IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.363 of 2000 Raj Kumar Sant Balabhacharya Versus Sawo Devi(since deceased), Laloo Yadav & Ors For the appellant: M/S Devendra Kumar Sinha,Sr.Adv. & Mr. Sudish Kumar. For the respondents: M/S Vishnudeo Narayan,Sr.Adv, Satya Ranjan Sinha & Mrs. Seema Kumari ---------------------------------- 19 19-9-2011 Heard the learned counsel appearing on behalf of the appellant and the learned counsel appearing on behalf of the respondents. This appeal is directed against the judgment and decree dated 18-8-2000 passed in Title Appeal No.111 of 1989 by 1st Additional District Judge, Nalanda, reversing the judgment and decree dated 10-8-1989 passed by Munsif, Biharsharif, Nalanda, being Eviction Suit No. 21 of 1988. There is no dispute that the suit property originally belonged to Jamuna Sao, who had sold the same by registered sale deed dated 31-3-1072 to Janki Devi. However, the original plaintiff claimed title over the suit property on the basis of her purchase from the heirs of Janki Devi after her death by registered sale deed dated 30th March, 1988. This claim of the original plaintiff had been resisted by the original defendant Ram Patiya Devi on the ground that she was the real owner of the suit property, as she had purchased the suit property in the Benami 2 name of Janki Devi. The defendant had also claimed to have perfected her title by remaining in adverse possession over the suit property for the statutory period. Initially, the suit was filed as eviction suit claiming eviction of the original defendant as well as the arrears of rent. However, subsequently the plaint was amended and the reliefs for declaration of title over the suit property and recovery of possession have been incorporated in the plaint. In view of the admitted position that the suit property stood in the name of Janki Devi and from whose heirs the original plaintiff had claimed her title by purchase, the crucial question to be determined before the courts below was the plea of Benami purchase as asserted by the original defendant and further the plea of perfecting her title by adverse possession by the original defendant. On the first issue regarding the defence of Benami, both the courts have correctly come to the conclusion that the said defence was barred by the provision of section 4(2) of the Benami Transactions (Prohibition)Act, 1988,and decided that issue against the defendant. However, the trial court decided the issue of adverse possession in favour of the defendant and accordingly dismissed the suit. In appeal the appellate court reconsidered the evidence, 3 pleadings and submissions of the parties and has concurred with the findings of the trial court on the issue of defence of Benami. However, the finding on the issue of adverse possession was not approved by the appellate court which held that the defendant could not be permitted to claim her title as well as adverse possession in the same breath and consequently decided the issue of adverse possession against the defendant holding that the ingredients required for accepting the plea of adverse possession could not be established. The learned counsel appearing on behalf of the appellant has submitted that the appellate court was mandatorily required to consider the reasons assigned by the trial court before reversing its finding and the judgment of the appellate court is vitiated for non-consideration of reasonings. It has further been submitted that the appellate court like the trial court should have considered each and every issue again on the basis of evidence available on the record and come to its own finding. From the perusal of the judgment of the appellate court it appears that it has considered the pleadings, submissions and evidence as led by the parties and it has also considered the different issues raised by the trial court and has also taken notice of the findings given by the trial court. Thereafter, the appellate 4 court had proceeded to formulate the points for determination in appeal in view of the rival contentions of the parties in accordance with Order 41 Rule 31` C.P.C. It is not required by law that the appellate court should consider each and every issue again like the trial court and record its own independent finding. The distinction is explicit by the provision of Order 41 Rule 31 C.P.C. requiring the appellate court to state in its judgment the points for determination, the decision thereon, the reasons for the decision and the relief to which the appellant is entitled in case of judgment of reversal. The points for determination are to be formulated on the basis of contention of the parties as raised in appeal and the only requirement is that these points must be comprehensive enough to cover the important questions involved in the case. In the present case, the appellate court has taken notice of the issue framed by the trial court and its finding on those issues and thereafter in view of the rival submissions of the parties, it has formulated the point for determination in appeal. There is, thus full and substantial compliance of the requirement of Order 41 Rule 31 C.P.C by the appellate court below. The submission of the learned senior counsel in this regard has no substance. The learned senior counsel has further submitted that 5 the plea of adverse possession had been raised by the defendant in a proceeding under section 145 Cr.P.C. which had been subsequently dropped and the said proceeding was before coming into force of the Benami Transactions(Prohibition)Act, 1988 and as such the bar contained in section 4(2) of the Act will not be attracted in view of the legal position settled by the judgment of the Apex Court in R. Rajagopal Reddy(dead) & ors. Vs. Padmini Chandra Shekharan(dead), reported in A.I.R.1996 Supreme Court 238. This submission of the learned counsel for the appellant appears to be misconceived. The abovesaid judgment of the Apex Court nowhere deals with the situation as it has been projected on behalf of the appellant to do rather the law laid down in this judgment is clearly against the appellant. Admittedly, the suit has been filed after coming into force of the Benami Transaction(Prohibition) Act which by virtue of section 4(2) prohibits a defence based upon the claim of Benami. The Apex Court in R. Rajagopal Reddy’s case(supra) has held: “……..It is also pertinent to note that section 4(2) enjoins that no such defence “shall be allowed” in any claim, suit or action by or on behalf of a person claiming to be the real owner of such property…..” It is well-settled that the claim of title over an immovable property through transfer or other recognized modes 6 and claim of acquisition of title by adverse possession over the same property by the same person cannot be allowed to go together and the question of acquisition of title by adverse possession will not arise for consideration until the former claim of having legal title is given up. In Karnataka Board of Wakf Vs. Government of India & Ors., reported in .2004(3) PLJR 245(S.C.), the Apex Court has laid down: “……. pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced………” The appellate court below has rightly discussed this issue of adverse possession and rejected the case of adverse possession as pleaded by the defendant. No other error in the judgment of the appellate court below could be shown on behalf of the appellant. For the foregoing reasons it is held that there is no substantial of law involved in this appeal for consideration. This appeal is, accordingly, dismissed. roy ( V. Nath, J.)