Mr. Sunil Verma vs Mrs. Maria Lourdes Ester de Sa Gracias Flor alias Ester Gracias and Others

M. Reis J

Heard Shri R. G. Ramani, learned Counsel appearing for the Appellants. The above Appeal challenges the Judgments passed by the Courts below whereby the counter claim filed by the Appellants to direct the restoration of possession of the suit flat from the original Respondents, came to be dismissed.

Shri Ramani, learned Counsel appearing for the Appellants, has assailed the impugned Judgment essentially on two counts. It is his first contention -4- that as the suit filed by the original Respondent was dismissed for non-prosecution, the Courts below were not justified to refuse the counter claim filed by the Appellants. The learned Counsel has pointed out that in the records of the Society, the name of the Appellant figures and as such the question of refusing the relief sought by the Appellant would not arise. Learned Counsel further pointed out that the Courts below have erroenously come to the conclusion that the Appellant is barred u/s 4 of the Benami Transaction Prohibition Act 1988. The learned Counsel has taken me through the impugned Judgments and pointed out that the Courts below have wrongly appreciated the evidence on record and have erroneously dismissed the counter claim filed by the Appellant.

Having heard the learned Counsel and on perusal of the record, I find that the Courts below have dismissed the counter claim filed by the Appellant on two counts. The Courts below after analysing the evidence on record have come to the conclusion that the claim of the Appellant is that he had financed the purchase of the flat for the original Respondent no.1. The Courts below have after considering the definition of Benami Transaction on appreciation of evidence on record, have come to the conclusion that the alleged claim of the Appellant was on the basis of a Benami Transaction. These concurrent findings of facts cannot be re-appreciated by this Court in the present Second Appeal. It is pertinent to note that the Lower Appellate Court has also rejected the claim of the Appellant on the ground that the Agreement based on which the share certificates were transferred in favour of the Appellant was an Agreement executed in the year 1986. The Lower Appellate Court after appreciating the evidence on record has come to the conclusion that no consideration was given to the original Respondent no.1 who was the mother-in-law of the Appellant at the time of such transaction. Shri Ramani, learned Counsel appearing for the Appellant, was unable to point out any evidence on record to substantiate his contention that any consideration was paid at the time of such transaction. In any event, these questions of fact cannot be reassessed by this Court in a Second Appeal. Learned Counsel further pointed out that, in any event, the Appellant being the son in law of the original Respondent no.1, is entitled to the inheritance of the said Respondent no.1 who has now expired. Merely because the claim of the Appellant on the basis of the counter claim has been rejected, does not disentitle the Appellant to claim any right if he is so entitled by inheritance in accordance with law. Hence, in the facts and circumstances of the case, I find no merit in the above Second Appeal. Hence the same stands dismissed.