Dilip Malakar vs Santosh Malakar

This first appeal has been filed against the judgment and decree dated 16.01.2024 (Decree signed on 25.01.2024) passed by the learned Civil Judge (Sr. Div)-I, Bokaro in Original Suit No.68 of 2021 whereby and whereunder the original suit seeking partition of the suit property has been dismissed on contest.

The appellant was the plaintiff in Original Suit No.68 of 2021 wherein he had prayed for the following reliefs:

The suit property as mentioned in Schedule-A of the plaint is-

It was the case of the plaintiff that, the landed property situated within the jurisdiction of District- Bokaro under Mouza Telidih in Khata No. 21 Plot No. 1366 area 04 Decimal was purchased by plaintiff and Defendant in the year of 2011 vide Sale deed No. 568 dated 20.01.2011 from Registry office Chas, Bokaro. After purchasing the said property both persons constructed four shops under 1^st Floor and residential house made on 2^nd Floor and presently running the shop and reside with their family members. Out of the aforesaid 4 decimals, 1 ½ decimals was acquired by NHAI and all compensation amount was invested under building work of the said property. The plaintiff claimed ½ portion of the building with land (2 ½ decimals). The plaintiff several times requested the defendant to partition the property but defendant always denied. The cause of action arose on 10.11.2021 when plaintiff called some relatives for Panchayati but Panchayati also failed between both parties and defendant denied to give any share to the plaintiff.

It was the case of the defendant that the plaintiff has suppressed the material fact that the present suit property was purchased from the amount of the father and other brother and the plaintiff has not mentioned in the plaint regarding the consideration amount of the land who has paid the consideration amount to the vendor of the said property and in absence of such proof the plaintiff has failed to establish his case. It was asserted that the entire construction has been done by the defendant and his father and so no question arises to give any share in the above suit property. The property has been purchased by the father and the defendant from their hard-earned money and mere name in the deed did not create any right over the suit property, ipso facto.

It was also asserted that 1.5 decimals of land have been taken for the highway and compensation amount has been credited in the account of the defendant as because the entire consideration amount regarding the sale deed has been paid by the Defendant and his father. So, question of partition does not arise and the plaintiff has not given any documents regarding the payment with respect to the sale deed by the plaintiff to the vendor so the entire contention of the plaintiff is nullified. The cause of action was denied. A prayer was made to dismiss the present suit by imposing exemplary cost against the plaintiff.

The suit was dismissed on contest.

Learned counsel for the appellant-plaintiff, while giving the facts of the case, has submitted that the case of the plaintiff in brief was that the property consisting of 4 decimals of land was purchased by plaintiff and defendant jointly in the year 2011 vide Sale Deed No.- 568 dated 20.01.2011; Both persons constructed four shops under first floor and residential house made on second floor and presently running the shops and reside with their family members; 1.5 decimals of the said property was acquired for highway by NHAI for which compensation amount was credited in the account of defendant who thereafter transferred almost half of the compensation amount in the account of Plaintiff's wife (Exhibit-A); Plaintiff is entitled to get half portion of building with the land with respect to the remaining property which is the suit property (2 and ½ decimals of land and building thereon). The cause of action arose on 10.11.2021 when the Defendant denied to give share to the Plaintiff.

Learned counsel further submits that the defendant filed written statement contesting the suit by taking a stand that the property was purchased from the amount of the father and defendant but the plaintiff has not mentioned in the plaint regarding the consideration amount of the land that who has paid the consideration amount to the vendor of the said property; the entire construction was done by the defendant and his father and so no question arises to give any share in the suit property; The property has been purchased by the father and the defendant and mere name in the deed does not create a right over the suit property; The Defendant further stated that 1.5 decimal land has been taken by the N.H. Authority and for that, compensation has been given by the N.H. Authority.

The learned counsel submits that altogether 7 issues were framed by the learned court including the issue as to whether the plaintiff and defendant had purchased the suit property jointly, vide sale deed no.- 568 dated 20.01.2011; as to whether plaintiff is entitled for 1/2 of share in the schedule A property and as to whether the National Highway Department paid any compensation on account of acquisition to the plaintiff. He submits that all the issues were decided in favour of the defendant and against the plaintiff.

While referring to the evidences placed on record, the learned counsel for the appellant-plaintiff has submitted through his written submissions as under: -

It is submitted that the with regard to acquisition of land by NHAI, compensation amount of Rs. 3,70,729/- was credited into the account of Santosh Malakar (defendant) on 09.03.2017 and total Rs. 1,47,000/- was transferred into the account of Puja Devi (Wife of Plaintiff) between the period of 15.05.2017 to 21.07.20217 i.e., after receiving the compensation amount from NHAI and the same was utilized for construction of shops and house. The property was jointly constructed by both the parties. Almost half of the amount of compensation was credited into the account of Puja Devi (Wife of the plaintiff) which is evident from exhibit-A.

Learned counsel for the appellant, while challenging the impugned judgment, has submitted that the learned court has failed to take into consideration that the sale-deed itself did not disclose as to who paid the consideration amount, rather the sale-deed indicated that the consideration amount was paid by the purchasers. It is not in dispute that the sale-deed was executed jointly in the name of the plaintiff and the defendant. He has further referred to section 45 of the Transfer of Property Act and has submitted that the case would be guided by the aforesaid section.

Learned counsel for the appellate further submitted that P.W. 1 has supported the case of the plaintiff and has stated that at the time of payment of the consideration amount, he was present and both the brothers had made payment of consideration amount in equal half portion.

The learned counsel also submitted that the evidences placed on record clearly reveal that when 1 ½ decimals of land was acquired by NHAI, though the entire compensation amount was credited into account of the defendant, but the defendant had transferred, through bank transaction, about 50% of the compensation amount in the name of the wife of the plaintiff. The learned counsel submitted that the act of transfer of 50% of the compensation amount to the wife of the plaintiff itself reveals that the defendant acknowledged that the plaintiff had ½ share in the property. He further submitted that since ½ share of the compensation amount was transferred in the name of wife of the plaintiff, so there was no occasion to challenge the payment of compensation amount from NHAI exclusively in the name of the defendant.

He further submitted that otherwise also, payment by NHAI to defendant by itself is not arising out of any adjudication and therefore, this action by itself could not have been taken into consideration by the learned court to hold that the defendant was the exclusive owner of the suit property.

He further submitted that the finding of the learned court in connection with Issue No.6 is perverse, whereby it has been observed that National Highway Authority, after proper verification, had granted compensation amount in favour of the defendant and since the plaintiff did not raise any claim over the compensation amount or any objection in the matter of payment of compensation amount, adverse inference could be drawn against the plaintiff.

The learned counsel for the appellant submitted that aforesaid approach of the learned trial court to decide the title of the party on the basis of compensation amount disbursed by National Highway Authority is unknown in law and merely because no objection as such was raised by the plaintiff at the time of disbursal of compensation exclusively in the name of the defendant, the same has no bearing in the matter in the light of the admitted fact that almost half of the compensation amount was credited in the name of the wife of the plaintiff. He submits that once the plaintiff had received half of the compensation amount through his wife, there was no occasion to raise any dispute on the apportionment of compensation amount received from NHAI.

The learned counsel for the appellant has also submitted the evidence of the father of the plaintiff and the defendant is also of no consequence, inasmuch as, he was not present at the time of execution of the sale-deed and it has come in evidence that the father was himself paralyzed and bed-ridden.

The learned counsel for the appellant has referred to the examination-in-chief and the cross-examination of the witnesses examined on behalf of the plaintiff and the defendant and has submitted that in view of the exhibit- 1 and the materials placed on record, the plaintiff had proved ½ share over the suit property and therefore, the impugned judgment dismissing the suit on the ground that it was only the defendant who had paid the consideration amount cannot be sustained in the eyes of law. He submits that such findings are perverse.

Learned counsel for the respondent, on the other hand, referred to Issue No.6 and submitted that the compensation amount of portion of the acquired property having been credited by National Highway Authority only in the account of the defendant without any objection from the side of the plaintiff, itself reveals that the plaintiff had no claim over the purchased property in the name of the plaintiff and defendant including the suit property and the plaintiff was just a name lender. He submits that such non-action on the part of the plaintiff, inasmuch as, he neither claimed any compensation with respect to the acquired 1 ½ decimals of land nor raised any objection to the payment of compensation exclusively in the name of the sole defendant, has been rightly considered by the learned court to hold that the plaintiff was not entitled to any partition as the plaintiff had not made any payment of consideration amount, though his name was included in the registered sale-deed along with the defendant.

On the basis of the pleadings of the parties, the learned trial court framed seven issues for consideration, which are as follows:

The learned trial court considered the materials available on record and first took up Issue Nos.4 and 5 together and recorded its findings at Paragraph No.6 which are as under:

The learned trial court took up Issue No.6 and recorded its findings at Paragraph No.7, which are as under:

The learned trial court took up Issue Nos.1, 2 and 3 and recorded its findings at Paragraph No.8, which are as under:

The learned trial court decided Issue No.7 against the plaintiff recording that the plaintiff is not entitled for any relief or reliefs as prayed. Accordingly, the learned trial court decided all the issues against the plaintiff and dismissed the suit on contest with cost. All the issues were decided against the plaintiff and in favour of the defendant.

After hearing the learned counsels for the parties, the following points of determination arise in the present first appeal:

In course of trial, the plaintiff examined 04 witnesses in support of his case. PW-1 is Amit Kumar, PW-2 is Puja Devi, PW-3 is Shiv Kumar Malakar and PW-4 is Dilip Malakar who is the plaintiff of the case.

PW-1 (Amit Kumar) filed his examination-in-chief on affidavit stating that he knows both the parties. The plaintiff is the elder brother and defendant is the younger brother. He further stated that the plaintiff and defendant have purchased 04 decimals of land bearing Plot No.1366, Khata No.21, Mouza- Telidih from Ramesh Chandra Ghoshal, Ravindra Nath Ghoshal and Amit Kumar Ghoshal through Sale Deed No.568 dated 20.01.2011 and he was present at the time of registration and payment of money. The entire consideration amount was paid and both brothers had paid half-half amounts and after the purchase, both have jointly constructed house and shop. He further stated that the land was purchased in the names of both the brothers, but the defendant is not willing to give any share to the plaintiff. He further stated that out of 04 decimals, 1½ decimals of land have been acquired for the N.H. and the claim of the plaintiff is true. During cross-examination, he admitted that he is not a witness in Sale Deed No.568 dated 20.01.2011. He further admitted that he does not know the name of the seller of the property. He denied the suggestion that the defendant and his father had paid the substantial amount of the consideration. He further admitted that NHAI has transferred the compensation amount of the acquired land in the bank account of the defendant. He further admitted that the plaintiff and defendant had paid Rs.2,40,000/- @ Rs.60,000/- per decimal as the consideration amount of the land to the land owner. The defendant had paid the amount through cheque and the plaintiff does not know how to do banking transactions.

PW-2 (Puja Devi) is the wife of the plaintiff. She filed her examination-in-chief on affidavit stating that she knows both the parties. She stated the same facts supporting the case of the plaintiff as stated by PW-1. She further stated that she was present at the time of registration and payment of money. She further stated that out of 04 decimals, 1½ decimals of land have been acquired for N.H., but the compensation amount has been taken by the defendant alone and therefore, the claim of the plaintiff is true. During cross-examination, she admitted that the land was registered in the month of January, 2011, but she was not present at the time of payment of money. She also admitted that the plaintiff had given the amount in cash, but there is no document with regard to the payment of the amount. She further admitted that NHAI had transferred the compensation amount of the acquired land in the bank account of the defendant. She also admitted that the plaintiff and defendant are five brothers. She denied the suggestion that the defendant and his father had paid the entire consideration amount at the time of purchasing the land and the plaintiff had not paid any amount.

PW-3 (Shiv Kumar Malakar) is the cousin of the plaintiff and the defendant. He filed his examination-in-chief on affidavit stating that he knows both the parties. He also stated the same facts as stated by PW-1 and 2 supporting the case of the plaintiff. He further stated that he was present at the time of registration and payment of money. He further stated that out of 04 decimals, 1½ decimals of land have been acquired for N.H., but the compensation amount has been taken by the defendant alone and therefore, the claim of the plaintiff is true. During cross-examination, he admitted that the land was registered in the year 2011. He further admitted that he is not a witness in the sale deed. The plaintiff is five brothers and two sisters.

PW-4 (Dilip Malakar) is the plaintiff of the case. He filed his examination-in-chief on affidavit stating that he is the elder brother and the defendant is the younger brother. He further stated that he and the defendant have purchased 04 decimals of land bearing Plot No.1366, Khata No.21, Mouza- Telidih from Ramesh Chandra Ghoshal, Ravindra Nath Ghoshal and Amit Kumar Ghoshal through Sale Deed No.568 dated 20.01.2011. He exhibited the certified copy of Sale Deed No.568 dated 20.01.2011 as Exhibit-1. He further stated that he had paid the consideration amount to the seller and the entire consideration amount was paid in his presence and he had paid half of the amount and the defendant had paid the half amount. After the purchase, both have jointly constructed house and shop. He further stated that the land was purchased in the names of both brothers which is mentioned in the sale deed, but the defendant is not willing to give his share to him. He further stated that out of 04 decimals, 1½ decimals of land have been acquired for N.H., but the compensation amount has been taken by the defendant alone and therefore, his claim is true. During cross-examination, he admitted that they are five brothers and three sisters. He further admitted that he had paid the amount in cash at the time of purchasing the land, but he has not filed any receiving with regard to the payment. He further admitted that NHAI had paid the compensation amount in the account of the defendant. He denied the suggestions that the defendant and his father had paid the consideration amount of the land and the defendant and his father and their other brothers have contributed in construction of the house. He also admitted that he was residing at Sector-8, Bokaro at the time of construction of the house and his father was not residing there, but sometimes he had spent the money and sometimes the defendant had spent the amount for construction of the house. He further denied the suggestion that the defendant has paid Rs.2,80,000/-through cheque and Rs.40-50 thousand in cash to his wife namely, Puja Devi.

The defendant examined 03 witnesses in support of his case. DW-1 is Baban Malakar, DW-2 is Dinanath Kumar and DW-3 is Santosh Malakar who is the defendant of the case.

DW-1 (Baban Malakar) is the father of both the parties. He filed his examination-in-chief on affidavit stating that he knows both the parties and is well acquainted with all the facts of the case. He further stated that the plaintiff is his elder son and the defendant is his younger son and the defendant is looking after, maintaining and bearing all the expenses of the entire family including him and other brothers. The plaintiff has filed the case against the defendant after concealing the true facts of the case and therefore, the case is not maintainable. He further stated that as his other children were minors, the name of the plaintiff was mentioned in the sale deed, whereas he (DW-1) and the defendant had made the entire payment of the land to the sellers and the plaintiff had not paid a single penny. He (DW-1) and the defendant had paid Rs.2,40,000/- through cash and cheque. The plaintiff was unmarried at that time and therefore, his name was entered in the sale deed. He further stated that the house on the land has been constructed by the defendant only and the plaintiff has not spent a single penny and therefore, his claim is not true and the suit is fit to be dismissed. He further stated that NHAI had made the entire payment in the account of the defendant and has not paid any amount to the plaintiff. He further stated that the defendant has paid of Rs.2,80,000/- to the plaintiff’s wife namely, Puja Devi, out of which Rs.2,67,000/- has been paid through cheque. During cross-examination, he admitted that he is having altogether five children. He also admitted that his name is not mentioned in the sale deed as the purchaser of the land.

DW-2 (Dinanath Kumar) is the youngest brother of both the parties. He filed his examination-in-chief on affidavit stating that he knows both the parties and is well acquainted with the facts of the case. He further stated that the plaintiff has not made any kind of economic assistance in the purchase of the land, rather the defendant and his father has purchased the land from their earnings and the defendant has also constructed the single storied house from his earning and the plaintiff has not contributed a single penny. He further stated that the entire consideration amount of Rs.2,40,000/- has been paid by his father and the defendant in cash and through bank transfer and the plaintiff has not paid a single penny. He also stated that NHAI has transferred the entire compensation amount in the bank account of the defendant. He has stated the remaining facts of the case as stated by DW-1. He stated that the claim of the plaintiff is not true and baseless and the suit is not maintainable. During cross-examination, he admitted that he is five brothers and the land was purchased in the year 2011. He also admitted that he was 10 years old at the time of registration of the land. He further admitted that his father had neither issued any cheque, nor had transferred any money in account of any person in connection with the land. He denied the suggestion that the plaintiff had paid Rs.2,35,000/- to the sellers and that Rs.1,20,000/-was doubled in post office which was paid to the seller.

DW-3 (Santosh Malakar) is the defendant of the case. He filed his examination-in-chief on affidavit stating that the plaintiff is his own brother. He further stated that the plaintiff has filed the case on the basis of false and concocted facts and without any cause of action and he is not entitled for any kind of relief and therefore, the suit is fit to be dismissed. He further stated that he (defendant) and his father had purchased the suit property in the year 2011 from their hard earnings, but as the other brothers were minors, the name of the plaintiff was entered in the sale deed. The plaintiff has not filed any evidence with regard to payment of money to the sellers. He further stated that under coercion, in lieu of the land, he has given Rs.1,20,000/- in the year 2017 and Rs.1,47,000/- through three cheques to the wife of the plaintiff namely, Puja Devi. He further stated that he (defendant) has constructed a double storied house on the land and the entire expenses for construction of the house have been made by him (defendant). He had made payments of Rs.10,000/-to Satnam Singh, Rs.1,15,000/- to Ganesh Mahto, Rs.15,000/- to Santosh Kumar and Rs.10,000/- to Nitai Chandra Mahto against the sand, cement, rod, etc. and other constructions materials. He exhibited his entire original Passbook bearing Account No.11001395 of Bank of India, Sector-9, B.S. City Branch showing transactions from 28.01.2014 to 27.11.2019 as Exhibit-A (with objection). He further stated that NHAI has paid compensation amount of Rs.3,70,792/- to him (defendant) against acquisition of 1.5 decimals of land and in this regard, the Bank Passbook has already been exhibited as Exhibit-A. He further stated that the plaintiff has filed the suit with ulterior motive without having cause of action, as his name is mentioned in the sale deed, but he had not paid a single penny for purchasing the land and therefore, the suit of the plaintiff is fit to be dismissed. He also stated that the claim of the plaintiff is false and the plaintiff is not entitled to any kind of relief. During cross-examination, he admitted that they are altogether five brothers namely, Pappu Malakar, Anil Malakar, Dilip Malakar, Santosh Malakar and Prem Kumar. He further admitted that the names of purchasers are mentioned in the sale deed as Santosh Malakar (defendant) and Dilip Malakar (plaintiff), but it is not mentioned in the sale deed that the consideration amount has been paid by Santosh Malakar (defendant) only. He further admitted that the name of his father is not mentioned in the sale deed as a purchaser. He also admitted that no document was prepared with regard to payment of money to the plaintiff in lieu of the land. He further admitted that the entire compensation amount was received in the account of the defendant. He also admitted that at the time of execution of sale deed, the names of their brothers were not mentioned as they were minors. He further admitted that another 05 decimals of land has been purchased in Telidih in the names of the defendant and plaintiff.

It is important to note the following: -

Thus, neither the plaint nor the written-statement mentions about the consideration amount of the sale deed nor the plaintiff /defendant have stated anything about the consideration amount of the sale deed; some of their witnesses, including their father, have stated that the consideration amount was Rs.2,40,000/-. However, the sale deed reveals that the consideration amount was Rs.60,000/- and the document value was Rs.1,74,000/- as per the circle rate.

Admittedly, the sale deed is in the name of the plaintiff and the defendant and it is not mentioned as to who paid the consideration amount to the vendors. It is the specific case of the plaintiff that the plaintiff and the defendant paid the consideration amount ½ and ½ and on the other hand, it is the specific case of the defendant that the consideration amount was jointly paid by the defendant and the father of the parties and no consideration was paid by the plaintiff. The defendant or his father have not mentioned as to what amount was paid by the defendant and what amount was paid by their father and the father is not even aware of the exact consideration amount of the sale deed and he is not a witness to the sale deed nor claims that he was present at the time of execution of the sale deed and has also not stated as to what amount was paid by cheque and what amount was paid by cash to the vendors. It is not the case of the defendant that he had paid the entire consideration amount, but his case is that consideration was partly paid by him and partly by father of the plaintiff and the defendant, and the transaction was made through cheque / cash. Admittedly, the father, who is said to have paid part consideration, is not the vendee of the suit property nor is a witness to the sale deed nor was present at the time of execution of the sale deed. It is further case of the defendant that the portion of the purchased property was acquired by NHAI and the entire compensation was paid to the defendant and hence the remaining property also belongs exclusively to the defendant and the plaintiff is not entitled to its partition in spite of the fact that the sale deed is in the name of the plaintiff and the defendant.

The suit seeking partition filed by the plaintiff relates to 4 decimals of land which was covered in sale-deed no. 568 dated 20.01.2011 out of which 1 ½ decimals of land was already acquired by National Highway Authority of India. The property stands in the name of the plaintiff and the defendant, who happen to be full brothers. The deed of the year 2011 has been exhibited as exhibit-1 in which the names of the defendant and the plaintiff have been shown as joint purchasers and the consideration amount of the property as per the deed is Rs. 60,000/-. As per the deed, the consideration amount has been received by the seller while transferring the property upon receipt of which, he transferred the property to the joint purchasers, that is, the plaintiff and the defendant.

It was also the case of the plaintiff in the plaint that after purchasing the property, both persons constructed four shops under 1^st floor and residential house was made on the 2^nd floor and they are presently running shops and are residing over the property with their family members.

It was his further case that 1 ½ decimals of land was acquired by NHAI for which compensation was paid and therefore, suit property was remaining 2 ½ decimals. With respect to the cause of action, it was the case of the plaintiff that on 10.11.2021, the plaintiff had called some relatives for Panchayati and asked for partition, but the defendant denied.

On the other hand, the case of the defendant was that there was no cause of action, right to sue, etc. The suit was barred by limitation, estoppel, waiver, acquiescence and also suffered from mis-joinder as well as non-joinder of necessary parties. It was the specific case of the defendant in paragraph 12 of the written statement that the suit property was purchased from the amount of the father and other brother, but the plaintiff had not mentioned this fact in the plaint as to who had paid the consideration amount to the vendor of the property and in absence of which, the plaintiff had failed to prove his case. It was his specific case that the suit property was purchased by the father and the defendant from their hard-earned money and mere name in the deed did not create any right over the suit property.

Thus, it was never the case of the defendant that the suit property was purchased exclusively from his income or he alone had paid the consideration amount, rather he took a stand that the father of the plaintiff and the defendant and the defendant had paid the consideration amount. It was further admitted by the defendant in the written statement that 1 ½ decimals of land was acquired by NHAI and it was asserted that the entire compensation amount was credited in the account of the defendant and on the strength of payment of such compensation amount, the defendant asserted that the defendant was bonafide purchaser of the suit property as because the entire amount was paid by the defendant and his father and therefore, no question could arise for partition of the property.

Both the parties led oral and documentary evidences.

P.W. 4 is the plaintiff of the case and P.W. 2 is the wife of the plaintiff namely, Puja Devi. P.W. 1 is the full brother of the plaintiff and the defendant and P.W. 3 is the cousin brother of the plaintiff and the defendant.

P.W. 1 is aged 23 years as on 11.07.2023, on the day he deposed before the learned court, meaning thereby, he was just 12 years of age in the year, 2011 when the property was purchased. However, he has deposed that in the registry office when there was transaction of money, he was present and he was also present at the time of payment of consideration amount and asserted that the consideration amount was paid half-and-half by both the plaintiff and the defendant. He also deposed that both of them had jointly constructed the shops and the house. So far as cause of action is concerned, he has deposed that a Panchayati was held, but the defendant refused to give half share of the property. During cross-examination, this witness admitted that he was not the witness to the deed of sale nor he could disclose the name of the vendors. He denied the suggestion that the consideration was paid by the defendant and their father. He has further stated that no document was filed by him with respect to the money spent by the plaintiff to purchase the property. He stated in his cross-examination that the value of the property was Rs. 60,000/- per decimal and total Rs. 2,40,000/- was paid. He also stated that the defendant paid his portion of consideration by cheque, but the plaintiff did not know how to remit amount through bank. He has also stated that the plaintiff had worked in garage for 7 to 8 years. He had no idea as to what work the plaintiff used to do prior to 7 to 8 years.

So far as P.W. 3 is concerned, he is the cousin brother of the parties. He has stated that at the time of transaction, the entire money was paid in his presence and both the brothers had paid half-and-half of the consideration amount and both of them have jointly constructed the house and the shop. The property was purchased in the name of both the brothers. He has also supported the fact that one Panchayati was held, but the defendant refused to participate and ultimately, the case was filed.

Section 45 of the Transfer of Property Act, 1882 is quoted as under:-

Section 45 of the Transfer of Property Act clearly provides that when a transfer of immovable property for consideration is made in favour of two or more persons jointly, it makes them co-owner of the property and their interest are in proportion to the share of the consideration that they have advanced. In case the consideration is paid out of a common fund, their interest would be same as their share in the common fund.

In the present case, the plaintiff claims to have equally contributed with respect to the purchased property and the defendant claims that the plaintiff did not make any contribution towards payment of consideration, rather the defendant and the father together paid the consideration amount. It is not the case of the defendant that he had exclusively paid the entire consideration amount. Neither the plaintiff nor the defendant in their plaint and written statement mentioned a word about the consideration amount for the suit property. Some of the other witnesses, including the father, who was examined on behalf of the defendant, has mentioned the consideration amount of the suit property as Rs. 2,40,000/- and claimed that a portion of the consideration amount was paid by him. However, this does not match with the sale deed, inasmuch as, the entire consideration amount in the sale deed is shown as Rs. 60,000/- only, which was much lower than the circle rate, as is apparent from the sale deed itself, as discussed above.

It is an admitted fact that a portion of the property covered by the sale deed was acquired by National Highway Authority of India and the defendant claimed that the entire compensation amount was paid in the name of the defendant. It is not clear from the records as to how the entire consideration amount was paid in the name of the defendant when the registered sale deed was standing jointly in the name of the plaintiff and the defendant, and the registered sale deed neither referred to any proportion of share between the two, nor it mentioned anything about the proportion of the consideration paid by each, the plaintiff and the defendant.

It is also important to note that the defendant, though has taken a stand in the written statement that part consideration amount was paid by him and partly it was contributed by his father, but in his evidence, he has not stated as to how much was contributed by his father and how much was his own money. The defendant has also stated that the consideration was paid partly by cheque and partly by cash, but the sale deed does not refer to any payment by cheque, nor there is any recital in the sale deed that any portion of the consideration amount would be paid in future.

Further, the records of the case reveal that the defendant claimed that an amount of Rs.3,70,792/- was received by the defendant in lieu of acquisition of land to the extent of 1 ½ decimals by NHAI, and it has also come on record that certain amount was transferred by the defendant in the name of the wife of the plaintiff, but during the cross-examination of the wife of the plaintiff, she has not been put to any question with regard to such transfer in her account. Further, the order of the Land Acquisition Officer or the award passed by the Land Acquisition Officer has also not been placed on record. It is important to note that the defendant in his cross examination has stated that under coercion, in lieu of the land, he has given Rs.1,20,000/- in the year 2017 and Rs.1,47,000/- through three cheques to the wife of the plaintiff namely, Puja Devi.

It is not the case of the defendant that plaintiff was not capable of earning or had no independent source of income at the time when the property was purchased way back in the year 2011. Rather, the defendant himself in his cross-examination has stated in paragraph 22 that in the sale deed it has not been mentioned that the consideration amount has been paid only by the defendant. In paragraph 23 of his cross-examination, he has stated that the defendant was doing the work of mechanical and recoding and the plaintiff was also doing the mechanical work. He has also stated that in the sale deed the father is not shown as a purchaser of the property. It is also important to note that in the sale deed the father is neither the purchaser nor the witness to the sale-deed.

It is also important to note that the defendant, in his cross-examination as D.W.- 3, has stated in paragraph 29 that pursuant to acquisition of land to the extent of 1 ½ decimals, he received compensation to the extent of Rs.3,70,792/- and in his examination-in-chief he has stated that upon being threatened by the plaintiff, he transferred Rs.1,20,000/- in the year 2017 and given Rs.1,47,000/-through three cheques to the wife of the plaintiff in lieu of the land. However, no counter-claim has been filed by the defendant in the present case nor there has been any cross-examination of the wife of the plaintiff, who has been examined as P.W. 2.

Neither the award nor the proceeding before the Land Acquisition Officer has been exhibited before the learned Court. Admittedly, the award passed by the Land Acquisition Officer remained unchallenged. However, the same does not amount to adjudication of right between the plaintiff and the defendant, who, on the face of the sale deed, are co-owners of the property.

Admittedly, the defendant is also not claiming that the entire consideration amount was paid by him. Rather, he is claiming that the consideration amount was jointly paid by him and his father, partly by cheque and partly by cash and to substantiate this also, no document has been placed on record by the defendant and there is no bifurcation regarding cash amount and cheque amount on record.

In view of the aforesaid facts and circumstances, there is complete absence of cogent evidence with regard to contribution to the fund utilized for purchase of the property between the plaintiff and the defendant with respect to the sale deed involved in this case. Further the consideration amount as reflecting in the sale deed does not match with the consideration amount of sale deed as claimed by the defendant’s witness.

Section 45 of the Transfer of Property Act, 1882 clearly provides that where sale consideration is paid out of separate funds belonging to the purchasers, they are, in the absence of a contract to the contrary, entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. The section 45 also provides that in the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.

In view of Section 45 of the Transfer of Property Act, there is a presumption that both the purchasers (the plaintiff and the defendant) have equal interest in the property.

The learned trial court has failed to consider aforesaid aspects of the matter and was swayed away by the fact that the compensation arising out of the land acquisition to the extent of 1 ½ decimals out of the portion of land of the registered sale deed was credited exclusively in the name of the defendant. The fact remains that the defendant stated in his evidence-in-chief itself that in lieu of the land, he has given Rs.1,20,000/- in the year 2017 and Rs.1,47,000/- through three cheques to the wife of the plaintiff namely, Puja Devi but at the same time claimed that it was paid under coercion. However, there is no cross examination of Puja Devi (wife of the plaintiff) on this point.

This Court is also of the considered view that merely because the name of the defendant appeared in the sale deed prior to the name of the plaintiff, the same has no bearing in the matter, as the sale deed neither bifurcates the proportion of their contribution while purchasing the property nor it bifurcates their share with respect to the suit property.

So far as the construction over the suit property is concerned, the plaintiff and the defendant claimed that they have made constructions over the suit property and the learned court has recorded a finding that the defendant had made construction over the suit property.

However, from the perusal of the plaint, it has been mentioned by the plaintiff that both the plaintiff and the defendant constructed four shops on the first floor and residential house on the second floor and were presently running the shops and residing with their families. The paragraph 3 of the plaint has been answered in paragraph 13 of the written statement by stating that the entire construction has been done by the defendant and his father and no question arises to give any share in the suit property. Thus, even as per the written statement, it is not the case of the defendant that the entire construction was made exclusively by the defendant. Further, no details have been given either by the plaintiff or the defendant with respect to their investment for the purposes of construction over the suit property.

The plaintiff who was examined as P.W. 4, in his cross-examination, has stated in paragraphs 20, 21 and 22 that it was not correct to say that for the purposes of construction of house, the defendant, their father and other brothers had invested money. At the time when the construction was being made, he was residing in Bokaro, Sector 8, and it was not correct to say that he had gone to Mumbai in search of employment. He has further stated in his cross-examination that sometimes the money required for construction was paid by the plaintiff and sometimes by the defendant.

The defendant who was examined as D.W. 3, in his evidence in paragraph 10, has mentioned that he has paid the entire amount for the purposes of construction and in support of this he produced the bank statement showing the payment of Rs.10,000/- to Satnam Singh, Rs.1,15,000/- to Ganesh Mahto (Rs. 60,000/-+ Rs. 40,000/-+ Rs. 15,000/-), Rs.15,000/- to Santosh Kumar and Rs.10,000/- to Nitai Chandra Mahto. During cross-examination with respect to the aforesaid statement, this witness has stated that the bank statement only shows that these persons had received money, but no document with respect to such transaction has been prepared.

In view of the aforesaid facts and circumstances, this Court is of the view that merely because certain payment has been made to certain persons in the name of supply of sand, cement and other materials, without any further document to support that the payment was made for such purpose, like bill, receipt, etc., to which the defendant was also subjected to cross-examination wherein he stated that no such document was prepared, it cannot be said that the defendant has proved that the entire construction was made by spending money solely by the defendant. Moreover, there is nothing on record to show as to how much amount was spent for the purposes of construction of building over the suit property.

In the aforesaid facts and circumstances, the plaintiff and the defendant are entitled to ½ share each with respect to 2 ½ decimals of land which remained after acquisition of 1 ½ decimals of land in connection with the sale deed involved in the present case.

The points for determination are accordingly answered in favour of the plaintiff and against the defendant in the following manner: -

Consequently, the impugned judgment and decree dated 16.01.2024 (Decree signed on 25.01.2024) passed by the learned Civil Judge (Sr. Div)-I, Bokaro in Original Suit No.68 of 2021 dismissing the suit are set aside and the suit is decreed in favour of the plaintiff in the following terms: -

Office to prepare decree accordingly.

This First Appeal is accordingly allowed.

Pending interlocutory application, if any, is closed.

Let the records received from the learned court concerned be sent back forthwith.