ORDER
N.D. Patnaik, J.
1. The respondent herein filed the suit O.S.No. 3342 of 1984 in the Court of the V Assistant Judge, City Civil Court, Hyderabad for possession of the suit property alleging that he is the owner of the property having purchased it under a registered sale deed dated 28-8-1982 (Ex.A-1) for a consideration of Rs. 10,000/-. The appellants/defendants who are the brothers of the respondent / plaintiff contended that it is the joint property since they have also contributed for the purchase of the property but the sale deed was taken in the name of the respondent/plaintiff, as such he is not the absolute owner of the property. The trial court accepted the contention of the appellants/defendants that the respondent/plaintiff is not the absolute owner of the property and dismissed the suit against which an appeal A.S.No. 163 of 1989 was preferred by the plaintiff in the Court of the Additional Chief Judge (Temporary), City Civil Court, Hyderabad. The appellate Court allowed the appeal holding that the appellants/defendants have failed to prove that they are the joint owners of the property. The appellate Court also held that the defendants are precluded from taking the plea of benami transaction in view of the Benami Transactions (Prohibition) Act, 1988. The Second Appeal is filed against the said judgment.
2. Two substantial questions of law are raised in this Second Appeal, viz.,
(1) that the Benami Transactions (Prohibition) Act does not bar the appellants/defendants from claiming the suit property as a jointfamily property, and
(2) since the appelllants/defendants and respondent/plaintiff have been living as joint family members, a presumption must be drawn that the suit property was purchased out of the earnings of the joint family property.
3. I will take up the second point first. Mr. Ugle, learned Counsel for the respondent/plaintiff contended that in the written statement, there is no plea that it is the joint family property. The plea of the appellants /defendants is that they have jointly purchased the property, holds no water. Therefore, he has pointed out that the question of drawing the presumption on the basis that they are the members of the joint family does not arise. Ex. A-l is the registered sale deed in the name of the respondent/plaintiff. The appellants /defendants are contending that they have contributed for the purchase of the property and that they are also the joint owners of the property, the learned Counsel for the respondent/plaintiff contended, that the appellate Court has rightly held that the burden of proof is on the defendants. The appellate Court considered the receipts filed by the appellants/defendants regarding the payments said to have been made by them which are marked as Exs.B-1 to B-7. The appellate Court did not place any reliance on the oral evidence and basing upon the sale deed Ex. A-l, it held that the respondent/plaintiff is the owner of the property and is therefore, entitled for possession of the same. Though the learned Counsel for the appellants/defendants Mr. C.P. Sarathy contended that the judgment of the appellate Court is vitiated by non-consideration of material evidence, I am unable to agree with that contention because the lower appellate Court considered the receipts filed by the appellants/defendants and did not place reliance on them and the lower appellate Court also held that no reliance. can be placed on the oral evidence too. So, it is not a case of non-consideration of evidence but it is a case where evidence was considered and rejected, and therefore, the judgment of the lower appellate Court is not vitiated on that ground.
4. The other ground on which the appellate Court rejected the claim of the appellants /defendants was that such a plea is against the provisions of the Benami Transactions (Prohibition) Act of 1988. Mr. Sarathy, learned Counsel for the appellants/defendants contends that their case is that the property was nominally purchased in the name of the respondent/plaintiff but in the written statement, there is no pleading that it was nominally purchased or that it was benami transaction. The plea is that it was purchased jointly by all the three brothers which plea the defendants failed to substantiate. So, there was no need to consider the question whether this plea is prohibited by the Benami Transactions (Prohibition) Act.
5. Though two substantial questions of law are raised at the time of admission, the learned Counsel for the appellants/defendants has raised an additional plea that since the appellants/defendants have denied the title of the respondent/plaintiff, the plaintiff should have sought for a declaration of title and without that the plaintiff’s suit is not maintainable. He has relied upon a decision of this Court reported in Sugali Venkata Naik v. Kondameedi Ramanna, 1991 (1) APLJ (SN) 6 in support of his contention. That was a case where a suit is filed for mere injunction without seeking relief of declaration wherein it was held that the plaintiff’s title is denied long before the title of the suit, a mere suit for injunction is not maintainable. But that decision is not helpful for the appellants/ I defendants because the present suit is filed for possession which is based upon I title. Therefore, that contention is also not accepted. But he has pointed out that the appellate Court has given a finding holding that the plaintiff is entitled for the declaration of title though there is no prayer in the plaint. Though ultimately, the appellate Court allowed the appeal and directed the defendants to vacate the premises, in para 20 of its judgment the appellate Court declared the title of the plaintiff even without a prayer in the plaint to that effect. Since there is no prayer for declaration of title, that finding regarding declaration of title is set aside.
6. C.M.P.N0. 4995 of 1993 is filed under Order 41 Rule 27 of the Civil Procedure Code to receive some documents as additional evidence. As held by the Division Bench of our High Court in Anisetti Bhagyavathi v. Andaluri Satyanarayana, no additional evidence can be received in a Second Appeal. Hence, the CMP is dismissed and the documents are ordered to be returned to the appellants.
7. Another CMP No. 11349 of 1994 is filed to return the document filed as additional evidence, and the document is ordered to be returned.
8. As there are no substantial questions of law involved in this Second Appeal, the Second appeal is dismissed. No costs.