CHHAJJU Vs. VED PARKASH

JUDGEMENT

(1.) This appeal has been filed by defendant No. 1 against the judgment of the Additional District Judge, Sonepat, dated January 28, 1974.

(2.) Briefly, the facts are that Sant Lal, defendant No. 3, was the owner of 33 Bighas and 2 Biswas of land situated in village Kalupur, tehsil and district Sonepat. He sold it to Chhaju Ram defendant No. 1 by means of a registered sale deed, dated June 29, 1968, registered on July 5, 1968, for a consideration of Rs. 15,000/-. Ved Parkash plaintiff instituted a suit for possession by pre-emption of the land in suit on the ground that he was the son of the vendor. He has also pleaded that Sant Lal, his father, had executed a fictitious lease deed in favour of the Hira Lal, defendant No. 2, and the same was not binding upon him. He consequently claimed actual possession of the suit land on payment of Rs. 15,000/-. Both Chhaju Ram, defendant No. 1 and Hira Lal, defendant No. 2, have contested the suit. They have inter alia stated that the plaintiff has no superior right of pre-emption. They further pleaded that in fact Chhaju Ram, defendant No. 1, was the real lessee by whom the consideration for lease has been paid and Hira Lal was merely a Benamidar. Chhaju Ram vendee has also stated that he being a tenant on the land in dispute at the time of sale, the same was exempt from pre-emption under Section 17(1) of the Punjab Security of Land Tenures Act, 1953. Several other pleas were taken by the defendants but they are not relevant for the decision of the present appeal. The trial Court held that the plaintiff was the son of the vendor and that Chhaju Ram vendee occupied the land in dispute as a tenant under the vendor at the time of sale and, as such, the suit for possession by pre-emption was not maintainable. Consequently, it dismissed the suit. The plaintiff went up in appeal before the Additional District Judge, Sonepat, who held that Chhaju Ram was not in possession of the property in dispute as tenant and that the transfer of land was not genuine. Consequently, he accepted the appeal and decreed the suit of the plaintiff. Chhaju Ram, defendant No. 1, has come up in appeal against the judgment and decree of the First Appellate Court to this Court.

(3.) The only question to be determined is as to whether Chhaju Ram vendee occupied the land in suit as a tenant under the vendor at the time of sale and, if so, whether the sale was not pre-emptible. The version of the plaintiff is that the lease deed executed by Sant Lal in favour of Hira Lal, son of Chhaju Ram Brahmin, was fictitious. On the other hand, Chhaju Ram, defendant No. 2, stated that the lease was a genuine transaction, that Hira Lal was a Benamidar and that he was the real lessee of the property in dispute. In order to substantiate the allegation, the defendants have produced Prem Chand, Petition Writer, who proved the lease deed, dated June 21, 1968, registered on June 24, 1968. Exhibit D. 1, by which the land in dispute was given on lease to Hira Lal for a period of 30 years for a consideration of Rs. 15,000/-. Sant Lal vendor admitted the execution of the lease deed in favour of Hira Lal. He, however, stated that it was a fictitious document and was not to be acted upon. There is ample evidence on the record to prove that the document was not a fictitious one but was genuine. After the execution of the lease deed, an amount of Rs. 15,000/- was paid to Sant Lal vide receipt, dated June 28, 1968 Exhibit D. 2. D.W. 1, Mr. Charanjit Lal, Advocate, D.W. 4 Prem Chand and D.W. 10 Ram Chander are the attesting witnesses of the aforesaid receipt. All of them have stated that an amount of Rs. 15,000/- was paid in their presence by Chhaju Ram to Sant Lal. The statements of the witnesses have been believed by the trial Court as well as by the First Appellate Court. There is no ground for me to disbelieve their testimony. The recital regarding leasing the property has also been incorporated in the sale deed by Sant Lal, vendor. There is also evidence to show that the possession of the land in dispute was transferred by Sant Lal to Chhaju Ram on June 28, 1968, in pursuance of the lease deed executed by him. D.W. 7 Hira Lal stated that Chhaju Ram took possession of the land in dispute from Sant Lal in his presence. Chhaju Ram has supported Hira Lal. There is also statement of D.W. 12 Roop Chand that he ploughed the land at the instance of Chhaju Ram. His statement is supported by D.W. 13 Umrao Singh. In the sale deed, it is mentioned that the possession of the land was with the lessee. The citation shows that Sant Lal was not in possession of the property at the time when he sold it. All the aforesaid facts go to prove that in fact the possession of the land had been transferred by the vendor to Chhaju Ram as lessee. The learned First Appellate Court while dealing with the matter misread the evidence and assumed that Hira Lal, the alleged lessee, was the son of Chhaju Ram appellant. In fact, Hira Lal, is a Brahmin by caste and Chhaju Ram is a Jain. Therefore, they cannot be related to each other as son and father. From the aforesaid facts, it can safely be held that the consideration regarding lease proceeded from Chhaju Ram and that he was put in possession of the land in dispute as a lessee. It is an established principle of law that the real owner has to prove that the transaction is a Benami. It is also equally on established principle that if the real owner shows that the consideration has passed from him, the burden of proof shifts on to the side to show that he was not a Benamidar but a real owner. In the present case, as has already been held, the consideration for lease proceeded from Chhaju Ram. Hira Lal has admitted that he was a Benamidar and Chhaju Ram was a real owner. The learned counsel for respondent No. 2 has urged that where the purpose in view could be served only by a genuine transfer and not by a Benami transaction, an interference should be drawn that the transaction was genuine. In support of his contention, he has placed reliance on Chittaluri Sitamma and another V. Saphar Sitapatirao and others, 1938 AIR(Mad) 8 and Ratanchand Fakirchand V.Deochand Dahyabhai, 1946 AIR(Bom) 157 wherein it was observed that where the motive alleged for Benami transaction itself suggests that the purpose in view could be served only by a genuine purchase and not by a mere Benami transaction, the more reasonable inference is that the purchase was intended to be operative as a genuine purchase and not a Benami transaction. The facts in the aforesaid case are distinguishable and the observations made in them are of no help to the learned counsel for the respondent. In the present case, neither any motive has been alleged nor proved.