JUDGMENT
A.K. Mitra, J.
1. This second appeal has been preferred by the plaintiff as appellant challenging the judgment dated 9.6.1992 and the decree dated 20.6.1992 passed by the learned District Judge, Malda in O.C. Appeal No. 2 of 1991 affirming the judgment and decree dated 30.11.1990 passed by the learned Munsif, Malda in O.C. Suit No. 200 of 1986.
2. This appeal was heard under Order No. 41 Rule 11 of the Code of Civil Procedure on 11.1.1993 by the Hon’ble Division Bench of this High Court and the Hon’ble Division Bench on that passed an order that this appeal will be heard.
3. This appeal arises out of a suit praying inter alia for declaration of title, stay of ex parte decree passed in O.C. No. 159/84, the said decree being obtained in collusion by practising fraud. The plaintiff also prayed for permanent injunction in respect of the suit land. The case as has been made out in the plaint or as transpires that one Sudhir Kr. Majumder and Bimal Kr. Majumder were the joint owners in respect of 097/14th decimal of land in Mouza: Kutum Purbari under Police Station: English Bazar. Both the brothers partitioned the property through a registered deed of partition. By virtue of the said partition Bimal Kr. Majumder became the owner of 0489/18th decimals and out of the said land said Bimal Kr. Majumder sold 3 cottahs of land to the plaintiff which is the suit land herein.
4. The plaintiff used to reside previously at Jodupur under P.S. Kaliachak and she was a Hindu woman. The plaintiffs father was a gold dealer. Plaintiff fell in love with the defendant and fled away with the defendant after taking 20/22 bharis of gold and Rs. 5000-6000/- cash from her father’s house. Thereafter, the plaintiff married the defendant under Special Marriage Act on 20.7.1976. Plaintiff also converted herself as Muslim and known as Zahida Hossain. Thereafter, plaintiff purchased the suit property by four registered deeds for a consideration of Rs. 18,000/-. Thereafter, she constructed a dwelling house in and over the said land. Two sons were born out of the said wedlock of the plaintiff and the defendant. It is alleged by the plaintiff that after the birth of the youngest son the defendant started physical and mental torture upon the plaintiff. It is further alleged by the plaintiff that the defendant fell in love with other woman and he left the suit house. The defendant started residing in a rented house and he took it on rent from Kashir Mistri @ Kajir and he used to stay there with other woman. Thereafter, the defendant caused pressure upon the plaintiff to execute a deed in favour of the defendant in respect of the suit property but the plaintiff refused to do so. The plaintiff also stated that at the end of September 1984 the defendant along with his persons came to the suit house and threatened the plaintiff of dire consequences. Thereafter a village salisi was held regarding the dispute between the plaintiff and the defendant and in presence of village persons defendant executed an agreement in favour of the plaintiff on 30.9.1984 in respect of the suit property. It has been further alleged by the plaintiff that she sold 0160 decimal of land by registered sale deed on 4.9.1981 in favour of Md. Eliash and the defendant was the identifier in that deed. It is also alleged by the plaintiff that the defendant committed adultery and is living in a separate house. Thereafter, on 4.8.1986 the defendant alongwith some antisocial persons came to the suit house and disclosed that he obtained and ex parte decree in respect of the suit property and he is also trying to evict the plaintiff from the suit house. Thereafter the plaintiff met with her advocate and collected certified copies of O.C. No. 159/84. It is alleged by the plaintiff that the defendant obtained an ex parte decree in O.C. No. 159/84 in collusion with the postal peon and process server of the Court. No notice was served upon the plaintiff in respect of O.C. Suit No. 159/84. It is claimed by the plaintiff that neither the postal peon nor the process-server tendered to here any summons or registered letter in respect of O.C. No. 159/ 84. It is further alleged by the plaintiff that the defendant stole rent receipts, stamp receipt from the house of the plaintiff. It is further stated by the plaintiff that she is not a Benamdar of defendant. She is the actual purchaser and the owner of the suit property and as such she has filed the instant suit.
5. The defendant contested the suit on filing a Written Statement and the defence case as it transpires from the W.S. that the defendant purchased the suit land in name of plaintiff. He paid the consideration money of Rs. 1800/- in respect of the suit property from his own fund. He further stated that the plaintiff did not purchase the suit property as she had no financial capacity. It is also stated by the defendant that plaintiffs father was not a dealer of gold. It is stated by the defendant that he never used to live with other woman and he is not questionable person. He never committed any act of force upon the plaintiff for the purpose of execution of any deed in his favour. The defendant further stated that he never executed any agreement in the village salisi in favour of the plaintiff in respect of the suit property. It is further claimed by the defendant that notice and summons were duly served upon the plaintiff in O.C. No. 159/84. He never committed any fraud upon the plaintiff for obtaining an ex parte decree in O.C. No. 159/84. It is further stated by the defendant that after marriage the plaintiff and he used to live in a rented house, thereafter, he purchased the suit property in the name of the plaintiff and constructed house thereon. Thereafter, the defendant resisted the illegal relation of plaintiff and Latif Mia and as such their relation as husband and wife became bitter and thereafter, the plaintiff threatened the defendant to sell the suit property and as such the defendant filed a suit being O.C. No. 159/84 against the plaintiff. As to maintainability of the suit, Cause of action, point of limitation have also taken by the defendant. The defendant accordingly prayed for dismissal of the suit with costs.
On the above pleadings the learned trial Judge framed the following Issues:
1. Is the suit maintainable in its present form?
2. Is the suit barred by limitation?
3. Is the suit not properly stamped?
4. was the decree in O.C. No. 159/84 fraudulently obtained and void?
5. Was this summons served upon the plaintiff in O.C. No. 159/ 84?
6. Was the suit property purchased by the defendant, in benami of the plaintiff?
7. Is the plaintiff satisfied entitled to get a decree as prayed for?
8. To what other relief the plaintiff is entitled?
6. The learned trial Judge after hearing the parties dismissed the suit on contest against the plaintiff. The plaintiff preferred appeal against the said judgment and decree passed by the learned trial Judge O.C. Appeal No. 2/91 and the said appeal was also dismissed on contest and hence this second appeal.
7. Before taking up the appeal for the purpose of hearing it is to be seen whether there is any substantial question(s) of law which is or are to be decided in this second appeal. After hearing the learned counsel for the Appellant and the learned counsel for the respondent and on perusal of the records it appears that the following are the substantial questions of law which need be decided in this second appeal.
1. Whether the judgment of the trial Court below as well as the Appellate Court below has been vitiated because of failure to apply proper test of law.
2. Whether the Court below rightly put the onus to prove the transaction as benami upon the plaintiff or not.
3. Whether the case of the defendant is hit by Section 281A of the Income Tax Act.
4. Whether the earlier judgment is vitiated on account of fraud regarding service.
5. Whether the judgment of both the Courts below are perverse or not.
8. The learned counsel for the appellant submitted that both the Courts below went on wrong when deciding that the suit property purchased in benami and the wife appellant herein is the benamdar of the defendant and wrong application or wrong tests of law have been made by the learned Courts below when observing that the plaintiff could not establish that the transaction that is the purchase of the suit property is not a benami purchase and on the other hand the respondent proved that he has invested the money in purchasing the land and in making construction over there. The learned Courts below did not properly construe the provisions of the Benami Transactions (Prohibition) Act, 1988. The learned counsel for the appellant Mr. Roy Chowdhury further submitted that the trial Court wrongly shifted the onus of the plaintiff to prove that the purchase of the suit property is not a benami purchase. The learned counsel further submitted that both the Courts below failed to construe as to what are the real tests for deciding a transaction whether it is benami or not. The learned counsel Mr. Roy Chowdhury also submitted that the claim of the defendant is hit by the provisions of Section 281A of the Income Tax Act. The learned counsel for the appellant also submitted that the trial Court should have considered that the earlier judgment is vitiated on account of fraud regarding service of notice. In support of his contentions the learned counsel for the appellant Mr. Roy Chowdhury relied on the decision reported in 1994(4) SCC 243 (Pawn Kr. Gupta v. Rochiram Nagdeo). Relying on this judgment the learned counsel submitted that the earlier judgment does not operate as res judicata in the instant case inasmuch as same issues were not decided in the earlier suit and only an incidental question to reach a decision does not operate as res judicata. The learned counsel laid stress on paragraphs 16, 22, 23 and 24 of this judgment which are quoted hereinbelow:
“16. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure prohibits the Court from trying an issue which “has been directly and substantially in issue in a former suit between the same parties”, and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to each such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed. The decree was not in act against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues.
22. Alternatively, assuming that the finding in the first suit would operate as res judicata, the contention of the respondent that Ext. P-11 void transaction being hit by Section 3(1) of the Benami Act cannot be considered. The trial Court and the first Appellate Court concurrently found that it is not a benami transaction but the High Court interfered with the concurrent finding and held that the transaction is void. Learned Judge of the High Court observed that the finding of the first Appellate Court is contrary to the pleadings of the plaintiff and that the burden of proof had been wrongly placed on the defendant, and that the conclusion was based on considerations which are not germane to the issue. According to the learned single Judge.
“it is clear from Section 106 of the Evidence Act that it was for the respondent to prove that the money was advanced by him because he had the special knowledge of the transaction between him and his vendor.”
The High Court held that the appellant failed to prove that the suit building was purchased by him on payment of sale price.
23. All the above three premises adverted to by the High Court are unsupportable. The clear pleading of the plaintiff is that he purchased the suit property as per Ext. P-11 sale deed. The burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P-11 sale deed contains the recital that the sale consideration was paid by the plaintiff to Narain Prasad, the transferror. Why should there be a further burden of proof to substantiate that the recitals in the document are true? The party who wants to prove that the recitals are untrue must bear the burden to prove it.
24. In this context reference to sections 91 and 92 of the Evidence Act, 1872 will be useful. As per the former, in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such matter except the document itself. Section 92 forbids admission of any evidence for the purpose of contradicting, varying, adding to, or subtracting from the terms of such a document. One of the exceptions to the said rule is that any fact which would invalidate the instrument can be proved by adducing other evidence.”
9. The learned counsel submitted that in this judgment the Hon’ble Apex Court clearly observed that the burden of proof cannot be cast on the plaintiff to prove that the transaction was not consistent with the apparent tenor of the sale deed. In that view of the matter the learned Courts below wrongly placed the onus to prove that the transaction is not a benami transaction on the plaintiff. The learned counsel then relied on a decision (Kanakarathanammal v. V.S. Loganatha Mudaliar and Anr.). The learned counsel strongly relied on the observation of the Hon’ble Apex Court made in paragraph 8 of this judgment which is quoted hereinbelow:
“8. It is true that the actual management of the property was done by the appellant’s father; but that would inevitably be so having regard to the fact that in ordinary Hindu families, the property exclusively to a female member would also be normally managed by the Manager of the family; so that the fact the appellant’s mother did not take actual part in the management of the property would not materially affect the appellant’s case that the property belonged to her mother. The rent was paid by the tenants and accepted by the appellant’s father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly appreciate the effect of the several admissions made by the appellant’s father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellant’s mother in her own name though the consideration which was paid by her for the said transaction had been received by her from husband.”
10. Relying on this judgment the learned counsel submitted that even if the wife was the owner of the properties possession may continue with the husband as a matter of convenience and that does not prove the transaction or the purchase of the suit land or construction of the building over there as benami purchase or benami construction.
11. The learned counsel then relied on the judgment [Vidyadhar v. Usman Gani). The learned counsel laid stress on the observation of the Hon’ble Apex Court in paragraphs 6 and 7 of this judgment which are quoted hereinbelow:
“6. The contesting parties produced their oral and documentary evidence. After examining the evidence, the trial Court held that Laxman Govind Mungi had purchased the suit land benami in the name of his wife Jankibai and it was ancestral property of the joint family consisting of the plaintiffs 1 to 3 and defendants 2 and 3. The findings on the issue about legal necessity and benefit of the estate and other issues were against the first defendant. In the result, the trial Court decreed the suit of the plaintiffs for 17/24 shares in the suit land. Feeling aggrieved with the judgment and decree of the trial Court, the first defendant filed an appeal in the Bombay High Court. The High Court has reversed the judgment and decree of the trial Court and has dismissed the suit of the plaintiffs. The High Court has held that Laxman Govind Mundi did not purchase the suit land and that Jankibai was the real owner of it. The High Court did not accept the plaintiffs plea of the sale being benami. The High Court also held that the sale was for legal necessity and for the benefit of the estate. Hence this appeal by the plaintiffs.
7. The vital issue in this appeal is as to whether Jankibai was the real purchaser the suit land or a mere benamdar of her husband. Laxman Govind Mungi (hereinafter called Laxman). For this purpose it is necessary to ascertain whether Laxman had paid the sale consideration mentioned in the sale deed of 1909 to Smt. Satyabhamabai with the intention of becoming the owner of the suit land. Plaintiffs could not give any direct evidence about this matter. Laxman, Jankibai, Annaji and Satyabhamabai were the persons connected with the sale deed. They had died before the plaintiffs commenced their suit. Dattatraya was examined by them as a witness. He has stated that the land was purchased by money provided for by his father, Laxman. He has also said that his mother had no funds to purchase the land and that she came from a poor family. He has tried to show that his father was in affluent circumstances and could purchase the land from his own funds. But the Courts below have not relied on his evidence and we think rightly. He is a partisan witness. He is highly interested in the success of the suit. More, he speaks with two voices. In his statement in. the tenancy case No. 37 of 1956 (in which the first defendant was also a party) he had stated:
“………the land bearing S. No. 954 is my land……….the said land was purchased by my brother and after her death myself and my brother are the owners.”
Contrary to this statement, he has now deposed that the land was purchased by his father. The plaintiffs also examined Ram Chandra, son of Annaji. But he has only stated that his father used to do forest business. So his evidence is not at all helpful.”
12. The learned counsel submitted that the trial Court wrongly came to the finding that since the appellant/plaintiff was an ordinary employee property cannot be purchased by her father’s fund when it has been specifically submitted by the plaintiff that her father was an affluent person and actually her father gave her the money to purchase the land. The learned counsel for the appellant submitted that the trial Court proceeded on wrong footing and merely acted on hypothesis that by coming to a finding that when the plaintiff appellant is a poor worker or employee she cannot purchase any property by paying Rs. 18000/-. The learned counsel submitted that entire judgment of the learned trial Court is vitiated on wrong applications of law and on wrong test of the legal provisions.
13. The learned counsel for the appellant Mr. Roy Chowdhury then relied on a judgment (Budhwanti and Anr. v. Gulab Chand Prasad). The learned counsel laid stress on paragraph 11 of this judgment which is quoted hereinbelow:
“11. Coming now to the ground of eviction based on the bona fide requirement of the respondents, Mr. Javali argued that the bona fides of the claim is not established either by the pleadings or the evidence and hence the trial Court and the High Court were in error in sustaining the said ground of eviction. It was pointed out by the counsel that in the plaint there is only a casual statement about the requirement of the shop by the landlord and in the evidence it was not made clear whether the shop was required for expansion of the existing business or for starting a new business venture for the benefit of the younger members of the joint family. The trial Court has discussed the case of bona fide requirement in para 14 of its judgment and has held that the landlord is bona fide in need of the shop to engage two members of the joint family in business. The Appellate Judge has reversed the finding of the trial Court on four grounds, viz. that the tenants were refugees from West Pakistan and had no shop of their own in the town of Gaya, that from the point of comparative hardship it would be the tenants who would suffer more than the landlord by an adverse decision, that the shop occupied by the appellants is only a small portion in a massive building in the occupation of the landlord and that the landlord’s requirement of the building was more attributable to a desire to recover possession rather than on account of any genuine need for it. The High Court has pointed out that the Appellate Judge had completely misdirected himself in his approach to the question because of erroneous assumptions of facts as well as law. Admittedly, the tenancy had commenced in 1932 which was long prior to the partition in 1947 and hence there can be no question of the tenant being a refugee from West Pakistan. Likewise, the application of the test of comparative hardship between the landlord and the tenant was an extraneous test because no such test has been prescribed by the Act for going into the reckoning. Then again it was noticed that without any evidence or materials the Appellate Judge has assumed that the main building in the occupation of the joint family is. a massive building and that the leased portion constitutes only a negligible area. Likewise the Appellate Judge had no materials to hold that the landlord’s requirement of the building was only born out of desire and not on account of any genuine need. Since the Appellate Judge had rendered his findings on the question of bona fide requirement of the shop by the landlord on baseless assumptions and wrong principles of law, the High Court was justified in setting aside the finding of the Appellate Judge even though it was factual in character. It is true in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then High Court will be within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding. Mr. Javali tried to canvass that the Appellate Judge had rendered his finding mainly with reference to the pleadings and the evidence and his incidental references to other factors and circumstances were only to reinforce his conclusion and as such his finding does not suffer from any infirmity or error. We are not perused by this argument because it cannot be predicted as to how far the Appellate Judge’s conclusion was influenced by the mistaken tests applied by him to determine the issue.”
14. The learned counsel submitted that where the finding of the trial Court is based on wrong test of law and is based on conjectures then the High Court in a second appeal is permitted to interfere in the said judgment of the trial Court as well as the Appellate Court below. The learned counsel for the appellant, Mr. Roy Chowdhury, further submitted that in this case also the learned trial Judge merely proceeded on the conjectures and the first Appellate Court below being the last Court of fact wrongly interpreted the legal provisions and without scrutinizing the judgment of the learned trial Judge wrongly relied on the findings of the trial Court which merely was based on surmise and conjectures.
15. The learned counsel for the appellant then relied on the decision (K.K. Das, Receiver v. Sm. Amina Khatoon Bibi and Anr.). The learned counsel submitted that in this judgment this High Court (Division Bench) relying on Section 51 of the Transfer of Property Act observed that where a husband with his costs constructs a building on his wife’s land knowing it to be his wife’s, the later is entitled to the building. The learned counsel relied on the observations made in this judgment to the extent as indicated hereinbelow:
“We have now to consider the legal position. The land belonged to the respondent but the building was erected at the cots of defendant 3 who knew at the time that the land was not his but his wife’s. Defendant 3 therefore does not come within the third proposition laid down in 6 WR 228-a proposition which has been approved by the Judicial Committee of the Privy Council in 56 IA 259. He, defendant 3, could not have claimed compensation from respondent as there was no equity in his favour. He spent money on the structures knowing that the land was not his. The question is whether he has the right to remove the structures. If he has that right, that right must have for its basis his ownership in the structures. If he had spent in the bona fide belief that he was the owner of the land or had the right to build he could have claimed compensation or the right to remove the structures. That is what has been laid down all along since 6 WR 228, and the principle entitling a person to compensation has now been given statutory recognition in the case of transferees (section 51, Transfer of Property Act). In the said case 6 WR 228, three propositions are laid down: (1) Buildings and other such improvements do not by the mere accident of their attachment to the soil became the property of the owner of the soil. (2) If he who constructs the building or makes the improvement on another’s land is a mere trespasser he cannot claim compensation from the owner of the soil nor has he the right to remove them. (3) If however he was in possession of the land under a bona fide title or claim of title he can either remove them or obtain compensation for the value of the building or improvement if it is allowed to remain for the benefit of the owner of the soil, the option of retaining the building, etc., or of allowing removal remaining with the latter.”
16. In 56 IA 259 the first and third propositions were approved but opinion was reserved by the Judicial Committee on the second proposition. The Indian decisions however lay down the proposition that in the case of wanton trespass the trespasser has no right to claim either compensation or the right to the materials. In the case before us in view of the relationship between defendant 3 and the respondent we cannot say that defendant 3 was a trespasser on the land within the meaning of the proposition so laid down in the cases.
17. The decision in 6 WR 228 is that the building does not become the property of the owner of the soil by the mere accident of attachment. This proposition lends support to the view that if there be something more, the building would become the property of the owner of the soil. The fact that the husband constructed the building on his wife’s land knowing it to be his wife’s is in our judgment such an additional and special circumstances which takes the case out of the first general proposition laid down by that Full Bench. The husband never intends in such a case to reserve any right in the structures. He intends to make the habitation, both of himself and of his wife, more comfortable. In (1865)1 HL 129, a case between landlord and tenant. Lord Cranworth L.C., laid down a principle which can be dissected into two broad propositions and from those two propositions he deducted a third proposition. The first propositions are: (i) if a stranger builds supposing the land to be his own and the real owner perceiving the mistake of the former knows at the time of the expenditure that the land belongs to him and stands by, the Court of equity will not allow the latter to insist on his legal title, (ii) if however the stranger builds upon the land of another knowing it to be the latter’s there is no principle of equity which will prevent the latter from claiming his land with the benefit of all the expenditure made on it.”
18. The learned counsel then relied on the decision reported in 1983(1) CLJ page 163 (Sudhirindra Coomar v. Smt. Manmohini Coomar). The learned counsel relied on paragraph 6 of this judgment delivered by the Hon’ble Division Bench of this High Court which is quoted hereinbelow:
“6. Next we proceed to consider the scope and effect of Section 281A of the Income Tax Act, Section 281A(1) provides as follows:
“No suit to enforce any right in respect of any property held benami whether against the person in whose name the property is held or against any other person, shall be instituted in any Court by or on behalf of a person (hereafter in this Section referred to as the claimant) claiming to be the real owner of such property unless
(a) the income, if any, from such property has been disclosed in any return of the income furnished by the claimant under this Act, or
(b) such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth Tax Act, 1957 (XXVII of 1957), or
(c) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income Tax Officer.”
19. Relying on this judgment Mr. Roy Chowdhury submitted that the claim of the respondent is clearly hit by the provisions of Section 281A of the Income Tax Act and the respondent cannot make any escape out of these provisions. Lastly, the learned counsel for the appellant submitted that even if there is concurrent finding by the two Courts below the High Court can interfere in certain circumstances and the learned counsel Mr. Roy Chowdhury submitted and relied on judgment of the Hon’ble Apex Court (Hon’ble Three Judges’ Bench) reported in 2001(3) SCC page 79 [Santosh Hazari v. Purushottam Tiwari). The learned counsel submitted that this judgment of the Hon’ble Apex Court makes the position clear as to what are the questions of law which can be termed as substantial and where even if there is concurrent finding of both the Courts below the High Court can interfere. The learned counsel laid stress on the observations made in paragraphs 14, 15 and 16 of this judgment which are quoted hereinbelow:
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial” a question of law must be debatable not previously settled by law of the land or a binding precedent, and must have a material hearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge for from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first Appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court. The task of an Appellate Court affirming the findings of the trial Court is an easier one. The Appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (see Girijanandini Devi v. Bijendra Narain Choudhury). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage by the Appellate Court for shirking the duty cast on it. While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, he Appellate Court is entitled to interfere with the finding of fact. (see Madhusudan Das v. Narayanibai). The rule is-and it is nothing more than rule of practice-when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact. (see Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh). Secondly, while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the Appellate Court had discharged the duty expected of it. We need only remind the first Appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first Appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first Appellate Court is also a final Court of law in he sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first Appellate Court even on questions of law unless such question of law be a substantial one.
16. Reverting to the facts of the facts of the case at hand, prima facie, we find that the first Appellate Court did not discharge the duty cast on it as a Court of first appeal. The High Court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by Sub-section (3) of Section 100 of the Code, on account of the substantial question of law involved in the appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily on opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the High Court registry or the Court and yet the appellant had persisted in his default. That was not done. In our opinion, the following substantial question of law does arise as involved in the case and worth being heard by the High Court:
Whether on the pleadings and the material brought on record by the defendant, the first Appellate Court was right in holding the ease of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial Court?”
20. The learned counsel Mr. Roy Chowdhury submitted that the service of notice in the earlier suit could not be proved and that suit itself appears to be based on fraudulent pleadings and the judgment delivered and the decree passed in the earlier suit is totally vitiated, and the Courts below wrongly relied on (he judgment and decree passed in the earlier suit. Learned counsel further submitted that on consideration of all the facts and evidence on record and the findings of both the Courts below it will appear that the judgment and decree passed by both the Courts below suffer from illegality and are liable to be set aside.
21. The learned counsel for the respondent Mr. Sahu submitted that he findings of both the Courts below are concurrent and the Appellate Court below concurred with the finding of the learned trial Judge on consideration and/or in scrutiny of the judgment and decree passed by the learned trial Judge and the second Appellate Court should not interfere in the matter. The learned counsel submitted that the plea of non-service of notice had been belied by the facts and evidence of process server whereby it had been revealed that the plaintiff refused to accept the summons and the same was handed over to her and she also refused to acknowledge the registered service.
22. The learned counsel for the respondents also submitted that no fraud was practised and ex parte decree in the earlier suit was rightly passed. The learned counsel Mr. Sahu in this regard relied on a judgment reported in AIR 1997 SC 919 (Mst. B. Devi v. P. Pd. Yadav). Mr. Sahu submitted that in identical circumstances in this judgment the Hon’ble Apex Court observed that ex parte decree was rightly passed. The relevant paragraph being paragraph 2 of this judgment of the Hon’ble Supreme Court is quoted hereinbelow:
“2. The respondent had filed a suit for specific performance on the foot of an agreement alleged to have been executed by the petitioner. The petitioner was served notice but since she did not contest the suit, ex parte decree was granted. Subsequently, the petitioner filed an application under Order IX, Rule 13, Code of Civil Procedure seeking setting aside of the ex parte decree. Therein, her specific case was that she was not residing at Garhia village and, therefore, the notice could no be deemed to have been served on her. The endorsement is not correct. The question was gone into by the Courts below after recording the evidence of one Laxman Yadav, Mahendra Yadav and process server. It is their case that on January 15, 1985 when the summons were handed over to Mst. Bhabia Devi and when she was acquainted with the facts, she refused to sign or put thumb impression on the notice. When the process server had gone to serve it on her personally on April 2, 1984 to the village and also on April 9, 1984 when the registered card acknowledgment was sent, she refused to acknowledge it. Under those circumstances, the Courts below have concluded and the High Court has recorded as under:
“Apart from the aforementioned two modes for service of notice, as I have already noticed, there was yet another mode by way of Gazette publication. An attempt has been made on behalf of the appellant to say that she being illiterate lady could not learn about the Gazette publication.”
23. The learned counsel submitted that the plaintiffs denial of service has been found incorrect also from her own admission and conduct. Mr. Sahu relied on a decision of the Hon’ble Apex Court (P.V. Rao v. C.V. Raman) and he led stress on paragraphs 9 and 10 of the Hon’ble Apex Court judgment. For the purpose of convenience the said two paragraphs being 9 and 10 of this judgment of the Hon’ble Apex Court are quoted hereinbelow:
“9. In Nirmalabala Devi v. Provat Kumar Basu (1948) 52 Cat WN 659 it was held, by the Calcutta High Court, that a letter sent by registered post, with the endorsement “refused” on the cover could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the letter had come back with the endorsement “refused” could not raise a presumption of failure to serve. On the other hand the presumption under Section 114 of the Indian Evidence Act would be that in the ordinary course of business, it was received by the addressee and actually refused by him. This is also a correct statement of the law.
The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us.”
24. Mr. Sahu further submitted that the present suit is barred by res judicata and it is not maintainable. Mr. Sahu in this regard relied on a decision (State of West Bengal v. Hemant Kr. Bhattacharjee and Ors.). Mr. Sahu led stress on the observations of the Hon’ble Apex Court made in paragraph 14 of this judgment and the said paragraph 14 for the sake of convenience is quoted hereinbelow:
“14. Before proceeding with these arguments in detail, we can dispose of second contention very shortly. This argument proceeds on a fundamental misconception, as it seeks to equate an incorrect decision with a decision rendered without jurisdiction. A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher Tribunals or other procedure like review which the law provides. The learned Judges of the High Court who rendered the decision on 4.4.1952 had ample jurisdiction to decide the case and the fact that their decision was on the merits erroneous as seen from the later judgment of this Court, does not render it any the less final and binding between the parties before the Court. There is, thus, no substance in this contention. The decision of the High Court dated 4.4.1952 bound the parties and its legal effect remained the same whether the reasons for the decision be sound or not.”
25. Mr. Sahu then submitted that the learned trial Judge dealt with Issue No. 6 and in so far as benami is concerned the learned Trial Judge made a detailed discussion. The learned Appellate Court below in so far as the findings in respect of benami reassessed the entire evidence adduced by the learned trial Judge and came to the same finding that there was no evidence on record that the plaintiff left house of her father in July 1976 with gold ornaments or money, if any. She as well as her mother, PW 6 in their evidence categorically stated that FIR was lodged against defendant taking away the plaintiff from the house of her father. It was not the case that she had saved some money from her earnings which she was utilized for purchasing the suit property. The learned Appellate Court below considered the evidence of the mother of the plaintiff No. 1 and the learned Appellate Court below ultimately held that the plaintiff has failed, to prove that for purchasing the suit property she had own money. Mr. Sahu, the learned counsel, submitted that the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction. The defendant respondent asserted that he is the real owner but failed to prove the same and that was the submission advanced by the learned counsel for the appellant/ plaintiff. In reply to such submission the contention of Mr. Sahu. learned counsel, for the respondent is that the real test is the source from which the consideration came. Taking into consideration for the factual aspect of the case following decision has been referred to by Mr. Sahu in [Gangadara Ayyar and Ors. v. Subramania Sastrigal and Ors.). The learned counsel, Mr. Sahu, relied on paragraphs 6, 14 and 15 of this judgment which are quoted hereinbelow for the sake of discussion:
“6. It seems that while he was employed in the Collectorate of Bellary, Sundaram acquired considerable wealth. The proof in support of this statement is furnished by the unimpeachable evidence of his bank accounts. In the Imperial Bank of India, Bellary, he had an account, copy of which is Ex. P-16(a). This account started on 2nd May, 1921 with a deposit of Rs. 2517-8-0 and continued till 8th February, 1926. Exhibit P-16 is an account of the fixed deposit of Sundaram in the Trichinopoly District Co-operative Central Bank Limited from 1920 to 1937. The first deposit in this account, as appears from the extract, is dated 3rd April, 1923 and is in the sum of Rs. 4000. Several deposits were made, renewed and withdrawn up to 1929. In that year he withdrew a sum of Rs. 4,200 from this account. The savings fund account and the fixed deposit account were running simultaneously. In August 1924, Sundaram invested a sum of Rs. 3000 in a mortgage of certain property [Ex. D-1(b)]. He also purchased certain Government Promossory Notes of the value of about Rs. 2500. On this evidence, the trial Judge found that till 1924 Sundaram had accumulated a sum of Rs. 11,000 in his own account, though he was drawing a small salary of Rs. 40 to 50 a month during that period. The accounts since the year 1929, kept by Natesa Sastri have been exhibited and are marked as Ex. P-1 and Ex. D-35 (A point has been raised whether these are Sundaram’s accounts or that of his mother). The first entry in those accounts begins with a credit of Rs. 370 on account of certain bonds and is dated 11th December, 1929. A large number of entries have been made therein showing considerable investments in money-lending business and in purchase of properties. Akilandammal was growing old. By the year 1929 she was nearing her 64th birthday. She had, so far as the record shows, no desire or necessity to amass separate wealth or to acquire properties for herself after he son had begun to earn well.
14. It was contended by the learned counsel for the appellants that the decision of the Court below against the appellants regarding these properties had been reached because of a wrong approach to this matter in law that the rule of onus of proof as regards benami transactions had not been fully appreciated. It is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. The Courts below proceeded to decide the case after fully appreciating the above rule and in our judgment their decision does not suffer from the defect pointed out by the learned counsel for the appellants.
15. There are certain facts which have been held established in the two Courts below and on the basis of which a decision has been reached against the appellants. These are: (1) that Sundaram Ayyar had the means to acquire these properties. The trial Judge found, and the High Court concurred in its finding, that as early as 1924 he had at least funds to the tune of Rs. 11,000, standing in his name in different banks and in other forms of investments and that he was also accumulating wealth during his later employment in the Collectorate at Bellary. (2) That Akilandammal had some promissory notes in her name up to 1924 approximately of the value of Rs. 2000, but she had no other means of acquiring properties. The latter finding was affirmed by the High Court and the former finding was reversed. It had been asserted on behalf of the defendants that she was running a boarding house in Trichinopoly and out of that business she effected certain savings, the extent of which was mentioned in the evidence at about Rs. 200 a year. It had further been asserted that Akilandammal carried on a very successful business in money-lending, her capital being her jewels worth Rs. 400, a sum of Rs. 500 given by her parents after the marriage of her son and Rs. 2000 which she had obtained from her sister, Kuzhandai Ammal, who lived with her, that when she went to Bellary with her son, she had a sum of Rs. 15,000 with her and that she later on started a motor bus service and earned considerable money therefrom and was thus in a position to acquire the properties in suit. The evidence on these points was given by one Natesa Sastri, DWS, but his testimony was not accepted and both the Courts negatived these assertions. (3)(1) That the bulk of the consideration for transaction evidenced by Ex. D-1 came from Sundaram Ayyar and Sundaram Ayyar also defrayed the costs of repairing the house. (ii) That out of the total consideration of Rs. 1860 for which the sale-deed. Ex. D-5, was effected, Rs. 1667-4-0 was directly traced to Sundaram Ayyar as his money. (iii) That the bus service was the business of Sundaram Ayyar and the money for the sale transaction (Ex. D-6 Rs. 1925, was taken out of the funds out of the business. (iv) That purchase under Ex. D-10 was made by Sundaram Ayyar because negotiations for the purchase were made with him and that he had made endorsements on the mortgage bond, which formed part of the consideration for the sale, and that there was evidence of the plaintiffs witness No. 1 in support of the plaintiffs case as well as direct evidence furnished by the letters, Ex. P-3 series. (v) That the transaction evidenced by Ex. D-11 for Rs. 1000 dated 7th July 1937 was done by Sundaram Ayyar. He sent the money and he also conducted the negotiations for the purchase.”
26. The learned counsel, Mr. Sahu, then submitted that as per the provisions of Section 2(a) of Benami Transactions (Prohibition) Act, 1988, benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person. From the findings of the learned Courts below it is proved that the wife was the benamdar who had no capacity to pay rather the defendant who had means paid or provided the consideration. The learned counsel for the respondent Mr. Sahu submitted that the judgments cited by Mr. Roy Chowdhury in this regard are not applicable in the instant case. Mr. Sahu sought to distinguish the judgments cited by Mr. Roy Chowdhury (supra), (supra), (supra) 1994(4) SCC 243 (supra) and 1983(1) CLJ p. 163 (supra). Mr. Sahu further submitted that both the Courts below concurrently held that the plaintiff was benamdar. Mr. Sahu also submitted that both the Courts below on assessment of entire evidence on record came to the said findings and in view of the amended provisions of Section 100 of the Code of Civil Procedure the High Court should not interfere with the decision of the Courts below in so far as the benami aspect is concerned. Mr. Sahu also submitted that in this regard the decision on which he has placed reliance squarely applies in the instant case. The learned counsel for the respondent led stress on the two important aspects in so far as the benami transaction is concerned the said two words are-provided and paid and evidence on that score are to be considered and the Court is to find whether the onus has been properly complied with by the party asserting benami.
27. In reply the learned counsel for the appellant submitted that the Courts below held benami but did not decide whether the defence has been struck off or not. Mr. Roy Chowdhury also submitted that if it is taken as benami transaction then what is the consequence or effect of the provisions of Section 4(2) of the Benami Transactions (Prohibition) Act, 1988. The learned counsel for the appellant concludingly submitted that both the judgments and decrees passed by the Courts below should be set aside and the learned counsel for the respondent submitted that in view of the submission made by him and in view of the evidence on record, this Court should dismiss the instant second appeal.
28. Heard the learned counsel for the parties. Considered their submissions and considered the decisions cited on behalf of the appellant and the respondent. Also perused the judgments of both the Courts below and the evidence on record.
29. In so far as the substantial questions of law are concerned it is seen that the learned trial Judge as well as the learned Appellate Court below wrongly decided the question of benami in the instant case. Both the Courts below failed to appreciate the definition of the term ‘benami’ as provided in the Benami Transactions (Prohibition) Act, 1988. Both the Courts below applied wrong test of law when interpreting the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988 for the sake of discussional convenience the provisions of sections 2 and 4 of the said Act are quoted hereinbelow:
“2. Definitions: In this Act, unless the context otherwise requires:
(a) “benami transaction” means any transaction in which property is transferred to one person for a consideration paid or provided by another person;
(b) “prescribed” means prescribed by rules made under this Act;
(c) “property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.”
“4. Prohibition of the right to recover property held benami:
(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this Section shall apply,
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.”
30. It also appears from the judgment and decree passed by both the Courts below that both the Courts wrongly placed the onus on the plaintiff to prove that the property was not a benami property. It is settled position of law that when a person asserts a property as benami he is to prove the benami. Both the Courts below also applied wrong test of law when both the Courts below decided that the purchase of the suit property was hit by the provisions of Section 281A of the Income Tax Act. As it appears the learned Appellate Court below wrongly observed that “I am of the view that the ex parte decree in O.C. Suit No. 159 of 1984 is not illegal for non-compliance of the said provisions of the Income Tax Act.” The Appellate Court below also came to the wrong finding when it observed “I am of the definite view that the said provision of the Income Tax Act was made only for the Income Tax Payer who should not transfer his property to avoid the Income-Tax payment.” The learned Appellate Court below also came to the wrong finding when it observed that the “provision of the said Benami Transactions (Prohibition) Act, 1988 has no application in the suit which was filed in the year 1984.” So far as the benami transaction is concerned both the learned Courts below failed to consider the real test which is to be applied in deciding whether a property is a benami property or not. The Federal Court’s judgment in the matter of Gangadara Ayyar (supra) in the authority in this regard and the learned Courts below could not at all, in my opinion, make the real test that is the source of consideration as well as the intention of the person to make a property benami. In this regard reference may be drawn to a recent decision delivered by one Hon’ble Division Bench of this High Court reported in 1996(2) CHN 185.
31. In my view the learned Courts below also wrongly put the onus on the plaintiff to prove that in the earlier suit notice was not served on the plaintiff. I am also unable to accept the contention of the learned counsel for the respondent Mr. Sahu that the second suit that is the instant suit out of which the present appeal arose is barred by res judicata. The learned counsel for the respondent cannot raise this new plea in the second appeal inasmuch as no issue in this regard was framed before the trial Court and/or the Appellate Court below and this point was neither argued nor considered by both the Courts below. That apart to constitute resjudicata identical issues are to be decided in the earlier suit but here I do not find any proof to that extent. The Courts below when coming to a finding that the plaintiff was an ordinary employee wording as sweeper and her mother was also a class-IV staff and as such they could not purchase the land are merely based on hypothesis and surmise and conjectures. The learned trial Judge did not consider the Exhibit No. 3 which is a certificate of goldsmith produced by the plaintiff to prove that her father was a dealer of gold. It is not understood why the learned trial Judge rejected this peace of evidence and/or Exhibit and relied only on the evidence of the defendant. It is also not appreciated as to why the learned trial Judge came to the finding that the plaintiffs father was not a rich man and dealer of gold. It is also not known wherefrom the learned trial Judge got this fact that the plaintiffs father was not a dealer of gold when the plaintiff produced a goldsmith certificate of his father which has been admittedly Exhibit A.
32. In so far as the interpretation of the provision of Section 281A of the Income Tax Act, 1961 both the Courts below came to a wrong finding. Section 281A of the Income Tax Act, 1961 is quoted hereinbelow:
“281 A. Effect of failure to furnish information in respect of properties held benami.
(1) No suit to enforce any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be instituted in any Court by or on behalf of a person (hereinafter in this Section referred to as the claimant) claiming to be the real owner of such property unless,
(a) the income, if any, from such property has been disclosed in any return of income furnished by the claimant under this Act; or
(b) such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth-Tax Act, 1957 (27 of 1957); or
(c) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income Tax Officer.
(2) The Income Tax Officer shall, on an application made by any person in the prescribed manner and on payment of the prescribed fees, issue for the purposes of a suit referred to in Sub-section (1), relevant extracts from the return furnished by such person under this Act or the Wealth-Tax Act, 1957 (27 of 1957), or a certified copy of any notice given by such person under Clause (c) of Sub-section (1), within fourteen days from the date of receipt of the application therefore.
(3) This Section shall not apply to any suit of a value not exceeding two thousand rupees which is tried by-
(a) a Court of small causes constituted under the Presidency Small Cause Courts Act, 1882 (15 of 1882), or the Provincial. Small Causes Act, 1887 (9 of 1887); or
(b) a Court invested with the jurisdiction of a Court of Small Causes, by or under any enactment for the time being in force, in the exercise of such jurisdiction.”
33. From the plain reading of the provision of the Income Tax Act it clearly appears that this provision of the Income Tax Act is attracted in its letter and spirit. The learned Appellate Court below also did not scrutinize the judgment and decree passed by the learned trial Judge as required under Section 96 of the Code of Civil Procedure and solely relied on the judgment and decree passed by the learned trial Judge. In my view coming to the conclusion on the basis of surmise and conjectures also both the Courts below made their judgments and decree perverse. I also respectfully disagree with the submissions made by the learned counsel for the respondent/defendant regarding the test of benami transaction, regarding applicability of Section 281A of the Income Tax Act. I do not find any proof from records that such return disclosing any acquisition of the property was filed. It will be needless to mention that in the present trend of judgments of the Hon’ble Apex Court the second Appellate Court can interfere into the concurrent finding of facts if there is perversity and if wrong tests of law are applied by both the Courts below.
34. In my view, these judgments and decrees come within the mischief of perversity and the application of the wrong tests of law.
I, therefore, set aside the judgments and decrees passed by both the Courts below and allow this instant appeal. Let the decree be drawn up accordingly.
In the facts and circumstances parties are to bear their own costs respectively.
The LCR be sent down to the Courts below forthwith.
Urgent xerox certified copy, if applied for, will be supplied to the parties expeditiously.
Later
7.04.2004
Learned counsel for the respondent prays for stay of operation of the judgment and order passed by this Court, but since this is an old second appeal, and that apart all the points have been considered and the decisions have also be discussed. Accordingly, the prayer for stay is refused.