1 2025:CGHC:52859 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 239 of 2012 1 - Shobharam Kesharwani (Dead) Through LRs:- 1.1 - Hemdatta Kesharwani, aged about 58 years, S/o. Late Shobharam Kesharwani, R/o. Janjgir, P.S. Janjgir, District Janjgir- Champa (C.G.) 1.2 - Sadhna Gupta W/o Shri Prafull Gupta, Aged About 55 Years R/o Kududand, P.S. Civil Lines, Tahsil And District Bilaspur, Chhattisgarh 1.3 - Smt. Jyotsana Gupta W/o Shri Radheshyam Gupta, Aged About 52 Years R/o Village Bhupdevpur, P.S. Bhupdevpur, District Raigarh, Chhattisgarh 1.4 - Smt. Chhama Kesharwani W/o Shri Love Kesharwani, Aged About 50 Years R/o Village Bhatgaon, P.S. Shivri Narayan, District Baloda Bazaar-Bhatapara, Chhattisgarh ... Appellants versus Shankarlal Kesharwani S/o Late Shri Sadhram Kesharwani, Aged About 69 60 Years, R/o Gondpara, Ramnagar, Bilaspur, P.O. Bilaspur, Tahsil And District- Bilaspur, Chhattisgarh .............Defendant ... Respondent (Cause Title taken from Case Information System) VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2026.02.04 19:47:58 +0530 2 For Appellants : Mr. Prakash Tiwari, Advocate For Respondent : Mr. Rajesh Kumar Kesharwani, Advocate Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board 29/10/2025 1. The second appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the plaintiff against the impugned judgment and decree dated 03.03.2012, passed by learned District Judge, Bilaspur, in Civil Appeal No. 36-A/2010, whereby the first appeal filed by the plaintiff was dismissed and the judgment and decree dated 14.05.2010, passed by learned First Civil Judge Class- 1, Bilaspur, in Civil Suit No. 2-A/2003 was affirmed. 2. For the sake of convenience, the status of the parties are referred as shown in the civil suit. 3. The second appeal is admitted on 25.04.2016 on the following substantial questions of law:- “1. Whether in absence of pleadings of the parties, the finding of the appellate court that the transaction of the sale deed was an outcome of Benami transaction is perverse? 2. Whether the finding of the court below that the plaintiff has failed to prove the title in respect of suit property by virtue of sale-deed (exhibit P-1) is perverse or not?” 3 4. The original plaintiff Shobha Ram Kesharwani has filed a civil suit before the learned trial Court for vacant possession of the suit house situated at Gondpara (Ramnagar Bilaspur) which has been described in the map annexed with the plaint. It is pleaded by the plaintiff in the plaint that the suit house was recorded in municipal records in the name of the plaintiff since 1983 till 1990-91 along with one Ram Dayal Bani. Ram Dayal was the uncle of the plaintiff but he was not having any right or title over the suit house and he died in the year 1996. The plaintiff is owner of the suit house since 1950. He was in service as Food Inspector and posted at various places, however, his family was residing in the suit house and used to visit to Champa. Since the plaintiff was in service and posed at various places, he gave a licence for residence to the defendant over the suit house on 08.01.1974 but the ownership remained with the plaintiff. There was no issue of partition between the parties. The father of the plaintiff had purchased another house for defendant from Dwarka Prasad Pandey and Krishna Kumar Pandey, which is situated in front of the house of the plaintiff. The plaintiff is paying the municipal taxes on the suit house. During the existence of the licence, the defendant, without prior permission and information, constructed a room and his father and Hemdutt were residing in the suit house on behalf of the plaintiff. The agricultural were partitioned between the parties, but there is no right or title over the suit house, which is the plaintiff’s property. After the death of their father, the defendant is residing in the suit house illegally, and when the defendant was asked to vacate the suit house, he did not vacate it, therefore, the plaintiff has filed 4 the suit for possession. 5. The defendant contested the claim of the plaintiff and filed his written statement by denying the plaint averment with the pleading that the plaintiff or his family are not in possession of the suit house. He also denied that the house situated in front of the suit house is given to the defendant in partition. He pleaded that the other house was purchased by him from Vijay Kumar and Krishna Kumar Pandey and others on 25.05.1993 through registered sale deed in the name of his son Ashok Kumar Kesharwani. He denied the licence given by the plaintiff denied that the plaintiff has purchased the suit house in the year 1950. He further pleaded that the suit house was purchased by the father of the parties namely Sadhram Kesharwani through registered sale deed dated 23.08.1950 in the name of the plaintiff and Ram Dayal and from the very beginning Sadhram Kesharwani and his legal heirs are in possession of the same and an agreement/settlement deed was also executed on 08.01.1974 by the plaintiff. Their father have partitioned the property of the family during his life time and the suit house was given to the defendant in his share and the plaintiff was allotted the house situated at Champa and according to which the parties are residing in the respective houses. On 18.11.1988, the plaintiff had admitted to vacate the house which was given in partition to their another brother Omkar Prasad which was situated at village Lakhurri. In that Panch faisla dated 18.11.1988 it was mentioned that the properties of the parties have been partitioned during the life time of their father and they settled in their 5 possession. The defendant obtained permission from municipal corporation to construct a room in the suit house and after obtaining due permission, the construction was raised. Since the relation between the plaintiff and defendants was good, he had not right to get the suit house mutated in his own name. The defendant is residing in the suit house since 30-40 years and has been paying municipal taxes regularly and there is no right or title of the plaintiff over the suit house, and he is not entitled for its possession. 6. Based on the pleadings of the parties, the learned trial Court has framed the following issues: 1/- दत मन द म सप ? 2/- उ मन तद अनसर !टर# म$ % &आ ? 3/- द उ मन आप % रन# अर ? 4/- सत ए! द )? 7. In support of their claim, the plaintiff has examined himself as PW-1 Prafull Kumar Gupta, PW-2, Kartik Ram Jaiswal PW-3 and relied upon the document Ex.P/1, which is the sale deed dated 22.07.1950, Ex.P/2, Ex.P/3 and Ex.P/4 are the receipts of municipal taxes, Ex.P/5 is the copy of assessment register, Ex.P/6 is the receipt of municipal tax, Ex.P/7 is the envelop of registered letter. The defendants have examined himself as DW-1 and relied upon the document Ex.D/1which is the ration card, Ex.D/2 to Ex.D/12 is the copy of receipt of municipal taxes, Ex.D/13 is the agreement dated 08.01.1974. 6 8. After appreciation of oral as well as documentary evidence led by the parties, the learned trial Court dismissed the suit of the plaintiff, holding that the plaintiff has failed to prove that he is the title and possession holder of the suit house, which was obtained by him in a family partition; therefore, he is not entitled for possession of the suit house. 9. The judgment and decree dated 14.05.2010 passed by learned trial Court was challenged by the plaintiff before the learned first appellate Court and the learned first appellate Court has also dismissed the first appeal by affirming the judgment and decree of the trial Court holding that the sale deed Ex.P/1 is executed under the Benami transaction and the plaintiff has failed to prove that he was the title holder of the suit house. The said judgment and decree of the first appellate Court is under challenge in the second appeal, which is admitted on the substantial question of law as set out in the earlier part of this judgment. 10. Learned counsel appearing for the appellant/plaintiff would submit that the suit house was purchased by plaintiff and Ram Dayal Kesharwani. There is no evidence that the suit house was purchased by their father Sadhram or he provided the sale consideration. In the year 1950 when the sale deed was executed, the defendant was a minor. If the suit property was purchased by their father, there was no reason to purchase it in the name of Ram Dayal also. The municipal taxes have also been paid by the plaintiff and he filed the receipt of 7 municipal taxes. The defendant has pleaded in the written statement that the suit house was obtained by him in partition, but he has not disclosed when the partition took place amongst them. There is no document with respect to the partition of the suit house. From the document Ex.P/7, it has also been proved that the plaintiff was residing at Gondpara, Bilaspur. From the oral as well as documentary evidence, it has been proved that the plaintiff Shobha Ram is the owner of the suit house. He would further submit that in the agreement dated 07.01.1974 has not been duly executed and the defendant obtained the signature of only witness in the said deed in absence of the plaintiff. The stamp in which the agreement was executed was purchased for some other purposes, but it has been used to execute the agreement, and therefore, it was an illegal document, and no benefit could be extended to the defendant by the said agreement. Without there being any pleading of the defendant or without framing any issues with respect to the Benami transaction of the sale deed Ex.P/1, the learned first appellate Court held that the sale deed Ex.P/1 dated 22.07.1950, comes under the Benami transaction and it is not the property acquired by the plaintiff. He would further submits that in the year 1950 the Benami Transaction (Prohibition) Act, 1988 was not in existence and therefore, the provisions of Benami Transaction Act is not applicable to the present case. that too without any pleading or objection, therefore, the impugned judgment and decree passed by learned trial Court are perverse and illegal and the same are liable to be set aside and the plaintiff is entitled for decree of possession of the suit house. In 8 support of his submission, he would rely upon the judgments of “Smt. P. Leelavathi (D) by LRs v. Shankarnarayana Rao (D) by LRs” 2019 (4) SCC 231 and “R. Rajgopal Reddy v. Padmini Chandrashekharan” 1992 (2) SCC 630. 11. Learned counsel appearing for the respondent would submit that, the suit house was purchased by their father, through the registered sale- deed in the name of plaintiff and Ramdayal jointly. On 08.01.1974, the plaintiff had executed a agreement and the property was partitioned by their father during his lifetime and in that partition, the suit house of obtained by the defendant. A Panch faisala was also executed in favour of the defendant and he agreed to vacate the property, which was obtained by their another brother Onkar Prasad. The defendant obtained permission for construction of first floor of the suit house, but the permission was granted in the name of plaintiff, because the name of the plaintiff was recorded in the municipal records. The defendant is residing in the suit house since 30-40 years and paying the taxes regularly, therefore, the plaintiff is not entitled for any decree and the learned trial Court as well as First Appellate Court has rightly dismissed the suit of the plaintiff. He would also submit that, the suit house was purchased by their father in the name of the plaintiff. 12. I have heard learned counsel for the parties and perused the records of the trial Court as well as the First Appellate Court. 13. The substantial questions of law framed by this Court pertain to (i) 9 whether, in absence of specific pleadings, the finding of the first appellate Court that the sale deed dated 22.07.1950 (Ex.P/1) was a Benami transaction is perverse, and (ii) whether the finding that the plaintiff failed to establish title over the suit house is perverse. Both questions being interlinked, they are taken up together for consideration. 14. The claim of the plaintiff is that, the suit house was purchased by him along with his uncle Ramdayal, jointly on 22.07.1950 from one Dwarika Prasad for total consideration of Rs. 6,300/- and he got mutated his name in the municipal records. Later on, his uncle Ramdayal died. After having his graduation, he got employment in the Food Department and posted at various places. His family members were residing in the suit house. Since, the defendant and his another brother Onkar Prasad were harassing his father for partition of the ancestral property, his father has partitioned the property in the year 1988. Since, the suit house was owned by the plaintiff, they have not raised any objection at that time. He gave the suit house on rent to Jethuram Gupta, who resided there up to 1978. 15. The plaintiff claimed that he purchased the suit house in 1950. In his evidence, he disclosed his date of birth 01.10.1933 and in the year 1950 he studied in metric. In the year 1950, when he was an student, there would be no source of his income and he has not produced any evidence about his income to purchase the suit house. In para 9 of his evidence, he admitted that, at the time when the suit house was 10 purchased, he, his brother Shankar Lal and 10-12 other children were residing and studying at Juna Bilaspur, Shivrinarayan bada. He also admitted that the suit house was given on rent to Jethuram by his father. It was vacated for the bona fide need of residence of Shankar Lal. The plaintiff has further admitted in his evidence that, he owned another house at Bamhnidih. In para 14 of his evidence he admitted that, there was no any partition deed with respect to the houses of Lakhurri, Champa, Bamhnidih and Bilaspur. He voluntarily stated that, it was settled in the family that the suit house was to be given to plaintiff and the house of Champa was to be given to Shankar Lal and house of Bamhnidih was to be given to Onkar Prasad. 16. The plaintiff has stated in his examination-in-chief that, in the year 1993, their father had purchased another house admeasuring 25x10 feet in the name of Ashok Kumar and given to the defendant. When the plaintiff had stated that there was a partition of the property by their father, there was no need to purchase another house by their father in the name of Ashok Kumar and give it to the defendant. Further, when he himself stated in his examination-in-chief that, when Jethuram Gupta was evicted from the suit house, penalty of Rs. 700/- was imposed upon the defendant, which itself supported that, the suit house was purchased by the father of the parties and not by the plaintiff alone. 17. When the plaintiff came with the plea that the suit house was 11 purchased by him along with his uncle Ramdayal and it is his own property, he has to prove the source of his income at the time when the suit house was purchased. Admittedly, in the year 1950, when the suit house was purchased, the plaintiff was an student. He has not stated, as to when he came in service. 18. In the case of “Surendra Kumar v. Phoolchand (Dead) Through LRs. and Another” 1996 (2) SCC 491, the Hon'ble Supreme Court has held in para 6 that:- “6. Coming to the second question it is an admitted fact that Chhogalal was the eldest member of the family and was the manager of the Joint Family consisting of Chhogala, Ramchandra and Phoolchand. The agreement to sale is stated to have been made in the year 1951 and consideration money had been paid in 1951 and 1952 and finally sale deed was executed in the year 1961. At that point of time the present appellant was a minor and the property was therefore purchased in the name of the minor with Chhogalal as the guardian. In course of the proceedings appellant has taken the specific plea that the consideration money had been paid by his maternal grandfather and that plea has been rejected by the Courts below on consideration of material with the finding that the appellant has failed to establish the same. Thus there is no material to establish that consideration money for the property was paid by the appellant from out of his separate funds. It is no doubt true that there is no 12 presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family. Both the Courts below have scrutinised the evidence bearing in mind the aforesaid legal position and have rightly come to the conclusion that the property in question is the joint family property. We see no justification for our interference with the said concurrent finding of the two Courts below. The appreciation of evidence has been rightly made bearing in mind the correct legal position. The appellant thus has utterly failed to establish that the consideration money for the property was paid out of his personal funds. In the aforesaid circumstances agreeing with the two Courts below we hold that the property was the joint family property and therefore the respondents have 1/3 share each in the compensation amount. In the aforesaid premises this appeal is devoid of merits and 13 the same is accordingly dismissed but in the circumstances without any order as to costs.” 19. In the present case, the plaintiff claims title over the suit house solely on the basis of the registered sale deed dated 22.07.1950 (Ex.P/1), which stands in his name jointly with Ram Dayal. However, mere existence of a registered sale deed is not conclusive of ownership when surrounding circumstances and evidence clearly demonstrate that the consideration did not flow from the ostensible purchaser. From the plaintiff’s own admissions, it is evident that at the time of execution of Ex.P/1, he was a student studying in matriculation and had no independent source of income. He has neither pleaded nor proved any financial capacity or source from which he could have paid consideration for purchase of the suit house. In absence of proof of consideration, the presumption arising from the sale deed stands effectively rebutted. 20. The evidence on record further establishes that the suit house was managed, let out, and controlled by the father of the parties, Sadhram Kesharwani. The plaintiff has admitted that the house was rented out by his father, vacated for the residential need of another brother, and that the family properties were settled during the lifetime of the father. Such admissions clearly indicate that the father was the real owner and the sale deed was taken in the name of the plaintiff and Ram Dayal for convenience, which is a classic indicia of a Benami transaction as recognized under settled law prior to the Benami Transactions (Prohibition) Act, 1988. 14 21. As regards the contention that there was no specific pleading of Benami transaction by the defendant, it is to be noted that the defendant has categorically pleaded that the suit house was purchased by the father of the parties and that the plaintiff had no independent title over it. The substance of the pleading, rather than the terminology used, is material. Once evidence has been led by both sides on the issue of source of consideration and real ownership, and the plaintiff himself has admitted facts adverse to his claim, it cannot be said that the finding recorded by the first appellate Court is beyond the pleadings or perverse. 22. The reliance placed by the appellant on the judgments in R. Rajgopal Reddy v. Padmini Chandrashekharan and Smt. P. Leelavathi v. Shankarnarayana Rao is misplaced. There is no dispute with the proposition that the Benami Transactions (Prohibition) Act, 1988 is prospective in operation. However, the present case does not involve enforcement of any Benami claim barred by the Act, but rather an examination of real ownership based on evidence relating to a transaction of the year 1950. The Courts below have not granted any relief contrary to the Act but have merely determined the nature of ownership on appreciation of facts. 23. The first appellate Court, being the final Court of facts, has re- appreciated the entire oral and documentary evidence and has recorded a cogent finding that the plaintiff failed to establish title and that the suit house was purchased by the father of the parties. Such 15 finding is based on evidence, admissions of the plaintiff, long possession of the defendant, payment of municipal taxes, family settlement, and absence of proof of consideration by the plaintiff. The said finding cannot be termed as perverse or legally unsustainable. 24. It is well settled that in a second appeal under Section 100 of the Code of Civil Procedure, this Court does not act as a Court of facts and interference is permissible only when the findings recorded by the Courts below are perverse, based on no evidence, or are contrary to settled principles of law. Concurrent findings of fact, even if another view is possible, cannot be interfered with unless such findings shock the judicial conscience. 25. Consequently, both the substantial questions of law are answered against the appellant. It is held that the finding of the first appellate Court regarding the benami nature of the transaction is not perverse, and the conclusion that the plaintiff has failed to prove his title over the suit house does not suffer from any legal infirmity. 26. In view of the above, the second appeal being devoid of merit deserves to be and is hereby dismissed. No order as to costs. 27. An appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge ved