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PETITIONER: RAJAPPA HANAMANTHA RANOJI

       Vs.

RESPONDENT: SRI MAHADEV CHANNABASAPPA & ORS.

DATE OF JUDGMENT:       11/05/2000

BENCH: Y.K.Sabharwal, S.R.Babu

JUDGMENT:

     Y.K.SABHARWAL J.

     The  appellant  and  respondent   no.4  are  brothers. Respondent 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. The  case  set  up  by respondent  no.4  was  not  believed. Respondent  no.  4 also failed in appeal and further in  the revision  petition  preferred by him before the High  Court. Thus  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.

     In 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  interest. Further  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

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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.

     In  the 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. It  was  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. The  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.

     The  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.

     In  the  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) Act, 1972?

     2.   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 Kumari   Vs.   Prem  Behari  Khare,   [(1989)  2   SCC   95] 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

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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.

     The  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. This  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.

     2)  The  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.

     3)  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.

     5) Plaintiff has failed to prove that rent received by defendants 2 and 3 from fourth defendant was by way interest to the loan advanced.

     6)  Plaintiff  has failed to prove the  possession  of suit schedule property."

     In  R.Rajagopal  Reddy  (dead)  by  Lrs.&  Ors.    Vs. 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.

     The  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

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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.

     Having  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. Clearly, the decree of the First Appellate Court is based on no evidence and is perverse.

     The 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. The  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.

     It  is  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

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possession  because of the filing of the present suit by the brother  of the person who had suffered the eviction  order. Under  these circumstances, we quantify the costs payable by the appellant to respondent no.1 at Rs.25,000/-.