1. Defendant of Title Suit No.44 of 1987 is the appellant before this Court being aggrieved by and dissatisfied with the judgment and decree passed in the learned Assistant District Judge, 1st Court at Krishnagar, Nadia in Title Appeal No.121 of 1987 on 27th July, 1988 affirming the judgment and decree dated 6th May, 1987 and 16th May, 1987 passed in the aforesaid suit, the defendant has preferred the instant appeal.
2. One Promodh Chandra Das, plaintiff/respondent No.1, Subodh Ranjan Das the principal defendant and the appellant herein and Bimal Ranjan Das were three sons of one Abhay Charan Das, since deceased. Other proforma respondents are their kinsmen. The plaintiff filed Title Suit No.44 of 1987 for declaration of title, permanent injunction and partition in respect of 1/3 share in the suit the suit property on the pleading that the parties to the suit were originally residence of East Pakistan. Sometimes in 1949/1950 the plaintiff and his two brothers migrated to India and took shelter at Shibpur in the District of Howrah. Subsequently, the plaintiff and defendant No.1 secured job in the food department of the State of West Bengal. However, the defendant No.1/appellant was terminated from his service. Sometimes in the year 1953/54 the plaintiff, defendant No.1, proforma defendant No.2 and father of defendant No.3 purchased the suit property situated at mouza Uttor Bhavanipur within P.S Chakdaha in the district of Nadia together with some non suited properties in the names of the defendant No.1 and proforma defendant No.3 out of the fund from the joint family of the plaintiff/defendant No.1 and defendant No.2. Half of the purchase money was also paid by the father of the defendant No.3. The plaintiff was given to understand that as he was an employee under the State of West Bengal there might be some difficulty if the suit property was purchased in his name. However, since purchase the plaintiff, defendant No.1, proforma defendant No.2 and defendant No.3 jointly owned and possessed the suit property according to their respective shares. Subsequently on 13th December, 1954, there was an amicable partition amongst them and by virtue of the said partition, the plaintiff, defendant No.1 and proforma defendant No.2 jointly began to possess the suit property remaining proforma defendants started possessing their share separately from them. That on 10th May, 1955 the principal defendant No.1 executed a registered deed of patta in favour of the plaintiff and proforma defendant No.2 to the extent of 2/3rd share of the suit property at yearly rent of Rs.9/-. Principal defendant No.1 was entrusted to record the names of the plaintiffs and the proforma defendant No.2 in RS record of Rights during revisional settlement. The plaintiff blindly believed his brother that he would record the names of the plaintiff as well as proforma defendant No.1 in the Record of Rights. Subsequently, in 1977 the defendant No.1 disclosed that the plaintiff and proforma defendant No.2 had no share or right, title and interest over the suit property. The plaintiff approached the defendant No.1 for affecting amicable partition in respect of the suit property according to their share but he flatly refused to recognize the plaintiff and proforma defendant No.2 as joint owners of the said property. So the plaintiff instituted Title Suit No.34 of 1978 before the learned Munsif, Ranaghat.
3. The defendant No.1 contested the suit by filing written statement wherein he denied all allegations made out by the plaintiff against him. Specific case of the defendant No.1 is that he purchased the suit property on payment of half of the total consideration money. Subsequently there was a partition between him and proforma defendant No.3 and after partition he alone has been possessing the suit property. The plaintiff and proforma defendant No.2 has no right, title and interest over the suit property.
4. On the basis of the pleadings the learned Munsif framed as many as eight issues. Parties led their evidence in the trial court and on the basis of the evidence on record the learned Munsif by his judgment dated 6th May, 1987 decreed the suit on contest in preliminary form
5. The defendant/appellant preferred Title Appeal No.121 of 1987 in the court of the learned Assistant District Judge, 1st Court at Krishnagar. The said appeal was also dismissed affirming the judgment and decree passed by the learned trial court.
6. The defendant of the said suit has assailed the judgment and decree passed by the learned First Appellate Court affirming the judgment and decree passed by the trial court by filing the instant appeal before this Court. It is found from the record of the instant appeal that the appeal was admitted by the Division Bench of this Court vide order dated 11th January, 1995. However at the time of admission of appeal, no substantial question of law was formulated for adjudication of the appeal. Accordingly vide order dated 2nd November, 2017 a Coordinate Bench of this Court formulated the following substantial questions of law:-
(I) Whether the learned Courts below erred in law in not holding that the suit filed on behalf of the plaintiff was not maintainable for the reason of taking an alternative and inconsistent plea of title and tenancy under the provisions of Order VII Rule 7 of the Code of Civil Procedure;
(II) Whether the learned Courts below have erred in law in not holding that the onus of proof by Benami was upon the plaintiff and he has failed to discharge such onus on evidence and
(III) Whether the learned Courts below have erred in law holding that the defendant no.1 is debarred from taking the defence of Benami after the promulgation of Benami Transactions (Prohibition) Act, 1988 is absolutely erroneous inasmuch as the suit filed prior to the coming into effect of the said Act of 1988 not covering the case of the parties to the suit.
7. Thereafter by an order dated 10th December, 2019 this court framed additional substantial question of law for adjudication of the instant appeal as hereunder:-
(I) Whether both the Courts below erred in law in holding the suit maintainable without considering the specific bar contained in Section 51C of the West Bengal Land Reforms Act, 1955.
8. Thus, the instant appeal is heard on the above mentioned substantial questions of law.
9. Mr. Saptangshu Basu, learned Senior Counsel on behalf of the appellant specifically draws my attention to the plaint and submits that the plaintiff pleaded that the suit property was purchased from the joint nucleus fund of the family of the plaintiff, defendant No.1 and proforma defendant No.2, three sons of one Abhay Charan Das, since deceased. The plaintiff further pleaded that at the relevant point of time he used to work under Food Department, Government of West Bengal but the defendant had no employment. The suit property was purchased from the fund of the joint family of the plaintiff and defendants and money paid by the father of the proforma defendant No.3 in the names of defendant No.1 and proforma defendant No.3. thus, the case of the plaintiff is that the plaintiff, defendant No.1 and proforma defendant No.2 were the joint owners of the suit property and half of the consideration price was given to the vendor from the joint fund of the family of the plaintiff and his brothers. Thus, the plaintiff wanted to establish that though the suit property was purchased in the name of principal defendant and proforma defendant No.3, the plaintiff and proforma defendant No.2 are the joint owners in respect of the suit property. Again, it is pleaded by the plaintiff that sometimes in the year 1955 the defendant No.1 executed a registered putta in favour of the plaintiff and proforma defendant No.2. According to Mr. Basu the plaintiff cannot take such inconsistent plea of being the joint owners of the suit property and at the same time he is not permitted to claim tenancy under the defendant No.1. It is submitted by Mr. Basu that under Order VII Rule 7 of the Code of Civil Procedure, the plaintiff is entitled to claim a relief in the alternative and even in some cases, pray for inconsistent reliefs. But it must be shown by the plaintiff that each of such pleas is maintainable. When the plaintiff claims for partition on the plea of ownership over the suit property, plea of having patta from the defendant No.1 in respect of same property is not maintainable under the facts and circumstances of the case. Both the courts below failed to consider that the suit was not maintainable because the plaintiff prays for inconsistent reliefs on the basis of inconsistent pleas which is not maintainable. In other words, a person cannot claim right over a property as owner and at the same time as tenant. In support of his contention, Mr. Basu refers to a decision of the Hon'ble Supreme Court in the Case of Prem Raj vs. The D.L.F. Housing and Construction (Private) Ltd. & Anr. reported in AIR 1968 SC 1355.
10. Second limb of argument of Mr. Basu, learned Senior Counsel on behalf of the appellant is that both the courts below wrongly placed the burden of proving Benami upon the defendant. In order to substantiate his contention, he draws my attention to paragraph 8 of the plaint. It is stated in paragraph 8 that the plaintiff, defendant No.1 and proforma defendant No.2 contributed half of the consideration price from the earnings of their joint family and the remaining half of the consideration price was paid by the father of the proforma defendant No.3 to purchase the suit property as well as some non suited properties in joint names of defendant No.1 and profroma defendant No.3 in the year 1953/1954. At the relevant point of time, the plaintiff was a government service holder and profroma defendant No.2 was minor. So the half share of the property was purchased in the name of defendant No.1. Out of the half of the consideration price, the plaintiff given 2/3rd share of the money for himself and proforma defendant No.2, defendant No.1 given 1/3rd of the half of the consideration price and remaining half was paid by the father of the profroma defendant No.3. It was pointed out by Mr. Basu that according to the plaintiff 2/3rd portion of half of the consideration money was paid by the plaintiff to purchase the suit property but the entire suit property was purchased in the name of defendant No.1. Therefore, the plaintiff and proforma defendant No.2 was the real owner in respect of the suit property and the defendant No.1 was the name lender in respect of the alleged share of the plaintiff and proforma defendant No.2. Thus, the plaintiff initially pleaded the case of Benami Transaction in respect of the purchase of the suit property and he is under obligation to prove the same. Both the courts below did not consider the case of the plaintiff and wrongly placed the owners upon the defendant No.1 to prove that purported putta was a Benami Transaction. On the basis of the case made out by the plaintiff in paragraph 8 of the plaint it is narrated hereinabove, the plaintiff prayed for declaration in respect of 1/3rd share over the suit property. Since the plaintiff has failed to prove his case, he was not entitled to get any decree for declaration of title over 1/3rd share in respect of the suit property.
11. In this regard, Mr. Basu submits that in a case where it is asserted that an assignment in the name of the person is in reality for the benefit of another, the real test is the source whence the consideration came. But when it is not possible to obtain the evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probability and legal interference arising from proved or admitted facts. In the instant case there is absolutely no evidence of payment of consideration money from the joint fund of the family of the plaintiff and defendant No.1 and proforma defendant No.2. There is no evidence tell that the plaintiff and defendant No.1 used to reside in jointness, far less than payment of consideration money from the joint family fund. In support of his contention Mr. Basu refers to the following decision:-
(i) Vidyadhar Krishnarao Mungi and Ors. vs. Usman Gani Sahab Konkani & Ors : AIR 1974 SC 658
(ii) Smt. Rebti Devi vs. Ram Dutt & Anr. ETC : 1998 WBLR (SC) 17.
12. Referring to another decision of the Hon'ble Supreme Court in Bhim Singh (Dead) by Lrs and Anr. vs. Kan Singh reported in AIR 1980 SC 727, it is submitted by Mr. Basu that the principles governing the determination of question whether a transfer is a Benami Transaction or not should be considered taking into account the following circumstances:-
(1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction;
(2) If it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima-facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary;
(3) The true character of the transaction is governed by the intention of the person who has contributed the purchase money and
(4) The question as to what his intention was, has to be decided on the basis of the surrounding circumstances, the relationship of the parties the motives governing their action in bringing about the transaction and their subsequent conduct etc.
13. In the instant case, it is urged by Mr. Basu that the plaintiff failed to prove that money was paid from the fund of the joint family of the plaintiff and defendant No.1. From the plaint itself it is ascertained that the defendant No.1 used to carry on small business after he was terminated from service. Therefore, it is false to say that the defendant No.1 had no financial capacity to make payment of the half of the consideration money. There is absolutely no evidence that the plaintiff or proforma defendant No.2 ever possessed the suit property jointly with the defendant No.1. From the purchase deeds it is not found that the intention of the defendant No.1 was to purchase the suit property also for the plaintiff and proforma defendant No.2. In view of such circumstances the plaintiff's case of purchase of the suit property from the joint family fund cannot stand.
14. Mr. Basu further contended that in R. Rajagopal Reddy & Ors. vs. Padmini Chandrasekharan reported in (1995) 2 SCC 630, it was held that suits filed prior to the application of the Benami Transaction Prohibition Act, 1988 would not be hit by the provision under Section 4 of the said Act. The learned Courts below failed to appreciate that the plaintiff could not prove the ownership over the suit property. He also failed to prove that he was the real owner in respect of 1/3rd share of the suit property and in respect of his share, the defendant No.1 was merely a name lender.
15. It is further urged by Mr. Basu that the plaintiff has prayed for a declaration that the entries in the RS Record of Rights in the name of the defendant No.1 alone in respect of the suit property is wrong. In view of the specific provision of Section 51(c) of the West Bengal Land Reforms Act, such declaration cannot be granted by the Civil Court. According to the learned Senior Counsel for the appellant both the courts below failed to appreciate this aspect and accordingly the impugned judgments are liable to be set aside.
16. Mr. Amal Krishna Saha, learned Advocate on behalf of the respondent on the other hand submits that the defendant/appellant cannot dispute the issue of the maintainability of the suit at the stage of second appeal when the said issue was not pressed by him during the trial of the suit. In support of his contention, Mr. Saha refers to a decision of the Division Bench of this Court in the case of Premchand Manickchand vs. Fort Gloster Jute Manufacturing reported in AIR 1959 Cal 620. In the aforesaid decision the question that came up for adjudication before the Division Bench of this Court is as to whether a contract for sale of jute was void, in as much as it was a contract in contravention of Forward Contracts (Regulation) Act, 1952 and consequently the arbitration agreement contained in the said contract was also void. In paragraph 5 of the above mentioned report, the Hon'ble Chief Justice, as his Lordship then was speaking for the bench held as hereunder:-
"5. So far as the first ground is concerned, I do not think that it is open to the appellant to urge it in appeal. It is quite true that a ground of law, particularly one which goes to the legal validity of the entire proceedings, can be taken for the first time at any stage, but, in my view, when a party has raised such a ground and then deliberately abandoned it, he cannot be allowed to raise it again, before the court of appeal. This was not a case in which the learned Counsel for the appellant had merely omitted to urge certain points taken in the petition. He expressly abandoned the ground of the illegality of the contract and the learned Judge expressly placed that fact on record. In those circumstances, it seems to me that the appellant must be limited to the only ground which it urged before the trial Judge and must succeed or fail according as that point is established or is not."
17. In the instant case when the defendant abandoned the issue of maintainability of the suit on the point of inconsistent plea of title by the plaintiff and again right of tenancy over the self same property, the defendant cannot challenge the maintainability of the suit at the stage of first appeal. Mr. Saha also refers to the decision of this Court in Smt. Minati Sen @ D.P. Sen vs. Kalipada Ganguly reported in AIR 1997 Cal 386 in the said report the respondent raised an issue that both the Courts below did not consider as to whether the defendant/appellant was guilty for damaging the suit property by addition and alteration. This Court found that the said issue was not pressed by the plaintiff/respondent in the trial court and held that when the issue was not pressed by the plaintiff/respondent in the trial court, there was no justification for the appellate court to go into this question and decide the same in favour of plaintiff/respondent. When a party has raised an issue in the trial court and deliberately has abandoned it, he cannot be allowed to raise it again at the appellate stage.
18. It is alternatively submitted by Mr. Saha that even assuming that the question of maintainability of a suit on the ground of any legal prohibition can be decided during second appellate stage, the principle led down in by the Hon'ble Supreme Court in Prem Raj (Supra) is not applicable under the facts and circumstances of the case. In the said reported decision, plaintiff filed a suit for declaration that certain contract was void having been obtained by undue influence. Alternative plea of specific performance of the same contract was also taken by the plaintiff. The Hon'ble Supreme Court was pleased to hold that under Section 37 of the Specific Relief Act, 1877, a plaintiff suing for specific performance of contract can alternatively sue for rescission of the agreement and in the alternative sue for specific performance of contract. Section 35 of the Specific Relief Act states the principles upon which the rescission of contract may be adjudged but there is no provision in Section 37 or in other Section of the Specific Relief Act, 1877 that a plaintiff suing for rescission of the agreement may sue in the alternative for specific performance. The omission is deliberate and the intention of the Act is that no such alternative prayer is open to the plaintiff. The Hon'ble Supreme Court was further pleased to held that such a plea cannot be justified under Order VII Rule 7 of the Code of Civil Procedure though under this provision it is competent for the plaintiff to pray for inconsistent relief, it must be shown that each of such pleas is maintainable.
19. Coming to the instant case, it is submitted by Mr. Saha that in paragraph 4 of the plaint the plaintiff/respondent clearly pleaded that the suit property was purchased in the joint names of defendant No.1 and proforma defendant No.3 from the consideration price, half of which was paid from the joint family fund of the plaintiff, defendant No.1 and profroma defendant No.2. The rest of the consideration price was paid by the father of proforma defendant No.3. It was further pleaded that since the suit property was purchased in the name of the defendant No.1, in order to avoid further complications, the defendant No.1 executed and registered a patta in the name of the plaintiff and profroma defendant No.2 in respect of the suit property at an yearly rent of Rs.9/-.
20. Both the courts below held that the plaintiff became the raiyat in respect of the suit property on the strength of the said registered patta executed by defendant No.1. The defendant claimed in his written statement that the said patta was a benami transaction and cannot be taken into consideration by this Court. In view of such pleading, burden was on the defendant to prove that the registered deed of patta in favour of the plaintiff and proforma defendant No.2 was really a benami transaction. Since the defendant failed to prove the said fact, plaintiff's title over the suit property is established.
21. It is also urged by Mr. Saha that in view of the provision of Section 51(C) of the West Bengal Land Reforms Act, Civil Court cannot grant any decree declaring the entries in the Record of Rights erroneous. But the Civil Court has the jurisdiction and authority to decide the question of title over the suit property on the basis of title deed. The entries in the Record of Rights, is not a document of title. It is at best a document of possession though the Act provides that finally published Record of Rights draws a presumption as regards correctness of the record.
22. It is submitted by Mr. Saha that the Civil Court can grant declaration on the basis of title of a party to the suit.
23. Having heard the submission made by the learned Counsels for the appellant and the respondent, and on perusal of the impugned judgments passed by the learned Judge in trial court as well as the courts below held in favour of the plaintiff/respondent his title over the suit property on the basis of registered putta executed by defendant No.1 in favour of plaintiff and proforma defendant No.2.
24. Order VII Rule 7 of the Code of Civil Procedure reads thus:-
"R.7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
25. Order VII Rule 7 of the Code of Civil Procedure authorizes the appellant to claim a relief in the alternative on the facts stated in the plaint and it is open to him to pray even for inconsistent relief. But it must be shown by the plaintiff that each of such pleas is maintainable. In the instant case, I have gone through the plaint time and again. In paragraph 8 of the plaint, the plaintiff/respondent stated as
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to how the consideration money was paid to purchase the suit property in the name of defendant No.1. In paragraph 12 of the plaint the plaintiff stated that since the suit property stood in the name of the defendant No.1 and in order to avoid future complications the defendant No.1 settled 2/3rd share of the suit property in favour of plaintiff and proforma defendant No.2 at yearly settlement of Rs.9/- by executing a registered deed of settlement on 10th January, 1955. Thus I am in agreement with the learned Advocate for the respondent that the respondent claimed title in respect of 1/3rd share of the suit property on the basis of the said registered deed of settlement executed by the defendant No.1. 26. Now the issue that is left for consideration by this Court is as to whether finally published Record of Rights in respect of the suit property would disentitle the plaintiff to institute a suit for declaration of title. 27. In Ayubali Sardar and another vs. Derajuddin Mallick and others reported in 1975(2) CLJ 305 a division bench of this court held that notwithstanding an entry adverse to the plaintiff's claim, a suit for declaration of title based on an independent cause of action is maintainable in law and nothing prevents a correction of the erroneous entry in the relevant record-of-rights. Further, it was observed that a question or dispute, which did not at all fall for determination for the purpose of preparation or revision of the record-of-rights would not come within the purview of Section 57B of the said Act and, consequently, entertaining a civil suit for determination of such a dispute or question was not barred nor was it so intended. 28. In Jharna Ghosal vs. Satyendra Prosad Dhar reported in 1978 (1) CLJ 193 another division bench of this Court held that Section 57B of the said Act did not either expressly or by necessary implication exclude the jurisdiction of civil courts to decide questions of title. 29. In view of the above discussion, I do not find any substantial question of law involved in the instant appeal and this appeal is liable to be dismissed on contest, however without cost. 30. Accordingly the instant appeal is dismissed on contest, without cost. 31. The judgment and decree passed by the First Court of Appeal in Title Appeal No.121 of 1987 affirming the judgment and decree dated 6th May, 1987 and 16th May, 1987 passed by the learned Munsif, Ranaghat in Title Suit No.44 of 1987 is affirmed. 32. A copy of this judgment be sent to the learned court below forthwith along with the lower court records.