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Sham Lal Rai Chowdhury and ors. Vs. Radha Charan Rai Chowdhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in81Ind.Cas.774
AppellantSham Lal Rai Chowdhury and ors.
RespondentRadha Charan Rai Chowdhury and ors.
Excerpt:
benami transaction - colourable transaction--burden of proof - .....we think, are not sufficiently clear enough for us to act upon, seeing that this is a judgment of reversal. the subordinate judge must on the evidence on the record find clearly and definitely whether defendant no. 6 was benamidar for defendant no. 5, whether the plaintiff's purchase from defendant no. 5 gave him a good title or not; whether the auction sale and the preceding transactions were colourable or not. the onus is on the plaintiff in the first instance to show that the bond, suit and auction purchase by ganga charan wereifor the benefit of rasik. if this be established, then the defendant must prove that all these transactions were merely colourable and, therefore, rasik derived no title thereunder. in deciding the suit the subordinate judge will also consider the fact.....
Judgment:

1. The suit giving rise to this appeal was brought by the plaintiff for possession of certain lands and for mesne profits. Admittedly, the property belonged originally to one Raj Kumnr. Plaintiff states that defendant No. 5 Rasik had advanced some money to Raj Kumar in the benami of his brother Ganga Charan, defendant No. 6, and a decree was obtained for the debt in the name of defendant No. 6 in execution of which, the property was sold and purchased by defendant No. 5 in the name of defendant No. 6, the ostensible decree-holder, on 18th March 1903 and symbolical possession obtained on the 28th October 1903. Plaintiff purchased it from defendant No. 5 by a kabala in the benami of defendant No. 4 on 5th October 1910 and he seeks possession on the basis of this title. Plaintiff, however, states in his plaint that the father of defendant No. 1 had in execution of his own decree against Raj Kumar purchased the property on 24th October 1903 and was in actual possession and that defendant No. 5, plaintiff's vendor, was not in possession. The Court of Appeal below has dismissed the claim for khas possession against: defendants Nos. 2 and 3 but has decreed the suit against defendant No.l, reversing the decision of the Trial Court. It is not necessary to state the defence of defendant No. 1 in detail, but he denied the right of the plaintiff and his vendor and impugned the auction-sale and the transactions leading to it on which the plaintiff claims title, as paper transactions and collusive. The Trial Court dismissed the suit giving its reasons in a full judgment. On appeal by the plaintiff the learned Subordinate Judge begins by saying, 'The only point for determination is: First, whether the auction-purchaser under which the plaintiff claims was a mere colourable transaction made with the intention of defrauding creditors.' Then he goes on to say, 'I do not think that the learned Munsif rightly placed the onus of proof ' and says in more than one place in his judgment that the defendant has failed to make out a prima facie case. It is conceded that the onus of proving that the auction purchase was a colourable transaction was on the defendant but it is contended by the appellant, and we think rightly, that the Appellate Court started with the mistaken idea that the Munsif had placed the onus on the plaintiff, whereas he had in fact decided the case upon the evidence of both parties and upon the admitted fact of long possession by the defendant as well as on other circumstances. It is also contended, and we think rightly, that the onus was in the first instance on the plaintiff as he starts his case on the allegation that a series of transactions was benami. It seems to us that the Subordinate Judge has not come to a clear finding on all the facts necessary for the reversal of the decision of the Munsif. It is endeavoured to support the judgment of the Subordinate Judge by reference to several passages in his judgment but these, we think, are not sufficiently clear enough for us to act upon, seeing that this is a judgment of reversal. The Subordinate Judge must on the evidence on the record find clearly and definitely whether defendant No. 6 was benamidar for defendant No. 5, whether the plaintiff's purchase from defendant No. 5 gave him a good title or not; whether the auction sale and the preceding transactions were colourable or not. The onus is on the plaintiff in the first instance to show that the bond, suit and auction purchase by Ganga Charan wereifor the benefit of Rasik. If this be established, then the defendant must prove that all these transactions were merely colourable and, therefore, Rasik derived no title thereunder. In deciding the suit the Subordinate Judge will also consider the fact that the defendant has been in possession from October 1903 and that the plaintiff has sued him for rent as superior landlord.

2. We, therefore, set aside the decision of the Subordinate Judge and send back the case for re-hearing of the appeal on the evidence on the record with reference to the above direction.

3. The costs of the appeal will abide the result of the re-hearing now directed.


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