Ouseph Rapheal vs Margret

A.V. Ramakrishna Pillai, J.—The defendant, who suffered a decree of recovery of possession and injunction before the courts below, has come up with this appeal raising the following questions of law;

i. Whether the lower court is justified in giving retrospective application of Section 4 of the Benami Transactions (Prohibition) Act, 1998, ignoring Sub Section (3)?

ii. Whether the claim for adverse possession and limitation requires elaborate pleadings and evidences?

iii. Whether the right of tenancy will survive irrespective of subsequent transaction and deeds by the title holders?

The respondents filed a suit for recovery of possession and injunction. The respondents are the wife and children of late Rockey, who died in the year 1991. The appellant is the brother of Rockey, who was employed in Indian Air Force and demitted his office in 1978. Rockey married the 1st respondent on 22.01.1979. According to the respondents, Rockey acquired plaint item No. 1 as per Ext. B1 assignment deed of 1972 and plaint item No. 2 as per Ext. A2 assignment deed of 1975. The respondents allege that since Rockey was away in connection with his employment, the plaint items have been looked after by the appellant. The respondents have a further case that after the retirement of Rockey in the year 1978, he was staying with the appellant and family in plaint item No. 2; and thereafter, Rockey and the appellant were looking after the schedule properties. However, in the year 1985, the relationship between the appellant and Rockey fell out. As the property continued in the custody of the appellant, after the death of Rockey in 1991, the respondents wanted a recovery of the properties; and thus, they filed the suit.

The suit was resisted by the appellant. It was contended that the suit is bad for non-joinder of necessary parties as one Unnikrishnan, who is in possession of item No. 2, was not impleaded in the suit. It was averred that the respondents have no right or possession over the schedule properties. The appellant further contended that the building in item No. 1 was constructed by him in the year 1968 with the permission of the then owner and he was conducting a tea shop in the said building. Therefore, according to him, the building and the rest of item No. 1 are in the possession of the appellant and nobody has any right over the item. It was also averred that if the respondents had any right, the same has been lost due to uninterrupted possession of the of the appellant since 1968. Regarding item No. 2, the appellant contended that, that item was purchased by him using his own coins. He would also contend that few months prior to the death of Rockey, item No. 2 was given to Rockey on condition that Rockey would not make any claim over item No. 1. It is further contended that Rockey had transferred possession of item No. 2 to Unnikrishnan.

The trial court, after raising proper issues for trial, proceeded with the trial permitting both sides to adduce evidence. PW1 was examined on the side of the respondents and DWs 1 to 4 were examined on the side of the appellant. Exts. A1 and A2 were marked on the side of the respondents and Exts. B1 to B2(a) were marked on the side of the appellant. The trial court, after considering the evidence, decreed the suit holding that the respondents would be entitled to recover possession of the plaint schedule property with past mesne profits for a period of three years prior to the institution of the suit at the rate of 500/- per year and also future mesne profits at the above rate from the date of suit till realisation of actual possession from the defendant or till the realisation of actual possession from the appellant or till the expiration of three years from the date of decree, whichever is earlier. The appellant was also restrained from making any construction in the plaint schedule property or from committing any waste in the plaint schedule property.

The appellant took the matter in appeal before the lower appellate court, but without success. It is in this background, the appellant has come up before this Court.

Arguments have been heard.

One of the contentions raised by the appellant regarding item No. 2 was that the consideration of item No. 2 flowed from the appellant and the deceased Rockey was only a name lender. The appellant raised the question of law that the Benami Transactions (Prohibition) Act, 1988 has no application to the case as it has no retrospective application. This question was considered by the lower appellate court in para 9 of the impugned judgment. The lower court has rightly held that the said Act has no retrospective application. But, it was found by the appellate court that the suit for recovery of possession was filed by the respondents in the court below in the year, 1993; and therefore, the Act has application. This observation was made by the lower appellate court in the light of Section 4 of the Act, which reads as follows;

"No Suit, Claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property."

(emphasis applied).

The lower appellate court held that the said provision applies to the claim of the appellant.

This Court is of the view that the said question of law has been correctly answered by the lower appellate court. The argument of the appellant that Section 4 has no application since Sub Section (3) excluded the cases of trust from the purview of that provision, was also repelled by the lower appellate court for the reason that Section 82 of the Trust Act stands repealed by the Act as seen from Section 7. It was also observed that it is not the case of the appellant that Rockey stood in any fiduciary character vis-a-visa to him. Therefore, it was found that the contention of the appellant that Rockey was only a benamidar is not tenable. This Court is of the view that the said finding does not require any interference by this Court. On facts also, the courts below found that there is no convincing evidence to show that the consideration for purchase flowed from the appellant.

Regarding item No. 1, the argument of the appellant was that since he has been in uninterrupted possession and enjoyment of the said property from 1968 onwards, he has perfected title by adverse possession and limitation. The courts below were not inclined to accept the said argument for two reasons. It was found by the lower appellate court that there was a lack of proper plea regarding adverse possession and limitation. It was observed that the mere statement that the appellant had been in uninterrupted possession of item No. 1 from 1968 onwards, is insufficient to constitute the plea of adverse possession to extinguish the title of the respondents. The second reason was that there is no reliable evidence to show that the appellant was in possession of item No. 1 from 1968. Both the courts below, on appreciating the evidence on record, found that the contention of the appellant regarding uninterrupted possession since 1968 is untenable.

The contention regarding the non-joinder of necessary parties was also repelled on the ground that there is no convincing evidence regarding the same. The courts below, relying on the commission''s report, found that the portion of the kitchen and the latrine of the appellant is situated in item no. 2, which goes against the contention of the appellant that item No. 2 is in the possession of Unnikrishnan.

Another argument advanced was that the licence in respect of the property has become irrevocable by virtue of Section 60(b) of the Easements Act. Regarding this also, court below found that there is no specific plea that the licence had become irrevocable. The lower court also found that Ext. A1, which is the assignment deed and which was not put to challenge, would show that the said Rockey was authorized and empowered by the assignor to evict the appellant from the building situated at the south-western corner of item No. 1.

Therefore, on a consideration of the entire materials and evidence on record, this Court is of the view that the lower appellate court has not erred in answering any question of law, calling for an interference by this Court in second appeal.

Therefore, the second appeal fails; and accordingly, it is dismissed.