Hanamantha Ranoji Vs. Sri Mahadev Channabasappa & Ors  INSC 322 (11
S.R.Babu Y.K.SABHARWAL J.
appellant and respondent no.4 are brothers.
nos. 2 and 3 are also brothers. Respondent no.1 is the son of respondent no.2.
Respondent no.4 came in possession of the property under rent note dated 24th December, 1968 executed in favour of respondent
no.1. His eviction was sought by respondent no.1 on the ground of non- payment
of rent and sub-letting. The eviction petition was filed some time in the year
1970. In answer to the eviction petition, the case set-up by respondent no.4
was that there was no relationship of landlord and tenant between the parties
and that had entered into an agreement with the vendors for the purchase of the
property. The said agreement was brought about in the name of his elder brother
because the family was joint. Respodents 2 and 3 had agreed to advance to him
Rs.15,000/- which was the balance amount payable to the vendors. By way of security
they insisted that the conveyance deed should be in the name of respondent no.1
and to cover the interest on the loan amount of Rs.15,000/-, Rent note dated
24th December, 1968 was executed. In fact there was no relationship of landlord
and tenant between the parties. An order of eviction was passed in favour of
respondent no.1 and against respondent no.4.
case set up by respondent no.4 was not believed.
no. 4 also failed in appeal and further in the revision petition preferred by
him before the High Court.
eviction order in respect of the property in question became final against
respondent no.4 and in favour of respondent no.1. The execution was pending. At
about this stage, the suit, out of which this appeal has arisen, was filed by
the elder brother of respondent no.4.
this suit, a decree for declaration was sought that the appellant is the owner
of the property and respondents 1 to 3 are entitled only to Rs.15,000/- with
a decree for injunction was also sought restraining respondents 1 to 3 from
disturbing his possession. The younger brother (respondent no.4) was impleaded
as defendant no.4 in the suit. The case set up in the plaint was that an
agreement dated 11th January, 1968 was entered into between the appellant and
vendors for sale of property in question for a consideration of Rs.19001/- ;
earnest amount of Rs.2,000/- paid and the sale deed was to be executed within
six months. On 10th July, 1968 vendors took Rs.1,000/- from the appellant and
extended the time for execution of sale deed upto 9th September, 1968. The time was further extended on payment of another
sum of Rs.1,000/- and that a public notice had given by the appellant. It was
published in "Vishala Maharashtra" on 10th September, 1968. The appellant was unable to arrange the balance
amount of Rs.15,000/-. Respondent nos.2 and 3 agreed to advance him the said
sum but they asked for sale deed in favour of respondent no.1. The sale deed is
said to have been executed in the name of respondent no.1 only to operate as
security for the amount of Rs.15,000/- advanced by respondents 2 and 3.
Substantially, the case of the appellant in regard to purchase of property was
the same as was the case set up by his brother in the eviction petition except
that in the said proceedings brother claimed ownership and in this suit elder
brother claimed ownership.
written statement respondents 1 to 3 took the plea that the suit was got filed
by respondent no.4, with a view to delay the execution of decree and delivery
of possession. They said that the appellant has never been in possession of the
suit property The averments in regard to purchase of the property as made in
the plaint were denied.
further pleaded that if the appellant was correct there was no reason for him
to remain quiet from 1968 up to the filing of the suit. The same plea was taken
by the brother in the eviction proceedings and having failed, suit in question
was filed. The revision petition filed by respondent no.4, against the appellate
authority confirming the order of evition was dismissed on 18th November, 1975.
High Court granted three months time i.e. up to 18th February, 1976 to vacate the premises. On the application of
respondent no.4 for extension of time till end of 19th May, 1976 the High Court
further granted time to him to vacate the premises. Since the premises were not
still vacated the execution proceedings were filed and during the pendency of
the said proceedings, as stated earlier, the suit in question was filed and the
ex-parte order of injunction obtained.
suit aforesaid for declaration and injunction was dismissed by trial court but
the judgment and the decree was set aside in appeal by Principal District
Judge, Belgaum and the suit was decreed as prayed.
Regular Second Appeal filed by the present respondent no.1, at the time of
admission, the following questions of law were framed: "1. Whether on
facts and circumstances of the case the plaintiff's suit is maintainable in
view of Sec.281-A of the Income Tax Act as amended by Taxation Laws (Amendment)
Whether on facts and circumstances of the case, respondent No.1 could be said
to be the owner of the suit property as held by the appellate Court?" In
view of the decision of this court in Mithilesh interpreting Section 4 of the Benami
transactions (Prohibition Act, 1988) and holding the said provision to be
retrospective in operation, the High Court without deciding the aforesaid said
questions, allowed the appeal and set aside the judgment and decree passed by
the First Appellate Court. The High Court held that the suit where the property
said to be held benami by present respondent no.1 would not be maintainable.
special leave petition was filed challenging the judgment of the High Court by
pointing out that in another case leave had been granted and this court may
have the occasion to reconsider Mithilesh Kumari's case. Under these
circumstances, the leave was granted on 3rd September, 1991.
court, however, noticed in the order dated 3rd September, 1991 that in view of
the decision of the High Court being based only on the decision of this Court
in Mithilesh Kumari's case, the High Court had not decided the other
contentions raised in the second appeal and the decision of this appeal may
take long time and it may cause unreasonable delay and hardship. Therefore, the
High Court was requested to forward to this court its findings on the other
points as well so that the matter can be disposed of finally as and when it
comes up for hearing. Both the parties had agreed to this course. The High
Court has forwarded its findings dated 20th April, 1994 to this court with a conclusion
that the First Appellate Court erred in allowing the appeal and decreeing the
suit. The High Court had recorded that: "1) That plaintiff has not proved
his title to the property.
sale deed dated 25.9.69 executed by Desai brothers in favour of first defendant
cannot be construed as a security document for the loan alleged to have been
advanced by the second and third defendants to the plaintiff.
Plaintiff has failed to establish his possessory title in the suit schedule
property 4) Plaintiff has failed to establish that he inducted the fourth
defendant as licensee.
Plaintiff has failed to prove that rent received by defendants 2 and 3 from
fourth defendant was by way interest to the loan advanced.
Plaintiff has failed to prove the possession of suit schedule property." Padmini
Chandrasekharan (dead) by Lrs. [(1995) 2 SCC 630], this Court has overruled the
decision in the case of Mithilesh Kumari and has held that the provisions of
Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 are not
retrospective in operation and do not apply to pending suits and entertained
prior to coming into force of Section 4.
suit of the appellant is not barred under the provisions of the Benami
Transactions (Prohibition) Act, 1988. That, however, does not conclude the
matter. In law and facts, the question still to be examined is whether the suit
of the appellant was rightly decreed by the First Appellate Court or not.
Learned counsel for the appellant contends that now in view of legal position
after Rajagopal Reddy's case, the matter may be remanded to the High Court for
fresh decision of the Regular Second Appeal which was filed by respondent no.1
challenging the judgment of the First Appellate Court. We, however, do not
think that it is necessary to remand the matter to the High Court in view of
the order passed on dated 3rd September, 1991 requesting the High Court to forward to this court its findings on
other issues as well. The said findings have been recorded in the order of the
High Court dated 20th
April, 1994 which has
already been sent to this Court inter alia holding that the First Appellate
Court erred in allowing the appeal of the appellant.
perused the order of the High Court dated 20th April, 1994 and the record of the case we find
no infirmity in the view expressed by the High Court. We are unable to accept
the contention of the learned counsel for the appellant that the High Court has
re- appreciated the evidence as if it was deciding the first appeal. It was
contended that the jurisdiction of the High Court was confined to the two
questions of law which were framed at the time of admission of the second
appeal and it had no jurisdiction to reappreciate the evidence as a First
Appellate Court. Though the High Court has observed that findings arrived at by
the First Appellate Court are not based on proper appreciation of the evidence
on record and the same are set aside but for all intents and purposes and in
substance the conclusion of the High Court is that the decision of the First
Appellate Court is based on no evidence and is perverse. We are in complete
agreement with the conclusions of the High Court. The High Court has rightly
drawn adverse inference on account of non- examination of respondent no.4 as a
witness by the appellant. On the facts and circumstances of the case that was
vital and was rather the heart of the entire matter going to the root of the
whole case. There was no explanation for non-examination of respondent no.4.
the decree of the First Appellate Court is based on no evidence and is
appellant had admittedly knowledge of the eviction petition filed by respondent
no.1 against his brother respondent no.1. On the facts of the case, it was over
simplification for the First Appellate Court to observe that what transpired
between the appellant and his brother was of no consequence in so far as the appellant
is concerned. It is evident that the appellant was set-up by his brother after
having lost in the eviction petition upto High Court and the suit was filed in
the year 1976 during the pendency of the execution proceedings of the eviction
order. We fail to understand what appellant was doing from 1968 upto 1976.
net result of all this has been that despite lapse of nearly 30 years since
filing of the eviction petition, respondent no.1 was unable to recover the
possession and that is despite the respondent no.1 having succeeded up to High
Court in the eviction case nearly a quarter century ago. For the aforesaid
reasons we dismiss the appeal with costs.
distressing to note that many unscrupulous litigants in order to circumvent
orders of Courts adopt dubious ways and take recourse to ingenious methods
including filing of fraudulent litigation to defeat the orders of Courts. Such
tendency deserves to be taken serious note of and curbed by passing appropriate
orders and issuing necessary directions including imposing of exemplary costs.
As noticed, despite eviction order having become final nearly a quarter century
ago, respondent no.1 still could not enjoy the benefit of the said order and
get possession because of the filing of the present suit by the brother of the
person who had suffered the eviction order.
these circumstances, we quantify the costs payable by the appellant to
respondent no.1 at Rs.25,000/-.