ASHOK KUMAR SUBBA Vs. BIMAL KUMAR JAIN

JUDGEMENT

(1.) In this Regular Second Appeal, the following substantial questions of law were formulated for determination;

(2.) At the outset, when the matter was taken up for hearing by this Court, Learned Counsel for all the parties in mutual agreement submitted that the only substantial question that was required for determination herein was "Question No.B" supra. In light of the said submissions, the discussions and decision of this Court shall hereafter be confined to the substantial question of law framed in "B" reflected supra.

(3.) (i) Learned Counsel Mr. Sajal Sharma opening his arguments for the Appellant submitted that the Appellant on being impleaded as a party to the Title Suit, as Defendant No.2, on his prayer, in his Written Statement and Counter-Claim averred that he was the absolute owner of the land which he had purchased and constructed a five and a half storeyed building which houses the suit property as well. That, the Defendant No.1-the Respondent No.2 (herein) had no independent income as established by the document, Annexure D2-1, her Affidavit, disclosing that she was a housewife and was thus not in a position to either purchase land or construct a building thereon. That, the Respondent No.2 failed to file any response to the Appellant's Counter-Claim and to deny his averments, she merely filed an Evidence-on-Affidavit in an attempt to establish that she was the owner of the land and building in which the suit property was housed. That, her lack of response to the Counter-Claim by way of written averments tantamounts to admission of the stand of the Appellant. Consequently, her Evidence-on-Affidavit in which she asserts that she is the absolute and rightful owner of the suit property is beyond the ambit of consideration by this Court. That apart, Learned Counsel sought to convince this Court that the Appellant for his part was a businessman with income accruing from his lottery business and other business sources. The lottery business admittedly, was registered in the joint names of the Appellant and the Respondent No.2. Counsel for the Appellant admitted that there is no paper trail of the income of the Appellant from any source or investments made by him to establish his financial ability to purchase the land and building claimed by him as benami property however, that in the absence of written averments by Respondent No.2 contradicting his stand, reliefs as sought by him in the Counter- Claim ought to be granted to him.