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2020 DIGILAW 230 (MAD)

D. Gajendran v. Dharmasamvarthiniammal

2020-02-04

N.SATHISH KUMAR

body2020
JUDGMENT : Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 28.10.1998 in A.S.No.27 of 1998 on the file of the learned Principal District Judge, Thanjavur, confirming the judgment and decree in O.S.No.102 of 1995, dated 17.12.1997 on the file of the learned District Munsif, Thiruvayaru. Aggrieved over the concurrent finding of the Courts below granting declaration and permanent injunction, the present Second Appeal is filed. 2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court. 3. The brief facts leading to the filing of the suit are as follows: 3.1. The suit property originally belonged to the plaintiff's husband one Durairaj, who was the Zamindar of Pappanadu Village. He has settled the property in the name of the plaintiff on 13.11.1959 and she was put in possession of the property. The first defendant was very closely associated with the husband of the plaintiff. He was trusted by the plaintiff's husband Durairaj. The plaintiff's husband was always authoritative and dictatorial in his attitude. The plaintiff had no say in any matter to the direction of her husband. She had to carry out his directions. In order to maintain a happy home, the plaintiff was faithfully carrying out the dictates and directions of her husband without any reservation. 3.2. In the year 1972, during the month of September, at the instructions of her husband, she has executed a nominal sale deed dated 19.09.1972 in favour of the first defendant. The plaintiff's husband wanted the plaintiff to create a sale deed, as he was threatened by the tax authorities. The husband of the plaintiff also told the plaintiff that the document was not intended to be given effect to. It is being done to safeguard the interest of the plaintiff against any possible claim by the third parties. It is her contention that the said sale deed was not acted upon and it is only sham and nominal. The plaintiff had no necessity to sell the suit property to the first defendant. There was no cash consideration paid or agreed to be paid between the parties. The sale deed has been only an empty paper exercise and the title of the plaintiff was never disputed by the first defendant nor passed on to him. The plaintiff had no necessity to sell the suit property to the first defendant. There was no cash consideration paid or agreed to be paid between the parties. The sale deed has been only an empty paper exercise and the title of the plaintiff was never disputed by the first defendant nor passed on to him. The plaintiff was also not divested of her right, title and interest in the property. Though the recitals indicate Rs.19,000/- as a sale consideration, the said amount has not been paid by the first defendant. 3.3. The husband of the plaintiff died on 21.03.1989. After his death, the first defendant appears to have become emboldened and wants to pick up a quarrel with the plaintiff by disturbing her possession. Since the first defendant did not dispute the title before, nor attempted to cause any disturbance to her peaceful possession, she had no occasion to come to the Court seeking any redressal. Of late, the second and third defendants have been attempting to trespass upon the suit property on same pretext. The plaint was also amended, wherein, it is contended that the second and third defendants claimed title and right over the suit property under two sale deeds of the year 1985 said to have been executed by the first defendant. The sale in favour of the first defendant by the plaintiff was only sham and nominal and the actual possession of the suit property was all along with the plaintiff. At the time of alleged sale by the first defendant to the second and third defendants, the first defendant lost his title and possession, because of adverse possession by the plaintiff for more than 12 years to the knowledge of the first defendant. Therefore, the sale in favour of the second and third defendants is non est in law. 4. The first defendant filed a written statement admitting that he never intended to purchase any property from the husband of the plaintiff Durairaj, Zamindar. The said Zamindar used to have several benami and nominal transactions for his own ulterior purpose. The suit transaction is one of such one. The first defendant is not aware of the sale deed nor he ever got into possession. After the death of the Zamindar, the third defendant and his brother approached this defendant and wanted him to execute a conveyance in favour of the third defendant. The suit transaction is one of such one. The first defendant is not aware of the sale deed nor he ever got into possession. After the death of the Zamindar, the third defendant and his brother approached this defendant and wanted him to execute a conveyance in favour of the third defendant. Since this defendant has nothing to do with the property, he simply obliged by executing the conveyance as stipulated by them. In fact, this defendant does not even know the nature of the document obtained from him nor was be benefited in any way by executing the document. This defendant has absolutely no title or possession over the suit property at any point of time. 5. The second defendant filed a written statement, which was adopted by the third defendant, stating that the sale deed dated 19.09.1972 in favour of the first defendant was a genuine document binding on the plaintiff and acted upon. The first defendant himself sold an extent of 8000 square feet of the suit property for a consideration of Rs.16,000/- in favour of the second defendant under a duly registered sale deed dated 20.08.1985. The remaining extent of 1600 square feet with superstructure was sold by the first defendant to the third defendant by his guardian and mother D.Kamalambal, for a consideration of Rs.28,200/- under a registered sale deed dated 20.08.1985. After the purchase, the second and third defendants have been in exclusive possession and enjoyment of the suit property. In fact, their tenants are in occupation of some portions of the suit property under tenancy agreements. The second defendant let out two thatched sheds in a total extent of 280 square feet to one D.Krishnaswamy and entered into a lease agreement on 06.03.1991. On the same day, the third defendant and Krishnaswamy also entered into another written lease agreement in respect of a portion of the suit property owned by the third defendant. Another person, by name Rajanandam has also executed a lease agreement on 27.04.1991 in favour of the third defendant in respect of another portion of the suit property. Stating so, they prayed for dismissal of the suit. 6. Based on the above pleadings, the Trial Court has framed as many as eight issues. On the side of the plaintiff, the first defendant himself was examined as P.W.2 and another witness was examined as P.W.1 and Exs.A.1 to A.21 were marked. Stating so, they prayed for dismissal of the suit. 6. Based on the above pleadings, the Trial Court has framed as many as eight issues. On the side of the plaintiff, the first defendant himself was examined as P.W.2 and another witness was examined as P.W.1 and Exs.A.1 to A.21 were marked. On the side of the defendants, the second defendant was examined as D.W.1 and Exs.B.1 to B.39 were marked. 7. Based on the evidence and materials, the Trial Court accepted the case of the plaintiff and decreed the suit. The first Appellate Court has also confirmed the finding of the Trial Court. As against the concurrent finding of the Courts below, the present Second Appeal is filed. 8. The Second Appeal was admitted on the following substantial questions of law: "(i) Whether or not the lower Appellate Court went wrong in decreeing the suit that the plaintiff is the absolute owner, in the absence of any prayer for setting aside the sale deeds Exs.A.1, B.1 and B.2 under which the appellants are claiming title to the suit property? (ii) Whether or not the lower Appellate Court went wrong in holding that the plaintiff/respondent has perfected title by adverse possession when there is no pleading or material to construe that the possession of the plaintiff was hostile, animus and continuous and adverse to the knowledge of the appellants? (iii) Whether or not the lower Appellate Court is correct in shifting the burden on the appellants/defendants to prove that they were in possession on the date of filing of the suit, to decide the question of the possession of the plaintiff/respondent? (iv) Whether or not the lower Appellate Court is correct in not considering the evidence of P.W.2, who has categorically deposed that he did not engage any lawyer to contest the suit? (v) Whether or not the lower Appellate Court is correct in not considering the evidence in the form of B1 to B23, to B25 in proper perspective to negative the claim of the plaintiff/respondent that she was possession of the suit property on the date of the filing of the suit? (vi) Whether or not the lower Appellate Court is correct in considering the document created subsequent to the filing of the suit for the purpose of the deciding the case in favour of the plaintiff? (vi) Whether or not the lower Appellate Court is correct in considering the document created subsequent to the filing of the suit for the purpose of the deciding the case in favour of the plaintiff? (vii) Whether or not the suit filed by the plaintiff/respondent is barred by limitation?" 9. The learned counsel appearing for the appellants/defendants submitted that both the Courts below have not even considered the well settled principle of law in deciding the suit. The plaint proceeded as if the second and third defendants are the third parties. Whereas, the second and third defendants are the sons born through the second wife of the plaintiff's husband, which has been clearly established on record. He further contended that the case of the plaintiff that the sale deed in Ex.A.1 in favour of the first defendant is sham and nominal cannot be countenanced, for the simple reason that the plaintiff herself has not appeared before the Court to withstand the cross-examination. Her contention is that ever since the date of settlement in the year 1959, she is in possession of the suit property. Absolutely, there is no document filed to prove the said fact. Further, even after the sale in favour of the first defendant in the year 1972, the property has been mutated in the name of the first defendant and there is no evidence to show that she was all along in possession of the suit property. All the documents relied upon by the plaintiff to show the alleged possession, came after the suit. Exs.A.2 to A.11 are the tax receipts in the name of the first defendant. Ex.A.12 and the revenue records were obtained in the year 1996 and chitta has also been obtained in the year 1996 after the suit. The other documents said to be the electricity receipts. Except these documents, no other documents were available to show that the plaintiff is all along in possession of the suit property and enjoying the property from the date of her possession in the year 1959. Even after 1972, after Ex.A.1, to show that she was enjoying the property as her own, there is no evidence available on record. Only the plaintiff's Secretary was examined as P.W.1. Therefore, his evidence cannot be given much importance. Even after 1972, after Ex.A.1, to show that she was enjoying the property as her own, there is no evidence available on record. Only the plaintiff's Secretary was examined as P.W.1. Therefore, his evidence cannot be given much importance. The first defendant has sold the property under Exs.B.1 and B.2 in the year 1985 to the second defendant and one Kamalambal as guardian of the third defendant, who was a minor at that time. The first defendant was examined as P.W.2. He has sailed with the plaintiff. His evidence is highly unbelievable. He has supported the plaintiff. Whereas, in the municipal records, his name has been changed after the sale and in his written statement, he has taken the plea of benami, which is prohibited under law. The conduct of the parties in this case clearly shows that the first defendant and the plaintiff had colluded together to non-suit the valid sale executed in favour of the second and third defendants. The documents filed on the side of the defendants clearly show that they are in possession of the property. Hence, it is submitted that when the plaintiff herself has not come to the Court to withstand the cross-examination, her contention cannot be accepted. Further, no declaration whatsoever sought to cancel the document. The suit has been filed in the year 1992, after 20 years of the sale executed by the plaintiff, which is also barred by limitation. Hence, it is contended that the Courts below have not considered the entire materials in proper perspective. Hence, he prayed for allowing the appeal. 10. Whereas, it is the contention of the learned Senior Counsel appearing for the respondent/plaintiff that the evidence adduced on the plaintiff's side clearly shows that the plaintiff is in possession of the suit property even after the alleged sale under Ex.A.1 in the year 1972. P.W.1 also clearly has spoken in his evidence about the nature of tenants under the plaintiff. The Trial Court and the first Appellate Court have factually found that the plaintiff is in possession of the suit property and the first defendant has also admitted that neither he paid consideration nor took possession of the property. When the plaintiff was all along with the possession of the property even from the year 1972 till 1985, she perfected her title by adverse possession. When the plaintiff was all along with the possession of the property even from the year 1972 till 1985, she perfected her title by adverse possession. Therefore, any sale in favour of the second and third defendants by the first defendant did not convey any title. 11. The learned Senior Counsel further contended that to prove the consideration, on the side of the defendants, there is no evidence. Admittedly, the second defendant was at the age of 19 years and the third defendant was at the age of 16 years at that point of time. The evidence of D.W.1 clearly indicated that he and the third defendant have no source of income at the relevant point of time. Therefore, the same clearly probabilised the fact that the sale is not supported by consideration. Therefore, such sale deed is sham and nominal and the plaintiff is all along in possession of the suit property, which has been clearly found by the Trial Court. Hence, it is contended that in the Second Appeal, this Court cannot re-appreciate the entire evidence. Thus, the learned Senior Counsel prayed for dismissal of the appeal. 12. I have perused the entire materials. 13. The suit has been filed for permanent injunction restraining the defendants and alternatively, to pass a relief of declaration that the plaintiff is the absolute owner of the suit property. The plaintiff has filed the suit inter alia contending that the suit property was originally settled in her favour by her husband Durairaj on 13.11.1959. Ever since the date of settlement, she has been enjoying the suit property as its absolute owner. Thereafter, in the year 1972, at the directions of her husband, she has executed a sale deed in favour of the first defendant. No consideration whatsoever received by her. It is her contention that her husband has told that the sale was executed to safeguard the interest of the plaintiff against possible claim by the third parties and also for the tax purposes. It is her contention that the first defendant has never disputed the title of the plaintiff. The plaintiff continued in possession all along. 14. It is to be noted that the suit has been filed in the year 1992 after 20 years of the sale. It is her contention that the first defendant has never disputed the title of the plaintiff. The plaintiff continued in possession all along. 14. It is to be noted that the suit has been filed in the year 1992 after 20 years of the sale. Whereas, the first defendant has sailed with the plaintiff and contended that the sale deed was executed in his favour as a benami transaction. He has also filed a written statement to the effect that after the death of the said Durairaj, Zamindar, the husband of the plaintiff, at the request of the second and third defendants, he has executed a conveyance in their favour under Exs.B.1 and B.2 without any consideration. It is to be noted that the suit has been filed in the year 1992. The first defendant has raised a defence of benami in his written statement. It is curious to note that his written statement has been filed on 02.12.1992. In this regard, it is useful to refer to Section 4(2) of the Prohibition of Benami Property Transactions Act, 1988, which reads as follows: "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." 15. When the Law itself prohibits, such a defence cannot be allowed in any suit. The plea of the first defendant cannot be given much importance. But, his pleadings itself indicate as if he had executed sale deeds, after the death of the plaintiff's husband, in favour of the second and third defendants, at the request of the third defendant. It is to be noted that when he was examined before the Court as P.W.2, he has taken a contrary stand than his pleadings. Whereas, in his evidence, he has stated as if at the request of Durairaj, the husband of the plaintiff, he has executed sale deeds in favour of the second and third defendants. Contrary stand taken in the chief-examination than his pleadings clearly indicates that the first defendant's evidence is totally unbelievable and he has totally colluded with the plaintiff to defeat the rights of the second and third defendants. Contrary stand taken in the chief-examination than his pleadings clearly indicates that the first defendant's evidence is totally unbelievable and he has totally colluded with the plaintiff to defeat the rights of the second and third defendants. Though the plaint proceeded as if the defendants are just making an attempt, nowhere, it is stated that the second and third defendants are the sons born to Durairaj. Exs.B.1 and B.2 sale deeds executed by the first defendant in favour of the second defendant and Kamalambal as guardian of the third defendant, itself clearly indicate that the father of the second and third defendants is none other than the said Durairaj. 16. It is also brought to the notice of this Court by the learned counsel appearing for the appellants/defendants that in the earlier suit between the same parties, the legal heir issue was the main issue. A Division Bench of this Court has factually found that Durairaj contracted second marriage and through the second wife, the second and third defendants born to the said Durairaj. The above appeals were decided by this Court in A.S.Nos.926 of 1992 and 986 of 1993, on 11.08.2017. The appeal filed against the judgment before the Supreme Court also appears to have been dismissed with liberty to file a Review Application before this Court once again. Thereafter, Review Application (MD)No.208 of 2017 was filed before this Court. A Division Bench, considering the review, once again, dismissed the Review Application, as against which, a Special Leave Petition was also filed in S.L.P.(Civil)No.34452 of 2018. The same was also dismissed by the Apex Court on 04.11.2019. Therefore, the above judgments prove the relationship of the second and third defendants with the husband of the plaintiff and only in order to know the relationship between the parties, the above judgments were referred to herein. 17. Be that as it may, P.W.2, having filed such written statement, in his evidence, admitted that he has not engaged any lawyer to file any statement before the Court. This fact clearly shows that he is only the men of the plaintiff to defeat the sale deeds Exs.B.1 and B.2. It is also to be noted that immediately after Ex.A.1 of the year 1972, the property tax was changed in the name of the first defendant. Exs.A.2 to A.11 are the -property tax receipts. This fact clearly shows that he is only the men of the plaintiff to defeat the sale deeds Exs.B.1 and B.2. It is also to be noted that immediately after Ex.A.1 of the year 1972, the property tax was changed in the name of the first defendant. Exs.A.2 to A.11 are the -property tax receipts. It is the contention of the plaintiff that though the name change has been effected in the name of the first defendant, she has paid the property tax. It is to be noted that when the first defendant has not even engaged any lawyer to file his defence and he did not know the name of the lawyer, who was engaged, his documents going to the hands of the plaintiff for the purpose of suit is more possible. Be that as it may, to show that the plaintiff was continuously exercising her right as owner of the suit property even after the sale deed Ex.A.1, no other documents whatsoever filed. Ex.A.12 'A' Register was obtained only on 17.07.1996 after the suit. Similarly, extract of the plan of the so called building was also obtained only on 31.07.1996 and the Chitta pertaining to Pudupattinam Village issued by the Village Administrative Officer was filed as Ex.A.14. The same cannot be looked into for any other purpose, unless the author of the certificate has been examined. The Courts below have given undue importance to the after suit documents, to show that the plaintiff is in possession of the suit property. 18. It is further to be noted that all other documents relate to only electricity receipts for connection No.7479. Except this, no other documents whatsoever filed to show the actual control over the suit property. It is the contention of P.W.1 in his evidence that only the plaintiff has constructed a building. But, there is no evidence whatsoever available on record. It is also to be noted that P.W.1 himself admitted that there is a tenant named Krishnaswamy in the suit property. Whereas, it is the specific case of the second defendant in his evidence that Krishnaswamy is the tenant under him and the third defendant. They have also filed tenancy agreements executed by Krishnaswamy in the year 1991. As stated by P.W.1, if Krishnaswamy was a tenant under the plaintiff, how the documents namely Exs.B.3, B.4 and B.5 tenancy agreements could be filed by the defendants. They have also filed tenancy agreements executed by Krishnaswamy in the year 1991. As stated by P.W.1, if Krishnaswamy was a tenant under the plaintiff, how the documents namely Exs.B.3, B.4 and B.5 tenancy agreements could be filed by the defendants. If really Krishnaswamy was a tenant under the plaintiff, the plaintiff could have examined him before the Court. Whereas, the defendants have filed rent agreements executed by the said Krishnaswamy. Similarly, the defendants also filed documents to show the name change effected in the municipal records and Krishnaswamy was a tenant, who has paid the tax and several tax receipts have been filed from the year 1992 till 1997. As already indicated, P.W.2, the first defendant has not even filed a defence by engaging a lawyer. The above facts have clearly proved that the defence was also set up by the plaintiff. It is also to be noted that though, in his chief-examination, he has stated that he has not received any consideration, in the cross-examination, he has categorically admitted that only at the instructions of Durairaj, the father of the second and third defendants, he has executed sale deeds. Exs.B.1 and B.2, when carefully seen, under Ex.B.1, sale consideration is shown as Rs.16,000/- and under Ex.B.2, Rs.28,200/- shown as sale consideration. The evidence of D.W.1 also clearly shows that subsequent to the sale deeds, stamp duty was also paid for the market value of the property. It is the categorical evidence of D.W.1 that though D.W.1 was 19 years at the relevant point of time and his brother was 16 years, sale consideration was paid by Durairaj, his father. The evidence of D.W.1 that the sale consideration was paid by the father Durairaj, is not at all denied in the entire cross-examination. D.W.1 is a party to the document and he has categorically stated that at the time of execution of the document, his father has paid consideration to the first defendant. When such evidence is not denied in the cross-examination in entirety, it deemed admission on the part of the plaintiff. When the evidence of the first defendant itself shows that he has not engaged any lawyer to file his defence, the same clearly gives an inference that the defence was set up by the plaintiff by engaging the lawyer for the first defendant to support her case. 19. When the evidence of the first defendant itself shows that he has not engaged any lawyer to file his defence, the same clearly gives an inference that the defence was set up by the plaintiff by engaging the lawyer for the first defendant to support her case. 19. It is also relevant to note that the defence set up by the first defendant in the written statement is also falsified by the own evidence of P.W.2. It is his contention in the written statement that Exs.B.1 and B.2 were executed at the request of the third defendant after the death of Durairaj. Whereas, the own plaint pleadings indicate that Durairaj died in the year 1989. Therefore, the very defence pleaded in the first defendant's written statement that the sale deeds were executed only after the death of Zamindar is highly unbelievable, because of the fact that the sale deeds were executed in the year 1985 during the life time of the father of the second and third respondents. This fact clearly probabilised the defendants' case that the sale consideration set out in Exs.B.1 and B.2 were paid by Durairaj, the father of the second and third defendants. 20. The suit has been filed in the year 1992. As already discussed, the plaintiff having sold the property in the year 1972, seeking to avoid the documents after 20 years, she has not sought any declaration to cancel the document. If any document sought to be cancelled or avoided, the limitation for filing suit is three years as per Article 59 of the Limitation Act, 1963. Whereas, the suit has been filed after 20 years of the sale under Ex.A.1. 21. It is also to be noted that to establish that the alleged transaction is only a benami and not supported by any consideration, the circumstances, i.e., to prove the motive, if any, for giving the transaction a benami colour, also to establish that the position of the parties and the relationship, if any, between the plaintiff and the alleged benami. The custody of the title deeds after the sale, are relevant consideration. Possession of the original title deeds is also relevant to decide the nature of transaction. The custody of the title deeds after the sale, are relevant consideration. Possession of the original title deeds is also relevant to decide the nature of transaction. Though, in the plaint, it is pleaded as if original title deeds handed over to the husband were found missing, except pleadings, no evidence available on record to show that the original title deeds were with the husband of the plaintiff. The plaintiff has also not come before the Court to assert her right. Only her Secretary was examined. Further, there was no motive established for executing any transaction in favour of the first defendant in the year 1972. Admittedly, the plaint pleadings indicate that the first defendant is not a relative. Whereas, the plaintiff's husband was a Zamindar. Therefore, unless the relation between Durairaj and the first defendant was established by the plaintiff to contend that the document was executed only as a benami, the contention of the plaintiff cannot be countenanced. The evidence of P.W.2 itself clearly shows that he was working under some other family and he was no way connected with the family. Therefore, the contention that only as a benami transaction, the property was registered in the name of the first defendant cannot be countenanced. As already held, there is absolutely no evidence on the side of the plaintiff to prove the motive for giving the transaction as benami colour. The relationship was also not established and the possession of the original title deeds was also not established. 22. It is also relevant to note that from the date of sale in the year 1972 till the sale in the year 1985 under Exs.B.1 and B.2, except contending that she was in possession and producing some tax receipts in the name of the first defendant, no other documents were available to show that the plaintiff had actual control over the property and perfected title by way of adverse possession. 23. In the judgment reported in 2007 (6) SCC 100 [Binapani Paul v. Pratima Ghosh], wherein, at Paragraph No.36, the Apex Court has held that where the party claiming transaction to be a benami one has not chosen to examine herself as a witness, an adverse inference should be drawn against her. Similarly, in the same judgment, the Apex Court has held that the transaction claiming to be a benami transaction, the entire onus lay on the party. Similarly, in the same judgment, the Apex Court has held that the transaction claiming to be a benami transaction, the entire onus lay on the party. The plaintiff herself has not come before the Court and, therefore, necessarily, this Court has to draw an adverse inference against her. 24. Ex.A.1, when carefully seen, clearly indicates that prior to the sale, there was an agreement of sale between the plaintiff and the first defendant. When the recitals clearly show that there was an agreement between the parties with regard to the sale of property, the parties cannot go beyond the terms of the contract, which was reduced and registered as per law. Once transaction is entered between the parties, heavy burden lies on the party to show that the transaction is sham and nominal. 25. The Apex Court in the judgment reported in 2009 (5) SCC 713 [Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo], has held that the registered sale deed carries presumption that the transaction was a genuine one and if the execution of sale deed is proved, onus lies on the party to prove that the sale deed was not executed and it was a sham and nominal. 26. Further, except contending that before the sale by the first defendant in favour of the second and third defendants, the plaintiff perfected title by adverse possession in Paragraph No.8(A) of the plaint, there is no pleading as to when possession has become hostile, what was the nature of possession, whether possession was hostile to the first defendant and continuous adverse to the knowledge of the first defendant. In the absence of any pleadings and evidence, the finding of the Courts below that the plaintiff perfected title by adverse possession also cannot be countenanced, when the possession itself has not been properly established. Whereas, the Courts below wrongly shifted the burden on the defendants to prove the question of possession. The documents of the plaintiff, namely, Exs.A.20 and A.21-certified copies of the telegrams show that the defendants, in fact, are in possession and making an attempt to change the service connection. Further, to contend that only the plaintiff was in possession and put up construction, no material whatsoever filed on record to show that the plan was approved to put up construction. Further, to contend that only the plaintiff was in possession and put up construction, no material whatsoever filed on record to show that the plan was approved to put up construction. Therefore, merely on the basis of the receipts, part of the receipts obtained after the suit, one cannot establish adverse possession. The Courts below have, in fact, not analysed the facts properly and shifted the burden wrongly on the defendants and simply carried away by the after suit documents without deciding the plea of benami transaction. Further, no declaration sought to cancel the documents either Ex.A.1 or Exs.B.1 and B.2, within the period of limitation as per Article 59 of the Limitation Act, 1963. Such being the position, the plaintiff cannot succeed in the suit for declaration and injunction. Accordingly, all the substantial questions of law are answered in favour of the appellants. 27. In fine, the Second Appeal stands allowed and the judgment and decree of the Courts below are, hereby, set aside and the suit in O.S.No.102 of 1995 is dismissed. No costs.