JUDGMENT
Basudeva Panigrahi, J.
1. This appeal and this revisional application are directed against the Judgment/Order of affirmance passed by the 2nd Additional District & Sessions Judge, Hooghly in Title Appeal No. 160/ 72 whereby and whereunder the learned Additional District Judge has dismissed the suit and allowed the application filed by the opposite party contesting defendants under Section 24 of the West Bengal non-agricultural Tenancy Act.
2. The factual scenario of the case leading to the present appeal and the revisional applications are as follows:–
The appellant Sk. Golam Barik, hereinafter referred to as plaintiff, filed a Title Suit in T.S. No. 207/70 before the learned Munsif Hooghly for declaration that the sale deeds dated 23rd April, 1954 and 17th February, 1960 in respect of ‘B’ and ‘C’ schedule properties are fictitious, invalid and sham transaction and for permanent injunction against the respondent Sk. Kalu Mia (hereinafter be referred to as contesting defendant) and also against the other proforma defendants Md. Safiulla and Abdul Mazid Ansari (hereinafter called as proforma defendants).
3. The contesting defendant Sk. Kalu Mia filed a separate Misc. Case in Misc. Case No. 41/69 against the plaintiff and the other proforma defendants for pre-emption of the ‘D’ schedule property. Similarly, the contesting defendant also filed another application for pre-emption of ‘E’ schedule property in Misc. Case No. 8/70. The learned Munsif had taken up the hearing of all the cases and dismissed the plaintiffs suit whereas allowed the application filed under Section 24 of the West Bengal Non-agricultural Tenancy Act.
4. Plaintiff has stated that the ‘A’ schedule property was his ancestral property and the contesting defendant had been residing in ‘B’ and ‘C schedule property of the plaint as a licensee. The licence was granted in favour of the defendant No. 1 out of sheer love and affection grown between them. The plaintiffs only son Khali Rehman was addicted to drink, therefore, the plaintiff being advised by the contesting defendant for execution some document; so that his son would be under his full sway. Accordingly, the plaintiff executed fake and nominal sale deeds on 23rd April, 1954 and 17th February, 1960 in respect of ‘B’ and C schedule property in order to keep plaintiffs son under control. There was no transfer of ownership nor any title passed under the strength of those two sale deeds. The plaintiff had also not received any consideration amount thereto. Since the sale deed was executed benami in the name of the contesting defendant the latter had no vestige of right, title and interest over the suit land on the basis of those sale deeds.
5. The contesting defendant filed his written statement by stating, inter alia, that the plaintiffs had executed two registered sale deeds on 23rd April, 1954 and 17th February, 1960 respectively on receiving proper consideration and put the contesting defendant in possession. Since the defendant was being illiterate, he handed over the sale deeds to his maternal uncle for mutation in his name in the Municipality and thereafter his maternal uncle in collusion with the plaintiffs had secreted the document and failed to hand-over the same to the contesting defendant. The record of right also stands in the name of the defendant No. 1 which was within the knowledge of the plaintiff. The defendant No. 1 has also been paying Municipal taxes and, therefore, by those documents he has acquired an indefeasible right over the suit land. Since, he is the adjoining owner of the disputed land, he is competent to claim pre-emption right over the land which was not conveyed to him. It is also claimed by the defendant No. 1 since he has been in possession uninterruptively in his own right for the period of more than 12 years, thus, he even acquired title otherwise by adverse possession. Other proforma defendants, namely, the defendants 2 and 3 have pleaded, inter alia, that though they had been impleaded in the suit; against whom the plaintiff did not seek any relief.
6. The defendant No. 1 who filed an application under Section 24 of the West Bengal Non-agricultural Tenancy Act has stated, inter alia, that he being an adjoining owner of the plots which has been sold to the other proforma defendants, such transaction had taken place without any prior notice to the defendant No. 1 thus, he is entitled to claim pre-emption against the proforma defendants. All these matters were taken-up together and the learned courts below while dismissing the suit had allowed the other two petitions filed by the contesting defendant No. 1. The main controversy of the suit on which it hinges is whether the sale deed executed by the plaintiff in favour of the defendant No. 1 was an out-come of fraud, misrepresentation and undue influence. If it is decided affirmatively then the Judgment and decree passed by the trial court as well as the appellate court are liable to be upset. On the other hand, if the plaintiff would fall to substantiate the plea of fraud, undue influence and misrepresentation, then the Judgment and decree passed by both the courts below are bound to be affirmed. The main ground of the plaintiff attacking the sale deeds is that to create pressure on his son to behave properly who was addicted to drink and associated with bad company, those documents were executed. It is the case of the plaintiff that the defendant No. 1 was a licensee who was given the house without any payment of rent. On the other hand, the contesting defendant has taken a categorically stand that he came to the suit properties after having purchased from the plaintiff under two registered sale deeds. The learned trial court has disbelieved the theory of licence as advanced by the plaintiff and held that he sold the property after taking good consideration amount. Those findings also were affirmed by the 1st appellate court. The trial court as well as the 1st appellate court had disbelieved the plea of the plaintiff that those sale deeds were executed on account of keeping the plaintiffs son under his thumb as he became astray. The plaintiffs son is said to have left for Pakistan. In that case what prevented the plaintiff from taking imediate steps for getting a declaration that those sale deeds were sham-transaction. Both the courts below have concurrently held that if the plaintiff had transferred out of fear for his son, then why would he prefer to transfer a portion to the contesting defendant keeping the other major protion of the house with him. The scribe has been examined in this case who certified that the consideration amount had been received by the plaintiff. The defendant No. 1 has sought permission from the Municipal Authority for construction of latrine and also for some repair of the suit premises. Both the courts below on the basis of the statement of the defendant’s witness held that the sale deeds under which the plaintiff purportedly transferred to the defendant No. 1 was supported by consideration of Rs. 2500/- and Rs. 1200/-. The Assessment Registrar of Bhadreswar Municipality would also unmistakable raise an inference that the defendant No. 1 has been paying tax to the Municipality subsequent to the purchase. So considering the totality of the evidence, both, documentary and oral, the trial court and the appellate court have come to the conclusion that the suit property had been transferred to the defendant No. 1 which was supported by consideration.
7. The Supreme Court in a recent Judgment reported in Orissa Law Reviews 1996(II), 225 [Heirs of Vrajial J. Ganatra v. Heirs of Parshottam S. Shah) held:–
“The question whether a particular sale is benami or not is largely one of fact. Though there is no formula or acid test uniformly applicable it is well neigh settled that the question depends predominantly upon the intention of the person who paid the purchase money, for this burden of proof is on the person who asserts that it is a benami transaction. However, if it is proved that the purchase money came from a person other than the recorded owner (ostensible owner) there can be a factual presumption at least in certain cases, depending on facts, that the purchase was for the benefit of the person who supplied purchase money.”
8. The burden of proof being on the plaintiff to establish by clear, cogent and unambiguous evidence that the sale deeds were the out-come of fraud, undue influence and misrepresentation and the plaintiff having signally failed to discharge his burden, both the courts have rightly dismissed the plaintiffs suit. The suit is also otherwise barred by limitation as the plaintiff filed the suit after the expiry of more than 20 years from the date of execution of the sale deed. Therefore, considering the case of the appellant from any angle, there can be no room for doubt that he had executed both the sale deeds in favour of the defendant No. 1 who on the other hand acquired valid title over the suit ‘B’ and ‘C’ properties,
9. The defendant No. 1 claimed right of pre-emption over ‘C’ and ‘D’ schedule properties. Both the courts below have concurrently held that he is entitled for pre-emption against other proforma defendants. There is no reason to disagree with the observation of the learned courts below. Accordingly, the revisional application filed by the proforma defendants also devoid of merit and therefore the judgment/order directing preemption is bound to be affirmed in this revision.
10. In the result, the appeal as well as the revision are dismissed but in the circumstances without costs.