ORDER : 1. Heard Mr. A.K. Sahani, counsel appearing on behalf of the appellants. 2. Counsel for the appellants submits that although the appellants have lost in both the courts below, but there is substantial question of law involved in this case regarding applicability of Benami Transaction (Prohibition) Act, 1988 in respect of sale deed dated 02.04.1990 (Exhibit- B). Counsel submits that before the learned courts below 11 issues were framed and he has advanced his argument only in connection with the issue no. 6 as to whether the plaintiff have got title to the suit land on the basis of sale deeds relied upon by the plaintiffs and submits that provisions of Benami Transactions (Prohibition) Act, 1988 has not been properly appreciated by the learned courts below. 3. The following issues were framed by the learned trial court:- 1. Is the suit maintainable in the present form? 2. Whether there has been any cases of action for the present suit? 3. Is the present suit barred by law of limitation and banami transaction? 4. Is the suit barred by the principles of estoppel, waiver and acquiescence? 5. Whether the suit property is grossly under valued and beyond the pecuniary jurisdiction of this court? 6. Whether the plaintiffs have got title to the suit land on the basis of alleged sale deeds? 7. Whether the plaintiffs re-constructed any house over the wuit land? 8. Is there any relationship of a landlord and a tenant between the two parties? 9. Whether the plaintiffs are entitled to get relief of declaration of their title to the house premises described in schedule of the plaint and for recovery of possession of the same? 10. Whether the plaintiffs are entitled to get decree for permanent injunction as prayed for? 11. Whether the plaintiffs are entitled to get any of the relief’s? The issue no. 6 has been decided by the learned court below vide paragraph no. 7 of the trial court judgment and after considering all the facts and circumstances of this case including detailed discussion of evidences came to the finding that the plaintiffs have failed to prove the mode of acquisition of title as stated in the plaint. The issue no. 6 has been decided by the learned court below vide paragraph no. 7 of the trial court judgment and after considering all the facts and circumstances of this case including detailed discussion of evidences came to the finding that the plaintiffs have failed to prove the mode of acquisition of title as stated in the plaint. The counsel for the appellants submits that the trial court on the one hand disbelieved the case of the plaintiff and held that the plaintiff has failed to prove the mode of acquisition of title of property involved in this case and on the other hand the appellate court has held that the claim of acquisition was barred by Benami Transaction (Prohibition) Act, 1988. 4. The learned lower appellate court framed the point of determination at para 10 as follows:- 10. In view of the rival submissions made at bar, the points to be determined in this appeal are as under:- (I) Whether the learned Court below rightly held that the claim of Title of the Plaintiffs is barred by Benami Transactions (Prohibition) Act, 1988? (II) Whether the learned Court below properly appreciated the evidence and pleadings of the parties available in the record? 5. The first point of determination has been decided vide para 11 which reads as follows:- 11. So far as first point of determination is concerned, it will be proper to refer to Section 4 (1) of the Benami Transactions (Prohibition) Act, 1988 which reads as under-“Burden of right to recover property held Benami-(1) No suit, claim or action to enforce any right in respect of any property had 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.” From the plain reading of the section, it is crystal clear that section 4 of the Benami Transactions (Prohibition) Act, 1988 bars a suit, claim or action to enforce right not only against the person in whose name the property is held i.e. Benamidar but against any other person as well. Hence, the contention of the appellants that the suit being not against the Benamidar, the provisions of Benami Transactions (Prohibition) Act, 1988 will not be attracted has no leg to stand. Hence, the contention of the appellants that the suit being not against the Benamidar, the provisions of Benami Transactions (Prohibition) Act, 1988 will not be attracted has no leg to stand. After carefully going through the materials in the record, I found that both the Exhibit-3 and 1/b i.e. the deed of release or deed of sale respectively, as already indicated above, were executed after commencement of the Benami Transactions (Prohibition) Act, 1988. Section 3 of the said act in no uncertain manner prohibits Benami transactions which reads as under-“Proof of Benami Transaction (1) No person can enter into any Benami Transaction.” Keeping in view the settled principle of law, the Hon’ble Apex Court in the case of Sankara Hali (Supra) held that burden of right to recover property held Benami is not applicable to pre-Act transactions, but here the Exhibit-3 and 1/b being the post-Act transactions certainly the prohibision as envisaged in the Benami Transactions (Prohibition) Act, 1988 is squarely applicable and the learned court below was right and proper in dismissing the suit by applying the provisions of Benami Transactions (Prohibition) Act, 1988. Hence, this point of determination is answered accordingly.” The court further find that while determining point No. 2 the learned lower appellate court further inter alia held regarding inconsistencies in the case of the plaintiff/appellant as follows:- “12. “In view of Exhibit-A, which was filed on behalf of the plaintiff Ashma Khatoon contradicts her pleadings in the plaint. In view of the principle of law settled in the case of Pandurang Jivaji Apte (Supra) the said averments made in Exhibit-A and the pleadings of plaintiffs. Keeping in view the contradiction of Exhibit-A and the pleadings of plaintiffs in the plaint as well as suppression made in Exhibit-1/b, Exhibit-3 and Exhibit-1 and 1/a, as already referred to above, certainly indicates that the case of the plaintiff is based on falsehood. As the plaintiffs themselves are not consistent regarding their nature of acquisition of title over the suit property. They made different cases in different forums and different deeds which are certainly not consisted with one another, hence this is a case where the ration of S.P. Changalvaraya Naidu (Supra) is certainly applicable.” 6. In the judgment passed by the Hon’ble Supreme Court reported in 2006 AIR SCW 2606 (Mst. Sugani Vs. They made different cases in different forums and different deeds which are certainly not consisted with one another, hence this is a case where the ration of S.P. Changalvaraya Naidu (Supra) is certainly applicable.” 6. In the judgment passed by the Hon’ble Supreme Court reported in 2006 AIR SCW 2606 (Mst. Sugani Vs. Rameshwar Das and another) it has been held that concurrent finding of facts on the basis of evidence adduced by the parties cannot be re-appreciated and re-opened in second appeal. It has been held in 2006 AIR SCW 2606 at paragraph nos. 26 and 27 as follows:- “26. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that the lower appellate court should not ordinarily reject witness accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where form a given set of circumstances two inferences are possible. One drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 27. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This court in Reserved Bank of India v. Ramkrishna Govind Morey (1976) (1) SCC 803) held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.” 7. After hearing counsel for the appellants and after going through the judgments passed by both the courts below, this court finds that the trial court has clearly held by appreciation of evidence of the parties that the plaintiff has failed to prove the mode of acquisition of title suit by the plaintiff in the plaint. From perusal of the judgment passed by the trial court this court finds that in para 7 of the judgment which deals with issue No. 6 it has been initially held as follows:- “The documents produced by the plaintiff no. which shows that the consideration for the sale deed dt. 13.07.67 and 30.4.71 was paid by the Asma Khatoon, original plaintiff no. 1 out of her own fund but deed was executed in the name of behamidar i.e. Samsul Hoda, is the deed of release dated 23.3.90 which has been exhibited in this case and marked as Ext. 3. This deed of release shows that the consideration for the aforesaid two sale deed was paid by Asma Khatoon but the deed was executed in the name of Samsul Hoda and on 23.3.90 the said Samsul Hoda executed the release deed releasing the said property in favour of Asma Khatoon. 3. This deed of release shows that the consideration for the aforesaid two sale deed was paid by Asma Khatoon but the deed was executed in the name of Samsul Hoda and on 23.3.90 the said Samsul Hoda executed the release deed releasing the said property in favour of Asma Khatoon. Now the second question arises as to whether the original plaintiffs can claim title over the suit land on the basis of this deed of release dt. 23.3.90. One thing which has been clearly admitted by this deed of release i.e. Ext. 3 is that the sale deed dt. 13.7.67 and 30.4.71 are Benami transactions and by the release deed dt. 23.3.90 the Benamidar i.e. Samsul Hoda released the property in favour of true owner but it is pertinent to mention here that the Benami Transaction prohibition Act came in the year 1988 and Section 4 of this Act prohibits any claim or action to recover any property hold Benami against the person in whose name the property is held or against any other person. So in view of the prohibition of recovering any property under benami the release deed dt. 23.3.90 cannot confer any possession and title on the plaintiffs. This interference finds support from the case of the plaintiffs themselves because after the execution of release deed the plaintiffs on the advice of their lawyer again got sale deed executed by the said Samsul Hoda in the name of plaintiff no. 2 i.e. Abdul Hanif. This sale deed is dt. 2.4.90 which has been executed in this case and marked as Ext. 1. The recital of this sale deed Ext. 1 demolishes the case as established by the plaintiff in this suit. This sale deed nowhere talks about any benami Transaction or about the fact that consideration of sale deed dt. 13.7.67 & 30.4.71 was ever paid by original plaintiff no. 1 Asma Khatoon rather recital of these sale deeds clearly stipulates that the suit land along with other land was purchased by Samsul Hoda vide registered sale deed dt. 13.7.67 and 30.04.71 and after the purchase the said Samsul Hoda came in possession of the same. In the recital it is also mentioned that the vendor i.e. Samsul Hoda has good valid ad subsisting title over the land which was transferred to the purchaser i.e. Abdul Hanif and the possession was also delivered to Abdul Hanif. 13.7.67 and 30.04.71 and after the purchase the said Samsul Hoda came in possession of the same. In the recital it is also mentioned that the vendor i.e. Samsul Hoda has good valid ad subsisting title over the land which was transferred to the purchaser i.e. Abdul Hanif and the possession was also delivered to Abdul Hanif. However, in the concluding part of the sale deeds it is mentioned tht the vendor Samsul Hoda has sold the land to the purchaser i.e. Abdul Hanif in the year 1972 itself, on receiving the consideration amount but because of some unavoidable circumstances, the sale deed could not be executed and as such the vendor i.e. Samsul Hoda is executing the sale deed on 2.4.90 after receiving the rest consideration amount of Rs. 500/- So this sale deed dt. 2.4.90 (Ext. 1/B) nullifies the deed of release dt. 23.3.90 and also the case of the plaintiff to the effect that it was the original plaintiff no. 1 who paid the consideration amount of sale deed dt. 13.7.67 & 30.04.71 and it was the original plaintiff who were real purchaser of suit land along with other land in the year 1967 & 1971. Even if I t is presumed that original plaintiffs No. 1 was the real purchaser of the sale deed dt. 2.4.90 are hit by Benami Transaction Act which bars any transaction for recovering the property held under Benami. It is pertinent to mention here that the sale deed dt. 2.4.90 is taken in the name of original plaintiff no. 2 Abdul Hanif and not in the name of sale deed dt. 13.7.67 & 30.4.71 has been paid out of her own fund.” 8. In the instant case the learned trial court as well as the learned lower appellate court have found material inconsistencies in the stand of the plaintiffs and both the counsel after fully appreciating the evidences on record as well as after considering the provisions of Section 4 of the Benami Transaction ( Prohibition) Act, 1988 came to a finding that the re-acquisition of the property by virtue of deed executed on 02.04.1990 was barred by Benami Transaction (Prohibition) Act, 1988 and held that the plaintiff has no title. This court finds that both the courts below have come to a concurrent finding of facts appreciating the facts and materials on record and no substantial question of law arising in this second appeal considering the aforesaid view of Hon’ble Supreme Court. 9. Accordingly this second appeal is hereby dismissed.