Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1909 (ALL)

Padam Prakash Gupta v. Chhotey Lal

2023-08-09

SIDDHARTHA VARMA

body2023
ORDER : 1. The instant second appeal has been filed by the defendant for the setting aside of the judgement of the First Appellate Court dated 18.3.1983 passed in Civil Appeal No. 477 of 1981. 2. A suit being Original Suit No. 249 of 1978 was filed by one Chhotelal Gupta, the plaintiff-respondent against his own brother Sri Padam Prakash Gupta. The allegations in the plaint were that the plaintiff-respondent and the defendant who were real brothers and had a great affection for each other proposed to purchase a plot no. 290, Block K Scheme II, Kidwai Nagar, jointly. It has been alleged in the plaint that the plaintiff negotiated the sale with the owner Smt. Ahmadi Begam who had agreed to sell the plot in question for a consideration of Rs. 20,000/-and for that purpose, an agreement to sell was also executed on 15/17.6.1971 between the plaintiff and Smt. Ahmadi Begam. 3. The plaintiff-respondent’s further case had been that the plaintiff-respondent had paid Rs. 11,000/-from time to time and had obtained receipts of the amounts which were paid to the proposed seller. As per the plaint allegations, on 17.6.1971 Rs. 1,000/-; on 14.7.1971 Rs. 4,000/-; on 24.10.1971 Rs. 300/-; on 3.6.1972 Rs. 200/-and on 14.6.1972 Rs. 5,500/-were paid. 4. Further case of the plaintiff-respondent was that considering the financial position of the plaintiff-respondent, the defendant, the brother, had concluded that making a construction over the plot would be difficult unless the defendant who was a Government Employee applied for a loan and, therefore, the sale deed was got executed on 24.6.1972 in the name of the defendant. The plaintiff-respondent further had stated that he had again paid a sum of Rs. 4,000/-to the vendor on the date of the execution of the sale deed. This amount was the balance of the consideration which had to be paid. The plaint allegation therefore is that the sale deed was executed in the name of the defendant, benami. 5. The defendant-appellant in the instant case filed a written statement and though he admitted his relationship with the plaintiff-respondent, he denied the other allegations of the plaint. He had stated that the plaintiff had earlier entered into an agreement with Smt. Ahmadi Begam but when he could not make the payment then the defendant had agreed to buy the property from Smt. Ahmadi Begam. He further claimed that he paid Rs. He had stated that the plaintiff had earlier entered into an agreement with Smt. Ahmadi Begam but when he could not make the payment then the defendant had agreed to buy the property from Smt. Ahmadi Begam. He further claimed that he paid Rs. 6,000/-to Smt. Ahmadi Begam on 12.6.1972 before the execution of the sale deed and that he had paid Rs. 9,000/-at the time of the execution of the sale deed and, therefore, he claimed that he was the sole owner of the plot in question. He claimed that he was buying the land at Rs. 15,000/-which was earlier being sold to the brother for Rs. 20,000/-. The Trial Court framed three issues which were as follows:- 1. Whether the plaintiff is co-owner of the disputed plot no. 290 situated in Block K, Scheme II, Kidwai Nagar, as alleged in Plaint? 2. Whether the defendant is the exclusive owner of the disputed plot as contended in written statement. 3. To what relief, if any, is the plaintiff entitled? 6. With regard to issues no. 1 and 2, the Trial Court held that the defendant was the actual owner of the plot no. 290 situate in Block K, Scheme II, Kidwai Nagar, and decided the issues in favour of the defendant and against the plaintiff. In view of the finding so given, the Suit was dismissed 28.4.1981. 7. The plaintiff filed an Appeal which was numbered as Civil Appeal No. 477 of 1981. The Appellate Court looked into the evidence de-novo and concluded that the plaintiff had a case and, therefore, allowed the appeal and decreed the Suit. While decreeing the Suit it formulated a point for determination which was whether the plaintiff is a co-owner of the disputed plot or not. The First Appellate Court adverted to the various documentary evidence and also to the oral evidence which were there on record. The First Appellate Court upon looking at exhibit -1 which was the agreement to sell entered into between Smt. Ahmadi Begam and the plaintiff found that the agreement was there and that it further showed that a sum of Rs. 5,000 was paid in advance out of which Rs. 1,000/-was paid to Smt. Ahmadi Begam at the time of the execution of the deed itself on 17.6.1971. The First Appellate Court further relied upon the exhibit-11 which was the receipt of Rs. 4,000/-and concluded that Rs. 5,000 was paid in advance out of which Rs. 1,000/-was paid to Smt. Ahmadi Begam at the time of the execution of the deed itself on 17.6.1971. The First Appellate Court further relied upon the exhibit-11 which was the receipt of Rs. 4,000/-and concluded that Rs. 4,000/-were again paid to Smt. Ahmadi Begam on 4.7.1971. This receipt was at the back of the agreement deed itself. The First Appellate Court relying upon the exhibit – 4 which is a letter dated 24.10.1971 by Smt. Ahmadi Begam to the plaintiff held that, in fact, Rs. 300/-more were paid to Smt. Ahmadi Begam by the plaintiff. By adverting to exhibit – 8, the Appellate Court found that the seller Smt. Ahmadi Begam on 3.6.1972 had prayed for time for getting permission from the Nagar Palika and that she had also requested the plaintiff to give to her Rs. 200/-for meeting petty expenses and by that letter she had also expressed her willingness to adjust that amount towards the sale consideration. In fact on 3.6.1972 by exhibit – 9, Smt. Ahmadi Begam had also executed a receipt in favour of the plaintiff. Exhibit – 10 was relied upon by the First Appellate Court to conclude that on 13.6.1972 the seller had asked the plaintiff to further advance to her Rs.5,500/-. The exhibit -11 was the receipt issued by her upon the receipt of Rs.5,500/-. Thereafter, the sale deed was executed on 24.6.1972 i.e. after 10 days of the payment of Rs. 5,500/-by the plaintiff to Smt. Ahmadi Begam. 8. The First Appellate Court also relied upon the statements of the plaintiff-P.W.-1 and the P.W. 2 Sri Roop Narayan Bajpayee to conclude that the plot was purchased by both the brothers and that the plaintiff had paid Rs. 15,000/-for the purchase of the plot. The First Appellate Court upon looking into the documentary evidence as were filed by the plaintiff and by the defendant concluded that the agreement was executed between the plaintiff and Smt. Ahmadi Begam for the sale of plot. The receipts clearly went to show that the plaintiff from time to time was investing money for the purpose of getting the sale deed executed and that since the receipts could not be disbelieved it was concluded that Rs. 11,000/-were paid by the plaintiff to Smt. Ahmadi Begam before the sale was executed. 9. The receipts clearly went to show that the plaintiff from time to time was investing money for the purpose of getting the sale deed executed and that since the receipts could not be disbelieved it was concluded that Rs. 11,000/-were paid by the plaintiff to Smt. Ahmadi Begam before the sale was executed. 9. The First Appellate Court disbelieved the statement of the defendant which had stated that the plaintiff had not been able to raise resources enough for purchasing the plot and, therefore, he had sent words to him for negotiating the sale with Smt. Ahmadi Begam. The First Appellate Court found that Rs. 5,500/-were paid on 14.6.1972 and if the plaintiff was unable to proceed with the transactions then it would have taken some time for the defendant to collect money and to enter into the transaction. The First Appellate Court also disbelieved the statement of the defendant that he had paid Rs. 6,000/-to Smt. Ahmadi Begam before the date of the sale and that the amount was brought by his wife after she had taken it from her mother at Hardoi. The First Appellate Court refused to believe this statement of the defendant as the receipt of Rs. 5,500/-on 14.6.1972 was in favour of the plaintiff and if the wife of the defendant had brought that amount for being paid to Smt. Ahmadi Begam then she would have resented to the execution of the receipt in favour of the plaintiff (exhibit-12). The First Appellate Court also disbelieved the payment of Rs. 5,500/-by the wife of the defendant as this fact was also not stated in the sale deed. 10. Further, the First Appellate Court disbelieves the statement of the defendant saying that he had paid Rs. 6,000/-through his wife because when the plaintiff had sent the defendant a notice before the filing of the suit and when the defendant had replied to it on 5.8.1977, he had not mentioned anything about the giving of Rs. 6,000/-by his wife to Smt. Ahmadi Begam. In the reply to the notice though the allegation was that the relationship between the two brothers were strained, there was no mention about the fact that the defendant’s wife had paid Rs. 6,000/-to Smt. Ahmadi Begam. 11. 6,000/-by his wife to Smt. Ahmadi Begam. In the reply to the notice though the allegation was that the relationship between the two brothers were strained, there was no mention about the fact that the defendant’s wife had paid Rs. 6,000/-to Smt. Ahmadi Begam. 11. Another reason for the Trial to conclude that the plaintiff had not paid the money was the statement of the bank account of one Chhotelal of the Hindustan Commercial Bank. The First Appellate Court re-assessed the evidence and had given a finding of fact that the Bank account which the Trial Court had relied upon was of some other Chhotelal, different from the plaintiff and therefore no reliance on the bank account of that Chhotelal could be placed. The First Appellate Court also disbelieved the statement of Smt. Phoolmati Devi, the mother-in-law of the defendant. It also disbelieved the statement of DW-5, the contractor of PWD who had stated that he had lent Rs. 5,000 to the defendant and therefore the First Appellate Court, upon finding that definitely a large amount of money had been paid by the plaintiff, concluded that the plaintiff had also contributed towards the sale consideration and decreed the Suit and declared the plaintiff a co-owner of the disputed plot. When the second Appeal was filed, this Court had framed a question of law which was to the following effect: “The substantial question of law involved in the case is whether the finding of the lower Appellate Court that the plaintiff is the co-owner in the plot of land in Suit, although it was purchased in the name of the defendant-appellant alone, is vitiated in law.” 12. Learned counsel for the appellant Sri S.C. Verma assisted by Sri Padmakar Pandey argued that a transaction could not be partly Benami and partly genuine. Learned counsel for the appellant further argued that the first appellate court had wrongly interpreted the decision reported in 1944 0 AIR Allahabad 130 (Bans Narain vs. Chandrani Kuer). Learned counsel for the appellant further submitted that there was a definite burden upon the plaintiff to prove the plaint allegation that the transaction was a Benami one and in this regard, he has relied upon a judgement of the Supreme Court reported in JT 1992 (4) 454 (P. Satyanarayan Murthi vs. The State of Andhra Pradesh). Learned counsel for the appellant further submitted that there was a definite burden upon the plaintiff to prove the plaint allegation that the transaction was a Benami one and in this regard, he has relied upon a judgement of the Supreme Court reported in JT 1992 (4) 454 (P. Satyanarayan Murthi vs. The State of Andhra Pradesh). Learned counsel further stated that the plaintiff and the defendant could not have agreed that the plot would be purchased in the name of the defendant for the purpose of construction of the building on the plot in question. He submits that the defendant was still a temporary employee and a temporary employee never gets a loan. Learned counsel for the defendant/ appellant further submitted that the plaintiff had not provided any proof of the source of his income. 13. Learned counsel for the plaintiff-respondent Sri. R.K. Mishra, however, submitted that the receipts which were there on record dated 17.6.1971 for Rs. 1,000/-, 4.7.1971 for Rs. 4,000/-, 24.10.1971 for Rs. 300/-, 3.6.1972 for Rs. 200/-and 14.6.1972 for Rs. 5,500/-were definitely there on record. These receipts had gone unrebutted. He further relied upon the findings of the First Appellate Court and has submitted that none of the receipts were denied and also the signatures of the receipts of Smt. Ahmadi Begam were not denied. 14. Learned counsel for the plaintiff-respondent has also submitted that the loan was applied after the defendant had become a permanent employee and, therefore, the case which the plaintiff had taken that the defendant’ name was there on the sale deed for the purposes of getting a loan gets credence. 15. Learned counsel for the plaintiff-respondent also submitted that defendant had not filed any documentary evidence to show that he had contributed towards the sale consideration. He submits that the finding of the First Appellate court that the story of the wife bringing some money was disbelieved was a finding of fact which could not be disturbed by this Court. He also reiterates the reasons given by the First Appellate Court for disbelieving this finding and he laid much stress upon the fact that when the defendant had replied to the notice given by the plaintiff before the filing of the Suit, he had not mentioned about the payment of the Rs.6,000/- which had been allegedly lent by his mother-in-law. 16. 16. Having heard the learned counsel for the defendant -appellant and learned counsel for the plaintiff-respondent, this Court is of the view that he Second Appeal lacks merit and is liable to be dismissed. 17. The plaintiff has proved the plaint allegation to the hilt. The receipts which find mention in the plaint; all the money the plaintiff had paid on 17.6.1971, 4.7.1971, 24.10.1971, 3.6.1972 and 14.6.1972 totalling Rs. 11,000/-which were paid before the sale deed was executed and the payment of Rs. 4,000/-on 24.6.1972 have not been denied in any manner whatsoever by the defendant/appellant. In fact, the First Appellate has found that these receipts were there and the reason given by the Trial Court to disbelieve the payment have been disbelieved by the First Appellate Court in toto. What goes further in favour of the plaintiff is that the defendant, when had replied to his notice dated 17.6.1977 before filing of the Suit had not mentioned about the payments made by the defendant, as has been alleged in the written statement, and therefore, this Court is also of the view that the findings as have been arrived at by the First Appellate Court are unassailable. In fact, the substantial question of law as was framed on 3.8.1983 by this Court is thus not required to be answered in view of the findings of the First Appellate Court. 18. The Second Appeal is concluded by findings of fact. No interference is warranted and thus the appeal is dismissed.