JUDGMENT : Goutam Bhaduri, J. Heard. 1. The present appeal is against the judgment and decree dated 18.10.2019 passed in Civil Suit No.7A/2016 by the 3rd Additional District Judge, Raipur, whereby the suit filed by the father/respondent/plaintiff against the daughter-in-law and the son (appellants/defendants), claiming ejectment over the shop bearing Khasra No.1061/4 admeasuring 160 sq. feet was decreed. Further the permanent injunction was also passed in favour of the plaintiff not to disturb the possession of the plaintiff of the suit shop. 2. The brief facts of the case are that:- a suit was filed by the respondent/plaintiff pleading, inter alia, that he owns a shop situated at Pandit Sunder Lal Sharma Ward No.66, Mahadev Ghat Road, Main Road, Ashwini Nagar, Raipur, Tehsil & District Raipur which is comprised over Khasra No.1061/4 admeasuring 160 sq. feet. The plaintiff contended that the said shop was purchased from one Shashi Rani Kaushal by a registered sale deed dated 28.07.2010 (Ex. P-2). After the said purchase, the name of the plaintiff was recorded in the suit shop; according to the plaintiff said shop was being run by him and his son i.e. the appellant/defendant herein. According to the plaint, the son was indulged in an illegal business of diamonds for which a case was registered against him and when the father asked his son to refrain from such business/illegal activities, in turn he was abused and threat was extended that the father would be inculpated in a false criminal case of narcotics. The father, therefore, became scared, inasmuch as, in the year 2014-15 certain criminal cases were to the credit of his son i.e. the appellant/defendant; consequently, on a report by the father, the son executed a document on 26.02.2015 (Ex. P-8) wherein the son agreed to vacate the premises by a certain date; plaintiff further asserted that the defendant tampered with the electric meter which was installed in the said shop and theft of electricity was made wherein the plaintiff had to pay an amount of Rs.50,000/- by way of compromise amount. Consequently, the appellant/son and the daughter-in-law filed a suit for declaration before the 4th Civil Judge, Class- II, Raipur so as to usurpt the property. Consequently, the appellant/son and the daughter-in-law filed a suit for declaration before the 4th Civil Judge, Class- II, Raipur so as to usurpt the property. In the said case, the interim prayer was rejected which too was affirmed in the appeal; plaintiff contended that the subject suit shop is bona fidely required by the respondent/father for his survival, therefore, sought for vacant possession of the suit shop; per contra, the appellants/defendants denied all the averments in turn it was stated that the said shop was never in possession of the plaintiff and actually the property was in the name of Surendra, the brother of the appellant No.2 but deceptively the same was got transferred in the name of the plaintiff and an agreement of 26.02.2015 was executed and it was alleged to be relinquishment deed in a police Station under due pressure; primary contention of the son defendant No.2 was that actually the property in question was purchased by him in name of father out of love & affection, therefore, the father is not entitled to any relief; counter claim was also filed wherein it was stated that the property was a joint family property and the property in question was actually purchased from the sale proceeds of a joint property and it was not the exclusive property of the father. It was stated that initially the ancestral property of Kankali Talab was sold and out of the sale proceeds the property was purchased at Ashwani Nagar, wherein all the family members were residing; after selling of the same the subject suit property was purchased at Ashwani Nagar and house was constructed, therefore, it was purchased from a proceeds of sale of joint property. Apart from those averments, other averments were made that apart from the said property the plaintiff owns different property at different part of the city; the plaintiff also filed reply to the counter claim and denied all the adverse averments and it was stated that the property in question was purchased from the self acquired income of plaintiff/father and it being so the son will not get any right or title in the said property i.e. the suit property and prayed for ejectment further; on the basis of the pleading of the parties, the issues were framed and in respect of the suit property which is comprised over Khasra No.1061/4 admeasuring 160 sq. feet the Court of learned Additional District Judge held that the said property belongs to the exclusive property of plaintiff/respondent and accordingly ordered for ejectment; as against the counter claim the issue framed whether the suit property belongs to the defendant or not?, the Court held it in negative and though the other issues were framed but those issues were not germane to the dispute and accordingly learned Additional District Judge Court decreed the suit in favour of the plaintiff/respondent; and the Court further held that the defendants have also relinquished their right in respect of the suit property and passed the decree. Hence this appeal by the defendants. 3. Learned counsel for the appellants/defendants would submit that the entire issue revolves upon as to whether the subject property was a joint property or not? He would further submit that the pleading and the evidence which contains the admission of the plaintiff would show that the suit property is a joint property purchased from the sale proceeds of earlier joint property, therefore, the plaintiff would not get any exclusive right or title. Referring to the statement of prosecution witness and the defendant, the counsel would submit that proof of the existence of joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon anyone asserting that any item of property is joint to establish the fact. He placed his reliance in the cases of Surendra Kumar Versus Phoolchand & Anr. { (1996) 2 SCC 491 }, D.S. Lakshmaiah & anr. Versus L. Balasubramanyam & anr. { (2003) 10 SCC 310 } and Vinod Kumar Dhall Versus Dharampal Dhall & ors. { (2018) 16 SCC 645 } to submit that according to the evidence, they were living together jointly and after sale of the property at Ashwani Nagar the suit property was purchased. Referring the statement of Tulsiram Patwa (PW-1), he would submit that there is nothing on record to show that the plaintiff has sufficient income to purchase the suit property, consequently, presumption would be otherwise to hold that the property was a joint though it was purchased in name of father. 4. He would further submit that the agreement Ex. P-8, by which relinquishment is effected is not a registered deed, therefore, would be hit by Section 17 (1) of the Indian Registration Act. 4. He would further submit that the agreement Ex. P-8, by which relinquishment is effected is not a registered deed, therefore, would be hit by Section 17 (1) of the Indian Registration Act. So the finding of the Court below on this aspect would be illegal to hold the validity of such agreement. He further placed his reliance in the law laid down by the Supreme Court in the cases of Yellapu Uma Maheshwari & anr. Versus Buddha Jagadheeshwararao & ors. { (2015) 16 SCC 787 } and Subraya M.N. Versus Vittala M.N. & ors. { (2016) 8 SCC 705 } and would submit that the finding of the learned Court below is therefore, perverse which needs interference by this Court. 5. Per contra, learned counsel for the respondent/plaintiff would submit that the perusal of the documents would show that the suit property was a property purchased from the self earning of the respondent/plaintiff, inasmuch as, the suit property was a second one which was existing adjacent to an earlier property which was already there. He would further submit that initially from a property at Kankali Para, which was an ancestral property, after sale of the said property the joint property was purchased at Ashwani Nagar and after sale of Ashwani Nagar property the amount was distributed and out of proceeds all co-sharer therein had purchased different individual properties and thereby suit property was out come of those proceeds and is self acquired. Referring to the document Ex. P-8, he would further submit that the defendant admitted the fact that the suit property was a self acquired property of the plaintiff, therefore, no evidence is required to rebut the same and, as such, the order of the Court below is well merited which do not call for any interference. 6. We have heard learned counsel for the parties at length and perused the record. 7. The plaintiff/father, claiming ejectment against his son and daughter-in-law, has relied on the acquisition of property by Ex. P-2 as a self acquired property. Ex. P-2 is a document which purports that the suit property in question was purchased from one Shashi Rani Kaushal by Tulsiram Patwa the respondent/plaintiff for a sale consideration of Rs.4,65,000/- on 28.07.2010. The municipal tax receipt Ex. P-1 also shows that the property is recorded exclusively in name of the father. Perusal of Ex. Ex. P-2 is a document which purports that the suit property in question was purchased from one Shashi Rani Kaushal by Tulsiram Patwa the respondent/plaintiff for a sale consideration of Rs.4,65,000/- on 28.07.2010. The municipal tax receipt Ex. P-1 also shows that the property is recorded exclusively in name of the father. Perusal of Ex. P-2 the endorsement made at the Sub-Registrar office shows that the amount of consideration was paid by the purchaser Tulsiram Patwa alone. In the plaint averments it is stated that the suit property was purchased by the plaintiff alone. 8. The daughter-in-law/defendant No.1 has stated that the suit property was purchased by Virendra Kumar Patwa i.e. her husband, the defendant No.2, in name of his father Tulsi Ram Patwa out of love and affection. The defendant No.2 the son has also endorsed the same averments that the suit property was purchased by him in name of his father out of love and affection. The daughter-in-law/defendant No.1 in the additional pleading in her written statement stated that her husband i.e. defendant No.2 had purchased the property and he is the actual owner. Therefore, contradictory averments are made as against the pleading. When specific plea was taken by the defendant that the suit property was exclusively purchased by them from their own income not from the proceeds of a joint family, then subsequently they cannot be allowed to twist to say that the property in question was purchased from the proceeds of a joint family. 9. According to the defendants' written statement, the purchase of the property (Ex. P-2) is said to be a Benami Transaction for all practical purpose, it being a first defence. 10. The Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as 'the Act, 1988') was promulgated on 05th of September, 1988. Section 4 of the Act, 1988 prohibits the right to recover property held benami. Section 4 of the Act, 1988 reads as under:- “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. 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.” 11. The Supreme Court in R. Rajagopal Reddy (DEAD) BY LRS. Versus Padmini Chandrasekharan (DEAD) BY LRS.{ (1995) 2 SCC 630 } has held that Section 4 (1) of the Act, 1988 which creates a bar to bring a suit, claim or action to enforce any right in respect of any property held benami though was inserted on 19.05.1988 but even if the property was purchased prior to that the suit to declare it Benami shall not be permitted to be entertained or admitted to the portals of any Court. The Supreme Court at para 11 has held that clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4 (1). It has further held that with respect to the view taken by that Section 4 (1) would apply even to such pending suits which were already filed and entertained prior to the date when the Section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). The Supreme Court also held that it has to be visualised that the legislature in its wisdom has not expressly made Section 4 retrospective. The Supreme Court also held that it has to be visualised that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the Section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. 12. The said proposition further followed in G. Mahalingappa Versus G.M. Savitha { (2005) 6 SCC 441 } wherein the Supreme Court reiterated the judgment rendered in R. Rajagopal Reddy (supra) and held thus in para 18 & 19:- 18. In para 11 of the said decision of this Court, the Supreme Court further observed: "On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any court for seeking such a relief after coming into force of Section 4(1)." 19. In the same paragraph the Supreme Court observed: "With respect, the view taken that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). It has to be visualized that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and hence after Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive." 13. Applying the aforesaid principles in the instant case, the defence of the appellants cannot be considered for the reason that it would be against the statutory mandate. 14. Now turning back to the another defence which is raised by the counter claim in the written statement and contrary to the first part of the defence, the defendant has asserted that the property in question was purchased from the proceeds of sale of joint family property and it was stated that initially the property at Kankali Talab of Raipur of late Thukel Prasad Patwa was sold and Ashwani Nagar property was purchased wherein entire family used to reside and by the time the property of 1200 sq. feet at Ashwani Nagar was purchased wherein house was constructed, which is the suit house. 15. The additional pleading further says that apart from it other properties were purchased. According to the defendant No.2 the suit property was part of 1200 sq. feet of open land whereas compared to with Ex. P-2 it shows that it was an immovable property compromised of superstructure i.e. the shop of 160 sq. feet. The description of the said property also (Ex. P-2) shows that to the west another property of Patwa is shown. In the evidence, Tulsiram Patwa (PW-1) has stated that at Kankali Para, the original joint property i.e. house, they all were living together thereafter it was sold and after selling the same Ashwani Nagar property was purchased. feet. The description of the said property also (Ex. P-2) shows that to the west another property of Patwa is shown. In the evidence, Tulsiram Patwa (PW-1) has stated that at Kankali Para, the original joint property i.e. house, they all were living together thereafter it was sold and after selling the same Ashwani Nagar property was purchased. A suggestion was admitted in the evidence that besides the suit shop another property situates which belongs to them and at that time they were living together. 16. The plaintiff witness Ashish Kumar Agrawal (PW-2) in his cross-examination volunteered that Tulsi Ram Patwa had purchased the property from his self earning. The cross-examination to those facts are vague for the reason that to which property it denotes and reference was made is not clear but refers to house of Ashwani Nagar whereas the suit property is a shop purchased by plaintiff. 17. The defendant Pratima Patwa (DW-1), she stated that after her marriage the suit property was purchased from a joint earning, whereas in the written statement she has stated that it was purchased exclusively by the funding of her husband. Perusal of the statement of Pratima Patwa (DW-1) it appears that earlier they had filed a suit for temporary and permanent injunction before the Civil Judge Class-II against plaintiff/father in respect of same property claiming injunction but nothing has been placed on record to show what was the fate of it except to the admission of filing. Therefore, inference can be drawn that to claim the same property to be their own and claiming injunction already stand rejected. Further she stated that she is not in know of the fact that whether to purchase the suit property her husband has advanced the fund. So again a negative statement is made. She further volunteered that apart from the suit property the plaintiff do not have any source of income and she is ready to pay an amount of Rs.6000/- as a rent to her father-in-law/plaintiff if they are allowed to stay in the house. 18. Likewise the son Virendra Kumar Patwa in his deposition stated that the suit property was purchased on 14.07.2010 by him in name of his father being the Karta of the Hindu family. 18. Likewise the son Virendra Kumar Patwa in his deposition stated that the suit property was purchased on 14.07.2010 by him in name of his father being the Karta of the Hindu family. With respect to the sale consideration he stated that the suit property was purchased for Rs.10,00,000/-, however, he do not have any document to support the same. Whereas, the document Ex. P-2 i.e. the sale deed would show that the sale consideration was shown as Rs.4,65,000/-. The defendant though stated that he had paid the money but nothing is on record to infer that consideration was paid from proceeds of joint family property. 19. Perusal of the statement of Pratima Patwa (DW-1) would show that according to her knowledge other properties existed at Changorabhata Raipur the property is in name of her mother-in-law Shyamvati, at Raipur one flat is in name of Narayan Patwa, at Kukurbeda some property is in name of father-in-law, at Boriyakhurd a flat is in name of Vishnu Patwa and at Mana some property and the house in the name of Bade Bhaiyya. According to the evidence one daughter of plaintiff Anuradha is married and the other sons are possessed with some property at certain places. 20.The Supreme Court in the case of D.S. Lakshmaiah & anr. Versus L. Balasubramanyam & anr. { (2003) 10 SCC 310 } has reiterated the law laid down by the privy council in the case of Appalaswami v. Suryanarayanamurti { AIR 1947 PC 189 } wherein it was laid down that proof of the existence of joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon anyone asserting that any item of property is joint to establish the fact. Here in the instant case no evidence is on record to draw such presumption. The defendant tried to show that the family possessed some joint property and which may have formed the nucleus from which the property in question may have been acquired but to establish those facts the evidence should have been on record to draw such presumption to shift the burden otherwise. 21. In view of the foregoing discussions, we are of the view that the judgment and decree passed by the Court below is well merited which do not call for any interference. 22. 21. In view of the foregoing discussions, we are of the view that the judgment and decree passed by the Court below is well merited which do not call for any interference. 22. Accordingly, the appeal fails and is hereby dismissed. The appellants/defendants shall bear the cost of the suit. 23. A decree be drawn accordingly.