IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.221 of 2000 BUDHU SAH & ORS Versus SHEO SHARAN SAH & ORS ----------- 13/ 15-10-2008 Heard learned counsel for the appellants and learned counsel for the respondents. 2. This second appeal has been filed by the defendants- appellants- appellants challenging the judgments and decree of the learned courts below. 3. The matter arises out of Title Suit no. 152 of 1984 (240/88) which was filed by the sole plaintiff-respondent- respondent first set for declaration that Amir Sah was the “Benamidar” of the plaintiff and had acquired no title in the land covered under the sale deeds dated 19.04.1950 and 10.01.1948 and also for declaration of plaintiff’s title over the suit land and further for declaration that deed of gift dated 28.11.1983 executed by defendant no.1 ( widow of Amir Sah) in favour of defendants no. 2 and 3 never came in operation and the same is not binding on the plaintiff and also for injunction, restraining the defendants from interfering with the plaintiff’s possession on the suit land and other ancillary reliefs. 4. The suit was contested by the original defendants no. 1 to 4 whereafter intervener- defendants no. 5 to 7 appeared , filed their separate written statements and contested the suit, claiming that the suit land was recorded in the revisional survey in the name of Shiv Banshi Sah, Ramdhari Sah and Jagdeo Sah, whereafter Jagdeo Sah died unmarried and Shiv Banshi Sah also died in the year 1950 in a state of jointness with Ramdhari Sah leaving behind him a daughter Most. Laxminia Devi. It is also - 2 - claimed by the interveners that before his death Shiv Banshi Sah, who was the Karta of the family, sold the suit plot to father of the defendants orally for a consideration of Rs. 85/- and in token thereof executed a letter of acknowledgement dated 19.09.1933 and since then the interveners are in possession of the said land. 5. The suit was decreed on contents with costs by the learned 1st Additional Munsif, Motihari vide his judgment and decree dated 18.02.1989 which was challenged by the interveners- defendants no. 5 to 7 in Title Appeal no. 41 of 1989. However, it may be noted that the original defendants no. 1 to 4 did not challenge the said judgment and decree of the learned trial court. The learned 5th Additional District Judge, East Champaran, Motihari, after hearing the parties, dismissed the appeal on contest against respondent 1st party ( plaintiff) and ex- parte against rest of the respondents ( defendants no. 1 to 4 ) vide his judgment and decree dated 06.04.2000. The said judgment and decree is under challenge in the instant second appeal filed by defendants 5 to 7. However, it may be noted that original defendant nos. 1 to 4 did not challenge the judgment and decree of either the trial court or the lower appellate court. 6. From the averments of the parties and the materials on record, including the judgments and decree of the learned courts below it is quite apparent that they have considered in detail the respective pleadings of the parties , the evidence on record as well as the provisions of law applicable to the same and thereafter have come to the specific finding that after admission of the interveners as defendants no. 5 to 7 as party in the suit and filing of written statement on their part, it was not necessary for the - 3 - plaintiff to file a rejoinder thereof by way of amendment in the pleadings or to seek any reliefs against the said defendants no.5 to 7. However, if the said interveners- defendants no. 5 to 7 were trying to seek any relief, they could have filed another suit for the same but they neither filed any suit nor they took any step for framing of fresh issues in the suit nor even they challenged the order by which the issues were framed in the said suit. In the said circumstances the judgment and decree of the learned courts below cannot be vitiated on that ground. 7 . So far the other question is concerned, learned courts below specifically found that the suit was filed on 16.04.1984 whereas Benami Transactions ( Prohibition) Act, 1988 came into force w.e.f. 05.09.1988 and hence the provision of the said Act would not be applicable to the instant case as according to the decision of the Hon’ble Apex Court in case of Raja Gopal Reddy Vs. Padmani Chandra Shekharan, reported in A.I.R. 1996 SC 238 it had no retrospective effect. In the said circumstances the learned courts below rightly came to the conclusion that the suit cannot be said to be not maintainable under the provisions of section 4 of the said Act. 8. The next question raised by the appellants with regard to the point of title is concerned, the plaintiff’s claim of Benami purchase in the name of the predecessor of defendants had been upheld by the learned trial court but defendants no.1 to 4, who are the persons who could have been aggrieved by the said decision, did not challenge the same and the said judgment and decree of the trial court attained finality with respect thereto and hence the sale deed executed by the original owner and duly registered - 4 - was rightly relied by the learned courts below. The second aspect of challenge of the appellants with regard to the title is based on an oral sale, which according to them was acknowledged by the vendor vide letter of 1933 ( Exhibit-B) but the learned courts below specifically found that the said alleged acknowledgement was doubtful and cannot be held to be genuine as the attending facts and circumstances in no manner suggested that Shiv Banshi Sah had orally sold the land in dispute to Kanhai Sah, the father of defendants no. 5 to 7.On the other hand, the claim of the plaintiff was based on registered deeds of 1948 and 1950 and the learned courts below specifically came to the conclusion that the plaintiff was found to be in possession since 1950 as per the evidence on record. 9. In view of the aforesaid facts and findings this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. B.Tiwary/ (S.N Hussain,J)