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Judgment
The 12th claimant in LAOP No.150 of 1979 on the file of the Sub court, Krishnagiri, whose claim had been negatived by the two courts below,
is the appellant in this second appeal. The appeal arises out of a reference made by the Land Acquisition Officer u/s 30 of The Land Acquisition
Act.
Heard Mrs. Krishnaveni for the appellant and Mr.V.T. Gopalan, senior counsel appearing for Mr.C.R. Muralidharan for the respondents. At
the time of admission the following two substantial questions of law were framed by this Court:
(i) Whether Ex.B.l is a benami purchase in the name of Swamikannu for the benefit of Guruswamy Naidu?
(ii) Whether the finding that Respondents 1 to 11 have prescribed title by adverse possession is based on no evidence?
An extent of 52 cents out of 48.48 acres comprised in Survey No.614/2 in Mohanahalli Village was acquired among other lands. As there were
competing claims, the Land Acquisition Officer made a reference u/s 30 of the Land Acquisition Act. In all there were 12 claimants. Out of the 12
claimants, claimants 1 to 11 belong to the same family and they jointly claim the entire compensation while the 12th claimant Lourdu Mary had
claimed that she is entitled to l/4th share in the suit property acquired and claim l/4th of the compensation awarded by the Land Acquisition Officer.
Skeletal facts has to be referred to. Survey No.614/2 measuring 52 cents was acquired for the formation of bypass road. The said extent of 52
cents forms part of the larger extent of 48.48 acres. The said land is a Jambery. Under Ex.A.l Gurusamy Naidu, Proprietor of Rangavilas Bus
Company purchased l/4th undivided share in the name of his son A. Lakshmana Perumal, another undivided l/4th share in the name of his Cashier
Swamikannu Mudaliyar, under Ex.B.l., that Guruswamy Naidu has purchased the undivided l/4th share in the said land under Ex.A.2 and the
remaining l/4th share belonged to one Kuppan and others according to the claimants 1 to 11. The entire property was under occupation and
enjoyment of Guruswamy Naidu and his family members. The first claimant was examined as a witness to prove the exclusive possession by the
family members of Gurusamy Naidu. According to the claimants the purchase under Ex.B.1 was made by Guruswamy Naidu benami in the name
of his Cashier Swamikannu. It is to be pointed out neither Guruswamy Naidu nor his sons Lakshmana Perumal or China Swami Naidu nor the
Cashier Swamikannu are alive. Based upon Ex.B.l it was contended by the claimants 1 to 11 that l/4th undivided share was purchased by
Guruswamy Naidu, proprietor of the Bus Company benami in the name of Swamikannu, his cashier. The notice for the benami purchase according
to the claimants 1 to 11 being to enable Swamikannu to secure solvency and Swamikannu was not the real owner and he is only a name lender.
According to the claimants 1 to 11 the entire consideration was paid by deceased Guruswami Naidu and Swamikannu has no fund to purchase.
The contesting 12th claimant contended that the purchase by Swamikannu is not benami and that Swamikannu is the real owner and not a
benamidar and she is entitled to l/4th share in the compensation. It should not be lost sight that though the acquired land is only 52 cents, the parties
are fighting for the larger extent as the parties claim l/4th of the entire 48.48 acres in the same survey numbers. It is also stated during arguments
that a suit has been filed by the 12th claimant which is pending in respect of the remaining portion. However, this Court has to decide the plea of
benami based upon the evidence that had been let in before the courts below.
The learned counsel for the appellants relied upon the following decisions of this Court wherein the tests as to whether a purchase is benami or
not is laid. Mrs. Krishnaveni, the learned counsel for the appellant relied upon Doraiswami Pillai (died) and Others Vs. S.K. Munuswami Mudaliar
and Others, ; S. Subba Reddiar and others v. Bhagyalakshmi Ammal @ Guruvachi Ammal and another, 1996 (II) L.W 31; A.G. Krishnamoorthy
v. V. Kannammal and 6 others 1992 (I) L.W 131 in support of her contention that the purchase of l/4th undivided share on the facts of the present
case is not benami and that the 12th claimant is entitled to l/4th share in the compensation.
Per coutra Mr.V.T. Gopalan the learned counsel appearing for the claimants 1 to 11 pointed out that there is no quarrel with respect to the
proposition of law laid down in the said pronouncements which in turn follow the decision of the Supreme Court. It was contended that the findings
by the two courts below being concurrent this Court will not interfere with the findings and this Court has to confirm the findings that the purchase
under Ex.B1 is benami for Gurusamy Naidu, the then owner of Rangavilas Bus Company.
Ex.B.l, the original document of purchase of undivided l/4th share has been produced by the 12th Claimant. The main contest as to who had
paid the purchase money which is one of the prime tests to decide the issue of benami, the two courts have found that there is no evidence to show
that Guruswamy or his sons have paid the sale consideration for the purchase under Ex.B.l. The two courts below have taken note of the other
material factors despite the said material aspect and have elaborately considered the oral and documentary evidence, the possession and
enjoyment, the developments made by the claimants 1 to 11, on the land the sinking of well, securing electricity connection, putting up farm houses
and various other activities, which materials are not in dispute. The two courts below have concurrently found that the purchase under ExB.1 is
benami by Gurusamy the predecessor of claimants 1 to 11 and that these claimants 1 to 11 are entitled to the entire compensation. As already
pointed out there is no quarrel with respect to the tests laid down by the Apex Court as well as by this Court to decide as to whether the purchase
in question is a benami or not.
The learned counsel for the respondent relied upon Jaydayal Poddar (Deceased) through L.Rs. and Another Vs. Mst. Bibi Hazra and Others,
and pointed out that when both the parties have let in evidence in respect of their respective case of benami purchase or exclusive title of the
ostensible owner the burden of proof pales into insignificance, In that decision the Apex Court held thus:
It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the
person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly
prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the
intention of the party or parties concerned, and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But
such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the
acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after
considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his
favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of
fact, and for determining this question, an absolute formula or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the
probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances; (1) the source from which the purchase
money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4)
the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the
sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
The two courts have concurrently found that Ex.B.1 is benami and such a conclusion they have arrived at despite their taking note of the fact
that the original document of purchase Ex.B.1. was produced by the 12th claimant and no evidence has been let in to show sale consideration was
paid by Gurusamy Naidu or his sons for the purchase under Ex.B.l. The test as to possession which comes as the last criteria, the two courts
below have considered the evidence let in by either side and held that claimants 1 to 11 and then predecessor always remained in exclusive
possession and enjoyment and hence the purchase under Ex.B.l is benami and the deceased Swamikannu was only a name lender.
It is not the contention of the learned counsel for the appellant that the appreciation of evidence by the two courts below both oral and
documentary is either perverse or the two courts have failed to consider material portion of the evidence. According to the learned counsel for the
claimants 1 to 11 that no interference is called for in this second appeal merely on the question of burden of proof as the two courts below have
considered the entire evidence let in by either side and the plea of proof pales into insignificance and being a finding of fact this Court will not
interfere with the concurrent findings.
On the contention put-forward by the appellant that the burden of proof has been wrongly cast on the 12th claimant, the learned Senior
Counsel appearing for the respondents 1 to 11 placed reliance has been rightly placed on the decision of the Apex Court reported in Smt. Rebti
Devi v, Ram Dutt & anothers 1998 (1) L.W 346 and contended that when both sides have adduced evidence the question of burden of proof
pales into insignificance. The learned counsel relied upon the following passages:-
Learned counsel for the plaintiff-appellant (legal representative of Rebti Devi) submitted that the property was standing in the name of Rebti Devi
and that the defendants who had come up with a plea of benami had not discharged the onus that was on them. It was also contended, referring to
Benami Transactions (Prohibition) Act, 1988 that the plea of benami raised in defence was not open to the defendants and that in Nand Kishore
Mehra Vs. Sushil Mehra, , which is a three judge judgment, the principles decided in R. Rajagopal Reddy and Others (deceased by legal
representatives) Vs. Padmini Chandrasekharan (deceased by legal representatives), (which is also decision of three learned Judges) have been
doubted and hence the said Act is applicable to the facts of the case even though the defence to benami was raised long before 19.5.1988 when
the Act came into force. Learned counsel for the respondent contended that the finding of fact arrived at by the first appellate court was not rightly
interfered with by the High Court and that it did not call for any interference under Article 136, of the Constitution of India. It was also submitted
that R. Rajagopal Reddy''s case holds good and has not been doubted in Nand Kishore Mehra''s case. So far as the first submission of the
appellant''s counsel is concerned, we are of the view that it is true that the respondents defendants who have raised a defence of benami in their
written statement have to discharge the initial burden of proof and establish the plea of benami. Parties adduced oral and documentary evidence.
The lower Appellate court had considered the evidence adduced by both sides and arrived at a conclusion that the defendants had discharged the
said burden. When both sides had adduced evidence, the question of burden of proof pales into insignificance. The High Court was therefore right
in not interfering with the said finding. The said finding of fact cannot be canvassed in this Civil Appeal by the plaintiff or her legal representative.
The learned counsel relied upon the above pronouncements and also contended that this Court will not interfere with the concurrent findings.
There is force in the submission made by the learned Senior Counsel appearing for the contesting respondents/claimants 1 to 11.
Though the learned counsel for the appellant placed a typed set of papers containing the evidence of C.Ws. 1 and 2 as well as R.Ws. 1 and 2,
this Court finds that the two courts have considered the entire evidence in detail and their findings are supported by the evidence available on
record. No perversity in appreciation of evidence has been pointed out by the learned counsel for the appellant. In the absence of perversity this
Court will not be justified in re-appreciating the oral evidence and merely because another view is possible, this Court sitting in second appeal will
not be justified in re-appreciating the evidence. The court holds that the appreciation of evidence by the two courts below is fair and reasonable
and sitting in second appeal as held by the Apex Court, this Court will not be justified in interfering with the concurrent findings.
Before concluding it has to be pointed out that the possession of the property admittedly continued with Gurusamy Naidu and his family. It is
further admitted that Gurusamy Naidu and two others dug wells, installed electric motors and pumpset. Swamikannu the ostensible owner as seen
from Ex.B1 has done nothing nor he had taken part in digging of any of the wells nor was he ever in possession or exercised any right of ownership
at any point of time.
C.W.1 has deposed that Guruswamy Naidu and his two sons dug four wells in the property and erected motor pumpsets and they have
obtained electric service connection as well in their names. Guniswamy Naidu and his sons have put up farm houses which is of permanent nature.
Putting up of permanent structure had not been objected either by Swamikannu during his life time or subsequently by the 12th claimant, his wife or
their sons.
Neither the contesting 12th claimant nor her husband nor her sons have ever raised their little finger when Guniswamy Naidu or his two sons
developed the land, dug wells, erected electric motors and pumpsets, secured electricity connections, put up farm houses and other construction of
permanent nature in the total extent of 48.48 acres. That apart in a portion of the entire extent of 48.48 acres the claimants 1 to 11 have buried the
said Guruswami Naidu, his son Lakshmana Perumal and Chinnaswamy Naidu besides other members of late Gurusamy Naidu''s family and for
such a burial neither Swamikannu nor his heirs have ever raised any objections. The above activities are not fugitive activities, but activities of
permanent nature to the knowledge of Swamikannu and also his family members. But at no point of time Swamikannu has asserted his undivided
interest in the entirety of 48.48 acres.
Another aspect which the courts below considered is being that Swamikannu has executed a Will dated 17.1.1965 bequeathing all his
properties. But the Will had not been produced by the contesting 12th claimant to prove that the suit property has been dealt with by Swamikannu
in the said Will. In other words it is sought to be contended with certain amount of force that Swamikannu had never treated the purchase under
Ex.B.l as his own and his heirs were never been in possession of the property. The courts below have drawn adverse inference against 12th
claimant for not producing the last Will and testament of Swamikannu.
The aspect of exclusive possession of the entire 48.48 acres have been taken into consideration and the courts have found that Guruswami
Naidu and his two sons continued in exclusive possession as seen from Exs. A.5, A.6, A.9, and A.10, to A.13. Further the entire extent of 48.48
acres have been divided among Guniswamy Naidu and his sons as seen from Ex.A.3 dated 9.6.1966. The properties allotted in the partition
Ex.A.3 had been managed by the family members of Guniswamy Naidu after partition under Ex.A.4.
On a consideration of the entire evidence, the conduct of parties, the possession, the various acts of dealing with the property by Guruswamy
Naidu, the two sons and other family members, the two courts have held that Swamikannu had never exercised any right over any portion of the
property including the property acquired and Ex.B.l is a benami purchase. The two courts have accepted the motive for the purchase under Ex.B1
and also were satisfied with the explanation offered by the claimants 1 to 11 with respect to the production of original deed Ex.B.l. Further the
lower appellate court found that Swamikannu has no wherewithal to purchase the I/4th undivided share in the entire 48.48 acres under Ex.B.l
dated 3.3.1948 as he was only an employee as Cashier in Rangavilas Bus Service on a salary starting from Rs.30 during the year 1936 which
increased gradually in course of subsequent two decades.
Though Swamikannu was employed in Rangavilas Bus Service belonging to Guruswamy Naidu and his sons, admittedly there were lorry
permits which stood in the name of Swamikannu benami for the Proprietor of Rangavilas Bus Company, Guruswami Naidu and others. It is
obvious that Swamikannu was considered to be a man of confidence by Guruswamy Naidu and his sons. It is to be pointed out that the admission
of the witnesses examined on behalf of the 12th claimant is also fatal to her case. They have admitted that Swamikannu was never in possession
and his successor also was never in possession. They were not aware whether there were wells, whether there are pumpsets, whether the land is
under cultivation or not and they also admitted that for more than 12 years no income had been shared between Guruswamy and others and even
after the death of Swamikannu no income had been shared by Guruswami Naidu with the 12th claimant.
The above material evidence had been considered by the two courts below and they have come to the right conclusion that the purchase of
l/4th undivided share in 48.48 acres under Ex.B.l is a benami and all the relevant materials had been taken into consideration by the two courts
below in this respect I do not find any perversity in their conclusion nor it could be said that the conclusions are not supported by evidence nor this
Court could interfere sitting in second appeal. No case has been made out for interference in this second appeal.
The first question of law framed by this court has to be answered against the appellant/claimant No.12 as the two courts below have
concurrently found that Ex.B.l is a benami purchase in the name of deceased Swamikannu for the benefit of Guruswamy Naidu and his family
members, who was the employer of the deceased Swamikannu.
The second question of law with respect to the prescription of title by adverse possession will not arise in the light of finding that Ex.B1 is a
benami purchase though the trial court has given a finding it is not necessary to go into the second question as the real owners always continued in
possession and Swamikannu was never in possession and he had never exercised any right 6f ownership over the property.
The two questions are answered as above. The Second Appeal fails and it is dismissed, but without costs.