BISHUNDEO DUBEY Vs. KAPILDEO DUBEY

JUDGEMENT

(1.) THE Plaintiff -appellant -appellant had filed this Second Appeal against the Judgment and Decree dated 11.12.1992 passed by the learned District Judge, Gopalganj in Title Appeal No.7 of 1989 whereby the learned lower appellate Court dismissed the appeal and confirmed the Judgment and Decree of the lower appellate Court dated 21.12.1988 passed by the learned Addl. Munsif, IIIrd Gopalganj in title suit No.50 of 1982.

(2.) THE plaintiff appellant had filed this aforesaid suit praying for declaration that the defendant No.2 is Benamidar of the plaintiff and defendant No.1. The defendant No.2 has no right to execute the sale deed of the disputed plot dated 17.04.1974 in favour of defendant No.1 as such the sale deed is null and void. The plaintiff claimed the aforesaid relief alleging that the property originally belonged to Hathuwa Raj. He desired to sale the suit land, therefore, the plaintiff and defendant No.1 agreed to purchase the suit property in the name of their maternal uncle, defendant No.2, and by registered sale deed dated 18.04.1960, they purchased the land for Rs.191/ -. They had purchased in the name of defendant No.2 with a view to save the land from the other Bhawalidar. The plaintiff was the karta, as such the property was purchased for the benefit of the family. There was partition between the plaintiff and defendant No.1 in the year 1970 and the suit property was divided half and half. However, subsequently the defendant No.2, the maternal uncle sold the suit property in favour of the defendant No.1 by registered sale deed dated 18.4.1974 and on the basis of the said sale deed, the defendant No.1 is trying to dispossess the plaintiff.

(3.) THE trial Court dismissed the plaintiff's suit recording a finding that the plaintiffs failed to prove that the defendant No.2 is the benamidar and that the suit is barred by law of limitation. Accordingly, the plaintiff's suit was dismissed. On appeal, the lower appellate Court held that the purchase of the suit land from Hathuwa Raj through the sale deed ext.3 was a banami transaction and the plaintiff and defendant No.1 are the real purchasers and defendant No.2 was only benamidar in the sale deed ext.3 vide paragraph 15. Since the suit land was acquired by plaintiff and defendant No.1 from Hathuwa Raj, the defendant No.2 had got no right to transfer the same to the defendant No.1 by executing the sale deed, ext. B, therefore, the sale deed ext. 'B' is illegal and void document vide paragraph 17. The suit is not barred by law of limitation. The lower appellate Court further held that the provision under Section 4 of the Act applies to all proceedings pending before the Courts of law on the date of commencement of the Act even if they are at the second appellate stage as has bee held by the Hon'ble Supreme Court in the case of Mithilesh Kumari Vs. Prem Bihari Khadeo A.I.R. 1989 SC 1247, therefore, the plaintiff is not entitled to any relief, accordingly the appeal was dismissed.