Partly allowed

Yashpal Singh Dewangan v. Smt. Godavri Dewangan

Chhattisgarh HC6 Nov 2024FA/72/2023

Case brief

AI extract

What is this about?

First appeal against dismissal of a son's suit claiming declaration of title over a house allegedly purchased and built from his remittances but registered in his mother's name. Holding that the trial court decided the suit under the Benami Act without framing any issue on maintainability, the High Court set aside the decree and remanded for fresh decision.

What did the court decide?

Impugned judgment and decree set aside; suit remanded to trial court to frame Benami Act maintainability issue and decide afresh; parties allowed to amend pleadings and adduce evidence.

Yashpal Singh Dewangan Vs Smt. Godavri Dewangan — Property and Title | Chhattisgarh HC (2024)

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2024:CGHC:43282-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment reserved on : 26-09-2024

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Judgment delivered on : 07-11-2024

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FA No. 72 of 2023

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Yashpal Singh Dewangan S/o Girdhar Lal Dewangan, presently Aged About 41 Years R/o Ward No. 19, New Chandra Colony, Tahsil And District - Rajnandgaon Chhattisgarh. Through Its Power Of Attorney Holder Mishilal Dewangan S/o Ramkisun Dewangan, Presently Aged About 61 Years, R/o 147/F, Risali Sector, Bhilai, Tahsil And DistrictDurg Chhattisgarh.

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... Appellant/plaintiff

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versus

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1 - Smt. Godavri Dewangan W/o Girdhar Lal Dewangan Aged About 58 Years R/o Ward No 19, New Chandra Colony, Tahsil And District Rajnandgaon Chhattisgarh

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2 - Girdhar Dewangan S/o Late Mohanlal Dewangan, R/o Ward No. 19, New Chandra Colony, Tahsil And District - Rajnandgaon Chhattisgarh

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... Respondents/Defendants

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For Appellant : Mr. Anand Shukla, Advocate. For Respondents : Ms. Priyanka Rai, Advocate on behalf of Mr. Shashank Thakur, Advocate.

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Hon'ble Smt. Justice Rajani Dubey, J Hon'ble Shri Justice Sanjay Kumar Jaiswal, J

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C A V Judgment

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Per Rajani Dubey, J

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Challenge in this appeal is to the legality and validity of the judgment and decree dated 8.2.2023 passed by the First Additional District Judge, Rajnandgaon in Civil Suit No.16-A/2018 whereby the suit filed by the appellant/plaintiff for declaration of title and permanent injunction has been dismissed.

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The appellant/plaintiff filed a suit for declaration of title and permanent injunction in respect of the house situated at Chandra Grih Nirman Sahkari Sanstha Maryadit, Rajnandgaon, Ward No.17, Plot No.19, area 195.167 square meter (hereinafter shall be referred to as "the suit house") with the averments that he is a physiotherapist by profession in London where he is living with his wife and child. He out of his income transferred Rs.50 lacs to the account of his father/defendant No.2 and from the said amount, defendant No.2 purchased land and got a house constructed thereon i.e. the suit house where only the defendants are residing. Whenever the plaintiff returns from London, he would live in the suit house with his family. All the

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furniture, utensils and other articles received by him in his marriage are kept in the suit house. However, during quarrel between the plaintiff and defendant No.2, the plaintiff told the defendants that they have purchased the land and got the suit house constructed thereon from his own income, therefore, they have no right to live in the suit house. Thereupon, his father/defendant No.2 told that the he purchased the land in the name of defendant No.1 (mother of the plaintiff) and the suit house is in her name and she would not leave this house till her lifetime. Subsequently, when the plaintiff on 29.10.2018 enquired from Chandra Griha Nirman Sahkari Sanstha Maryadit, Rajnandgaon about the sale deed in respect of the said land, he came to know that it is purchased in the name of defendant No.1 on 22.12.2010. Since the defendants in collusion with brother of the plaintiff have committed cheating and fraud with the plaintiff, the land on which suit house is constructed is purchased from the income of the plaintiff and the suit house was also got constructed from his own income, he is entitled for declaration of title in respect of the suit house and permanent injunction against the defendants.

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Defendants No. 1 & 2 filed their separate written statements where they denied all the averments made in the plaint and contended that the plaintiff has been living in London since 2008 and after his marriage on 12.12.2013 he is living there with is wife who is also working there. The brother of plaintiff namely Amit is also a physiotherapist and runs a physiotherapy clinic in Rajandgaon.

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Defendant No.1 had been in government service since 1982 and retired in 2019. He also owns 7 acres of ancestral agricultural land at Village-Bhedikala, Distt. Rajnandgaon and a house, from which he earns Rs.1 lac per annum. This apart, he also has a house at Chikhli, Distt. Rajnandgaon. The land on which the suit house is constructed was purchased by defendant No.1 from her stridhan and with the help of her maternal relatives on 22.12.2010 from Chandra Griha Nirmal Sahkari Sanstha Maryadit, Rajnandgaon for a consideration of Rs.4.62 lacs and the suit house was also constructed thereon from her earnings. The defendants and their younger son reside in the suit house. As such, the plaintiff has got no right or title over the suit house and the suit is liable to be dismissed with compensation of Rs.50,000/each in favour of the defendants.

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Learned trial Court based on the pleadings of the respective parties and the documents filed by them, framed five issues and by the impugned judgment and decree dated 8.2.2023 dismissed the suit. Hence this appeal.

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Learned counsel for the appellant would submit that the learned trial Court has committed an illegality by not framing any issue regarding maintainability of the suit as per Section 4 of Benami Transaction (Prohibition) Act, 1988. It has failed to appreciate that determination of the issue without any pleading or evidence is impermissible in law since the learned trial Court has not framed the

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preliminary issue regarding maintainability of the suit, therefore, both the parties have not adduced any evidence in this regard. Order 14 Rule 5 of CPC gives power to the Court at any time before passing a decree to amend the issue or frame additional issue on such terms as it thinks fit and all such amendments or additional issues as may be necessary for determining the matter in controversy between the parties shall be so made or framed. He submitted that the learned trial Court ought to have appreciated the fact that framing of issue is a vital stage of the trial and the object of framing of issue is to focus upon the questions on which evidence has to be led and to indicate the party on whom the burden of proof lies. Non-framing of issue regarding maintainability is a gross illegality and the finding recorded by the learned trial Court regarding maintainability is perverse and as such liable to be set aside.

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Learned counsel for the appellant would further argue that learned trial Court failed to appreciate the evidence of PW-2 Mishilal Dewangan who stated that the plaintiff would send money from London to defendant No.2 and from that money, defendant No.2 purchased land in name of defendant No.1 and also constructed the suit house. It also failed to appreciate Ex.D/2 i.e. the statement of account which clearly shows that on 16.9.2010, 9.11.2010, 12.11.2010 and 8.12.2010 and thereafter on several occasions the plaintiff transferred amount of Rs.1 lac, 3.20 lacs, 2.30 lacs and 2 lacs to the account of defendant

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No.2. Despite there being specific oral and documentary evidence, the learned trial Court dismissed the suit. Therefore, the impugned judgment and decree being illegal, erroneous and contrary to law are liable to be set aside.

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Reliance has been placed on the judgment dated 3.7.2012 of this Court in FA No.89/2005 in the matter of Bhagirathi Dewangan Vs. Jhaduram and others ; the judgment of the Andhra Pradesh High Court in the case of M/s Unitech Industrial Corporation and another Vs. M/s Arvind Engineering Co., AIR 2001 Andhra Pradesh 177 ; and the judgment dated 3.9.2024 of this Court in FA No.155/2019 in the matter of Manish Bajpai Vs. Alkesh Lakde .

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On the other hand, learned counsel for the respondents would argue that the plaintiff had filed an application under Order 14 Rule 5 of CPC and the learned trial Court rightly rejected the said application on the ground that the issue regarding title and ownership of the plaintiff is already framed as Issue No.1, therefore, there is no need to frame additional issue. The plaintiff did not challenge the said order before any competent authority and as such, it has attained finality. The plaintiff was unsuccessful in proving his title and ownership over the suit property and further failed to prove that the suit house was constructed from his money only whereas the respondents have sufficiently proved their economic status and financial capacity for

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purchasing the suit land which was supported by other witnesses as well as the plaintiff in his cross-examination.

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She would submit that the plaintiff has contended that the suit property is Benami property and defendant No.2 was only a trustee of the same but has failed to prove so. There has been no trust deed authored by the plaintiff in favour of defendant No.2, hence it cannot be accepted that the said property was a Benami property and defendant No.2 was a Benamidar. The suit property is registered in the name of defendant No.1 and all the formalities regarding sanctioning of map and obtaining permission for construction of house etc. were done by defendant No.2 and further it was also accepted by the plaintiff that he was not involved in any of the procedure in getting the house constructed. Some of the money transaction by the plaintiff was in the joint account of the defendant and the plaintiff from which the plaintiff used to withdraw money for his personal use during his visits in India. Moreover, any transaction after 2013, if any, cannot be held to be for use of construction of suit house as it was completed in the year 2013 itself. Learned trial Court after framing necessary issues and considering the evidence led thereon rightly dismissed the suit by the impugned judgment and decree which call for no interference by this Court.

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Reliance has been placed on the decision of High Court of Calcutta in FMA No.1347/2009 in the matter of Shyamapaba Bhowmick and another Vs. Bhudeb Kumar Middya and another .

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Heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of learned trial Court that it is undisputed that the plaintiff is son of defendants No.1 & 2. Learned trial Court framed following issues on the basis of pleadings of both the parties and dismissed the suit on the ground that under Section 4 of Benami Transaction (Prohibition) Act, the suit is not maintainable:

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"01. D;k oknh panzkx`g fuekZ.k lgdkjh laLFkk e;kZfnr jktukanxkao okMZ uacj&17 IykV uacj 19 dk ,dek= Lokeh gS?

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D;k oknh ds LokfeRp ,oa vkf/kiR; ds oknxzLr edku ij izfroknh }kjk dksbZ O;o/kku ;k gLr{ksi fd;k tk jgk gS A ;fn gka] rks mldk izHkko?

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D;k] oknh dk okn i{kdkjksa ds dqla;kstu ;k vla;kstu ds dkj.k vizpyu'khy gS?

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D;k] oknh us okn dk mfpr ewY;kadu djrs gq, mfpr U;k;ky; 'kqYd pLik fd;k gS?

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lgk;rk ,oa okn O;;?"

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Record of the trial Court also shows that the plaintiff filed an application under Order 7 Rule 14 of CPC for taking on record certain additional documents and filed another application under Order 14 Rule 5 of CPC for framing of additional issue in relation to Benami transaction but the learned trial Court vide order dated 6.5.2022 though allowed the application under Order 7 Rule 14 of CPC, however, dismissed the application under Order 14 Rule 5 on the ground that

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Issue No.1 framed on 19.8.2019 is related to ownership, so there is no need to frame any additional issue as sought for by the plaintiff.

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This Court in the matter of Bhagirathi Devangan (supra) held in para 18 of its judgment as under:

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"(18) Looking to the nature of controversy, the manner in which the suit was decided and the fact that no issues were framed on the question of readiness and willingness, breaches committed by the parties, grant of alternative relief etc,. a limited remand on a particular issue would cause further prejudice to the rights of the parties and therefore, this is a fit case where the wholesome remand alone is called for to direct the rights of the parties."

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Further, this Court in the matter of Manish Bajpai (supra) observed in paras 15 & 20 of its judgment as under:

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"15. The main objection of the appellant/defendant is that no specific issue with regard to readiness and willingness on the part of the plaintiff was framed by the learned trial Court and the plaintiff has failed to prove this fact that on what date he arranged the balance sale consideration.

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It is apparent that the agreement to sell was executed on 22.12.2007 and the date of execution of sale deed was 15 days from the date of arrangement of balance sale consideration and before the registry, revenue papers like B-1, Khasra, Panch Shala, 22 point form and diversion paper etc were to be made available but it is clear from the notice of respondent/plaintiff that he sent first notice to the

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defendant on 25.08.2010 and according to the plaintiff himself, this notice was not received by the defendant, thereafter he published a news article in local news paper through his counsel on 17.09.2010 (Ex.P/4) and then sent a notice dated 20.01.2011 (Ex.P/5), which was also not served to the defendant vide Ex.P/9. Thus, in view of the aforesaid development and looking to the facts and circumstances of the case, the learned trial Court ought to have framed issue with regard to readiness and willingness on the part of the plaintiff but the the learned trial Court without framing such issue decided the suit in favour of plaintiff. According to the guidelines of Hon'ble Supreme Court, the objection and purpose of framing issue is so that the parties to the suit can lead the specific evidence on the same but the learned trial Court without framing specific issue granted decree of specific performance in favour of plaintiff, which is not sustainable in law. Thus, the findings recorded by the learned trial Court, in the opinion of this Court, are not according to the provisions of Specific Performance and not according to the facts and circumstances of the case."

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The High Court of Andhra Pradesh in the matter of M/s Unitech Industrial Corporation (supra) also held in para 19 of its judgment as under:

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"19. ...Without framing issue with regard to the maintainability of the suit and the authority of the deponent to sign the plaint and verification, trial Court should have not given a finding that deponent has got letter of authority to sign the plaint."

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In the present case also, it is clear that the learned trial Court dismissed the application of the plaintiff for framing of additional issue and decided the whole case according to Benami Transaction (Prohibition) Act. It is clear that no issue as to the maintainability of the suit as per provisions of Benami Transaction (Prohibition) Act was framed by the trial Court. In light of aforesaid decisions, present is a fit case where wholesome remand is called for to direct the rights of the parties.

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In the result, the appeal is allowed in part. The impugned judgment and decree are hereby set aside. The case is remanded to the learned trial Court with a direction to frame issue regarding maintainability of the suit in light provisions of Benami Transaction (Prohibition) Act along with other issues and then decide the suit afresh in accordance with law. Parties shall be at liberty to amend their pleadings and adduce additional evidence if so desire. Parties to appear before the learned trial Court on 16th December, 2024.

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It is made clear that this Court has observed nothing on merits of the case and the learned trial Court to decide the suit on its own merits in accordance with law.

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Sd/	Sd/
(Rajani Dubey)	(Sanjay Kumar Jaiswal)
Judge	Judge

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Digitally MOHD signed by AKHTAR MOHD KHAN AKHTAR KHAN Khan

Yashpal Singh Dewangan v. Smt. Godavri Dewangan

Case brief

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What did the court decide?

Yashpal Singh Dewangan v. Smt. Godavri Dewangan

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