PREMSUKH Vs. HANUMANDAS

JUDGEMENT

(1.) HANUMANDAS-plaintiff - respondent No. 1 obtained a decree against the judgment-debtor Nathu-respondent No. 2 for Rs. 5588/- on 30-9-59 and in execution of that decree got the house in dispute attached and sold. Premsukh, a brother of Nathu, filed objections to the attachment on 18-7-1960 but the sale of the house, however, took place on 30-7-1960 and was knocked down to Pannalal for Rs. 2205/ -. Before the sale was confirmed the objection filed by Premsukh was allowed on 21-12-1961 and the property was ordered to be released from attachment. Consequently HANUMANDAS filed the present suit on 1-5-1962 in the Court of Civil Judge, Bikaner for declaration that the house in dispute belongs to the judgment-debtor Nathu and was attached from his possession, and, therefore, it may be held to be attachable and liable to be sold in execution of his decree. It may be stated that the case put forward by Premsukh in the objection filed under Order XXI, r. 58, Civil Procedure Code was that there was a decree of Bhabhuta against Dungar, Nathu and Roopa and it was in execution of that decree that the house in question was auctioned and purchased by Premsukh. The plaintiff Hanuman Das has stated in the plaint that the house in question was never purchased by Premsukh and in the alternative he pleaded that even if it be held that the house in question was purchased by Premsukh in execution of Bhoora's decree, it was only the construction standing on the land which had been purchased and not the land. It was also alleged in the alternative that Premsukh is a brother of Nathu and the property in question as a matter of fact had been purchased by Nathu himself and the name of Premsukh was mentioned as a purchaser only as Benamidar,

(2.) THE judgment-debtor Nathu did not file any written statement but Premsukh in his written statement contested that he was the real purchaser of the house in question and had thereby become its full owner. In substance he denied the plaintiff's claim on the ground that Nathu had no right, title or interest in the property in dispute, and thus contended that the plaintiff Hanumandas had no right to proceed against the house in question for realisation of his decretal amount.

(3.) IN Kailash Pati vs. Jagarnath (6) it was observed that there is no authority for holding that evidence to prove that a transaction was benami must necessarily be direct evidence. I may add that in a majority of cases the finding as to benami nature of the transaction has to be based on inference to be drawn from certain proved facts. Learned counsel for the appellant has failed to convince me that the finding of the learned District Judge in favour of the benami transaction is based on no evidence or is based on misreading of evidence. On the other hand I find that it is based on evidence, and consequently it cannot be interfered with by me in second appeal.