Area) Tenancy Act, 1971 when there is not even an iota of evidence in support of khatian issued by the competent authority in favour of the defendant No. 3 or defendant No. 2. The status of occupancy tenant/the declaration of the status of occupancy tenant and his entitlement to claim the benefit under the Assam (Temporarily Settled Area) Tenancy Act, 1971 is well within the ambit and scope of the Civil Court to decide but the same must be proved as per the requisite qualifications stipulated in the said Tenancy Act of 1971 for a person to fall under the category of "occupancy tenant". The defendant/appellant never even pleaded with regard to the rent, the nature of possession of the defendant Nos. 2 & 3 and mere carrying out cultivation for more than 3 years and that too without any recognition by the Revenue authority to any of defendant Nos. The defendant/appellant never even pleaded with regard to the rent, the nature of possession of the defendant Nos. 2 & 3 and mere carrying out cultivation for more than 3 years and that too without any recognition by the Revenue authority to any of defendant Nos. 2 & 3 "as a rayat" there cannot be any applicability of the Tenancy Act, 1971 so far the present case in hand is concerned. Accordingly, this substantial question of law No. 2 is decided in the negative. 21. The finding of both the Courts below that the defendant/respondent has been able to prove that the suit land was purchased benami by his father is absolutely a wrong finding so far the materials on record are concerned. The case of the plaintiff/respondent as pleaded is that he is an employee in the BSNL and he is the recorded owner and enjoying the land measuring more or less 15 bighas and he purchased the land by way of registered sale deed from various persons on different dates. During transfer from Rangia to other places owing to his service, the defendant/appellant approached the plaintiff/respondent and offered him to help and looking after the suit land which the plaintiff/respondent agreed. When the plaintiff/respondent along with his son went to develop over the suit land into an agricultural farm, the defendant/appellant refused to deliver back the possession of the suit land and subsequently forcibly dispossessed the plaintiff/respondent. Accordingly, he filed the suit against the defendant/appellant along with two others terming them as trespassers and along with the declaration of his right, title and interest sought for recovery of the possession of the suit land. 22. On the part of the defendant/appellant his defence is that as per the direction of their late father Dumahu Ram Kalita both the plaintiff/respondent and the defendant/appellant along with his other brother Umesh Kalita contributed to the common pool of fund of the joint family and from the income of the joint family their father purchased the suit land in the name of the plaintiff benami. He had spent subsequent amount of rupees on improving the basti land and digging fishery. It is also stated in the written statement that the land in Rangia town where the plaintiff/respondent had settled was also purchased from the common fund of the joint family under the karta late Dumahu Ram Kalita. He had spent subsequent amount of rupees on improving the basti land and digging fishery. It is also stated in the written statement that the land in Rangia town where the plaintiff/respondent had settled was also purchased from the common fund of the joint family under the karta late Dumahu Ram Kalita. The suit land was purchased benami in the name of the plaintiff before the enforcement of the Benami Transaction (Prohibition) Act, 1988 and as such plaintiff/respondent is entitled only to a share of the suit land and he is not the exclusive owner of the suit land. 23. From the evidence on record, the PW 1(The plaintiff/respondent) in his evidence-in-chief deposed that while he was serving/residing at Rangia, BSNL, he purchased land in the year 1973, 1975, 1980 and the same had been purchased by way of registered sale deed which had been exhibited as Ext.1(1) to 1(6). After purchase his name was mutated in the respective jamabandi of the land so purchased and the mutation along with jamabandi had been exhibited as Ext. 2(1) to 2(6). 24. The plaintiff/respondent was transferred in the year 1997 to Guwahati and during that period he allowed the defendant/appellant to look after the land. He never took any financial assistance from his father while purchasing the suit land nor there was any obstruction by anybody at the time of mutating his name. In the cross-examination, he denied that the sale transaction was benami. 25. The PW 2 one Hari Charan Kalita stated that the sale consideration was handed over to him by the plaintiff/respondent. PW 3 also supports in the same manner. PW 4 who is the brother of the plaintiff/respondent specifically stated that no one had financially helped the plaintiff/respondent as told to him by his late father. 26. The DW 1 in his cross-examination stated that the plaintiff/respondent started his service career since 1962 in his cross-examination. The DW 1 (defendant/appellant) deposed that he failed to show any papers in support of his claim that he is the coparcener of the suit property. He admitted that the plaintiff/respondent mutated his name within the period commencing from the year 1981 to 1986 and the said mutation was done during the lifetime of his father and during the said mutation process his father never objected to it. 27. He admitted that the plaintiff/respondent mutated his name within the period commencing from the year 1981 to 1986 and the said mutation was done during the lifetime of his father and during the said mutation process his father never objected to it. 27. Considering the piece of evidence on record, it is very much clear and apparent that under no circumstances the said transaction ought to be held as a benami one. Both the Courts below of the first instance and the Lower Appellate Court failed to consider that aspect of the matter and failed to appreciate the evidence on record in the true perspective inasmuch as the defendant/appellant had failed to show that there was a common fund and out of the said common fund his father late Dumahu Ram Kalita paid to the vendors by purchasing the suit land in the name of the plaintiff/respondent. This Court invoking the jurisdiction under Section 103 of the CPC accordingly finding the evidence on the record to be sufficient determine the Issue Nos. 1 & 2 which have been wrongly determined by both the Courts below. Accordingly, the Issue No. 1 is decided in the negative and the Issue No. 2 in favour of the plaintiff/respondent thereby declaring the right, title and interest of the plaintiff/respondent over the suit land and as a consequence, the Issue No. 3 is also decided in favour of the plaintiff/respondent thereby declaring that the defendant/appellant along with the defendant Nos. 2 & 3 who are claiming under the defendant/appellant are liable to be ejected from the suit land described in Schedule A-1 to A-VII of the plaint and deliver the vacant possession to the plaintiff/respondent. 28. Mr. Phukan, the learned counsel relied upon the case of Mallesappa Bandeppa Desai v. Desai Mallappa reported in AIR 1961 SC 1268 whereby he submits that as the Courts below had held the transaction to be a benami one under such circumstances of the legal heirs of late Dumahu Ram Kalita are entitled to their respective shares out of the suit land. The ratio in the said decision is totally borne out on facts which are not similar to the one in the present case in hand. Accordingly, the said ratio cannot be applied in the present facts and circumstances of the case. Mr. Phukan also placed reliance of the case of Indranarayan v. Roop Narayan & Anr. The ratio in the said decision is totally borne out on facts which are not similar to the one in the present case in hand. Accordingly, the said ratio cannot be applied in the present facts and circumstances of the case. Mr. Phukan also placed reliance of the case of Indranarayan v. Roop Narayan & Anr. reported in (1971) 2 SCC 438 that is also a case wherein a joint family property is concerned but this is the case with respect to not a joint family property rather the plaintiff/respondent is the absolute owner of the suit land and it cannot form the subject matter of a joint family property. So this decision is not at all in any help to the appellant/defendant. 29. Mr. Phukan also relied upon the case of Jaydayal Poddar (Deceased) Through L. Rs & Arn. v. Mst. Bibi Hazra & Ors. reported in (1974) 1 SCC 3 wherein it was held that burden of proof pleading benami transaction is on the person who pleads benami transactions. In the said decision, it was held that it was well settled that the burden of proof with a particular sale was benami and the apparent purchaser was not the real owner, always rests on the person asserting it to be so and the said burden had to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of the benami is the intention of the party or the parties concerned. This decision in fact help the plaintiff/respondent inasmuch as already it has been held that the defendant/appellant had failed to show that the transaction was benami i.e. the same was purchased by the late father of the defendant/appellant in the name of the plaintiff/respondent out of the common pool fund of the joint family. 30. Accordingly, this second appeal has no merit. However, the findings of the Courts below with respect to the Issue Nos. 1, 2 & 3 have been determined by this Court keeping in view the evidence on record. Further decree of recovery of possession is modified to the full extent of the suit Schedule land A-I to A-VII described in the plaint. Draw a decree to that effect. 31. 1, 2 & 3 have been determined by this Court keeping in view the evidence on record. Further decree of recovery of possession is modified to the full extent of the suit Schedule land A-I to A-VII described in the plaint. Draw a decree to that effect. 31. Thus the second appeal has got no merit and the same stands dismissed. No. cost. 32. Send back the LCR.