1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.431 OF 1991 Prabhu s/o Rajanna Potmakar Age: 30 Yrs., occu. Agril. R/o Village Kothala, Tq. Biloli, District Nanded (Post Dugaon, Tq.Biloli) ..APPELLANT (orig.Plaintiff) VERSUS 1) Gangadhar s/o Sayanna Age: 22 Yrs., occu.Salegaon Tq. Biloli, Dist.Nanded. 2) Bajirao s/o Narayan Age:40 Yrs., occu. Agril. r/o Village Kothala, Tq. Biloli, Dist.Nanded ..RESPONDENTS (orig.Defendants) --- Mr.VB Ghatge, Advocate for the appellant. Respondent nos.1 and 2 served. --- CORAM : K.U.CHANDIWAL, J. DATE : 26th June, 2009 *** ORAL JUDGMENT : 1) Heard learned Counsel for the appellant. 2 2) The unsuccessful plaintiff at both the courts against concurrent findings is in second appeal. The plaintiff’s contention is that he has a right of ownership in respect of suit land to the extent of 40 Are, as he has contributed for purchase of the property as the sale-deed is in the name of his sister and his nephew, who was minor at the material time. The plaintiff came with a theory that the partition of the suit land has taken place, he was allotted half portion on western side while defendant no.1 was allotted half portion on eastern side. Based on such partition, the plaintiff enjoyed the possession over the suit land. According to him, there was demarcation of the boundaries running north- sought of the suit land. Even the separate entries in the revenue record were made. 3) The suit came to be dismissed as the learned Judge of the court of first instance on analyzing the evidence of plaintiff – Prabhu, Kerya s/o Malhari (PW.2) and Manmathrao (PW.3) found that the theory propagated by the plaintiff of contributing for purchase of the land could not be accepted. It was accepted position that plaintiff is brother of Nagrabai, mother of deft.no.1, who indeed came to reside to the village of plaintiff due to death of her husband. Though plaintiff canvassed that there was mutation entries in his favour, on analysis of 3 evidence, the courts found that it is not so. There were no such entries since 1977-78 in the column of ownership. However, in the cultivation column mode of entry was shown to be under category 3 while the entry of defendant no.1 was shown in the category 2. Thus, the court recorded that the plaintiff was not cultivating the land based on his title. The transaction of sale-deed indeed illustrate that it is the sister, who has contributed and purchased the property in the name of her minor son. There is no whisper that at any moment, it was the plaintiff who has contributed for purchasing the property or it was his hard-earned money that has been utilized. The extraneous evidence to read against the sale-deed is permissible. However, the Court on analysis of the evidence found, it could not be established that the plaintiff has contributed for purchase of the property in the name of the minor defendant no.1 at the material time in the year 1969. 4) The plaintiff asserts that there was obstruction from the defendant in his possession for the first time in March, 1981. The record showed that the plaintiff’s possession of 1 acre has not at all been disturbed by the defendant. Consequently, the learned Judge analyzing the evidence dismissed the suit. 4 5) The appellate court though dismissed the appeal, but it was on the ground, that the transaction as propounded by plaintiff to be a Benami transaction, has retrospective effect in terms of Benami Transactions (Prohibition) Act, ( 45 of 1988), which has come into force on 19th May, 1988. The first appellate court took recourse to section 2(a) of the said Act, which contemplate Benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person. 6) The first Appellate Court for the purposes of such observation took recourse to the Judgment of Mithilesh Kumar and Anr. Vs. Prem Behari Khare – AIR 1989 SC 127. However, the Hon’ble Lordships of the Supreme Court has not approved this view, and by larger Bench in the matter of R.Rajgopal Reddy Vs. Padmini Chandrashekharan – AIR 1996 SC 238, have observed that the Benami Transaction (Prohibition) Act, 1988 is prospective in nature and will not be applicable to the transactions earlier to 1988. The transaction in the instant case is of 1969. Though I find that the first Appellate court did not discuss the evidence, as he took recourse to the legal position then prevalent and dismissed the appeal. However, I have independently assessed the evidence and I find that nothing 5 more could have been done in the matter than what the Court of first instance has done. Consequently, the Second Appeal sans merit, it is dismissed. No costs. Sd/- ( K.U.CHANDIWAL) JUDGE agp/bdv/sa431-91 Authenticate copy (BD VADNERE,PS)