GIRDHARILAL Vs. KRISHAN DATT

JUDGEMENT

(1.) This is a defendants appeal from the judgment and decree of the learned District Judge, Kapurthala, dated 8th of May 1952 allowing the appeal and decreeing the suit of plaintiff Krishan Dutt which had been dismissed by the Subordinate Judge 1st class, Fatehgarh Sahib, by his judgment dated 8th August, 1951. The plaintiff and the defendant are real brothers, and their father admittedly died in 1928. The property in suit consists of 49 bighas and 6 biswas of land situated in village Nabipur Kalan; this property originally belonged to the erstwhile Kalsia State and was put to auction sometime in September 1931. Plaintiff Krishan Dutt gave a bid for this property in the joint names of himself and his brother Girdhari Lal for a sum of Rs. 4,200/- which was accepted. A sale certificate was consequently issues in October 1931, in favour of both the brothers, and on 8th of September 1932 mutation No. 249 was similarly attested in their favour. It appears that at the time of the mutation their mother alone was present, both the brothers being absent. It is also agreed that the defendant was born on 16th of July 1916, with the result that he was minor in September 1931 when the property was purchased. The present suit was instituted on 1st of July 1943 claiming declaration and possession with respect to the aforesaid land on the ground that it was the plaintiff who had paid the whole amount from his own pocket and secured the sale certificate as also possession of land a little later; the plaintiff being in service in those days, as an Overseer and the defendant who is his real brother, being a minor and reading in the school, his name was got entered along with that of the plaintiff in the auction papers as well as in the revenue records, merely by way of benami, the real and true owner being the plaintiff only. The defendant having, a short while before the suit, started asserting his own title to the property to the extent of one-half and having also expressed intention to transfer the property in favour of some other person, the plaintiff had no other course but to claim relief from the Courts. The defendant denied that he was a benamidar and asserted that he was a joint owner of the property possessing similar title as the plaintiff. It was also pleaded that the property had been purchased in the names of both of them with the joint Hindu family funds and not only with the plaintiff's money. On the pleadings the following three issues were framed:

(2.) The trial Court decided issue No. 1 in favour of the plaintiff holding the suit to be within limitation. Under issue No. 2 the trial Court came to the conclusion that the property had been purchased by the plaintiff with his own funds and not out of the joint family funds, but it also concluded on the strength of various documents and the conduct of the parties that the plaintiff had purchased the property in dispute for the benefit of himself and of the defendant and that by his subsequent conduct he had thrown the property in the common 'hotchpotch' and renounced all intentions of claiming it exclusively for his own self, with the result that the defendant could not be called a benamidar and the transaction in dispute a benami transaction. With these findings as already observed, the plaintiff's suit was dismissed.

(3.) On appeal, the learned District Judge, in a very exhaustive judgment agreed with the finding of the trial Court that the suit was within time; he also agreed that the property had been purchased by the plaintiff with his own funds and not with those of the joint Hindu family. He expressly observed that the father of the parties had left no property from which they could derive any income which could be considered to be the nucleus for the purchase or extension of the family property. the learned Judge was also influenced in coming to this decision by the fact that the plaintiff had been an overseer in the Canal Department and therefore had certain additional facilities which were normally speaking, not available to the employees of other department. On this finding, and also on a consideration of the other circumstances of the case, the lower appellate Court came to a positive finding that the defendant was a benamidar. While dealing with the question of the property having been put into the 'common stock', the learned Judge was considerably influenced by the fact that after the plaint had been amended by converting the relief for possession of the whole of the property into one for possession of half the land in dispute the defendant in his written statement included the additional ground of the property having been put into the 'common stock' which had not been his case in the first written statement. The learned Judge after referring to O. 6, r. 17,. C.P.C., felt that this additional plea was not only an afterthought but was unauthorised, having been made without the permission of the Court, and in this view he actually thought that it was not open to the defendant to urge this plea and therefore he considered it not lawful to consider this defence. To put in the words of the learned District Judge the variation in the written statement or the amendment in the written statement should be confined only to the amendment of the plaint and that if the defendant wishes to amend his written statement by adding an additional defence he must seek permission of the Court under O. 6, r. 17, C.P.C. In spite of this view, however, the learned District Judge dealt with the defence that the property in dispute had been raised by the defendant. Dealing with this part of the case the Court below disagreed with the finding of the trial Judge and concluded that the defendant had failed to discharge the burden of proof that the property had been purchased for his benefit or that the plaintiff had voluntarily thrown the property in question in the 'common stock'.