Syed Md. Mahfooz Alam, J.
1. This second appeal has been preferred against the judgment dated 13.7.1988 and decree dated 20.7.1988 passed by Sri Narendra Bahadur Verma, District Judge, Nalanda at Biharsharif in Title Appeal No. 58 of 1986 whereby he has been pleased to confirm the judgment dated 6.9.1986 and decree dated 19.9.1986 passed by Sri Sheo Shankar Singh, Additional Munsif in Title Suit No. 29 of 1982 / 57 of 1986 dismissing the suit of the plaintiff. The plaintiff-appellant being aggrieved by and dissatisfied with the said judgment and decree has preferred this second appeal.
2. The brief facts which gave rise to filing of this second appeal are as follows:
Plaintiff-appellant Uma Shankar Mishra alias Lakshman Jee filed Title Suit No. 29 of 1982 in the court of the Munsif, Nalanda at Biharsharif for declaration of his right, title and interest and confirmation of his possession with respect to the suit property described in the schedule of the plaint and also for restraining the defendants permanently from going over the suit land. He has also prayed to decree the suit with cost. The defendants-respondents appeared in the suit and contested the claim of the plaintiff. Both the parties adduced oral as well as documentary evidence and thereafter the learned Additional Munsif, Nalanda at Biharsharif vide his judgment dated 6th September, 1986 dismissed the suit of the plaintiff. Against the said judgment and decree, the plaintiff preferred appeal which was finally disposed of on 13th July, 1988 by the District Judge, Nalanda who dismissed the appeal and then the plaintiff-appellant preferred this second appeal.
3. The case of the plaintiff, in brief, is that the suit property comprising an area of 2 bighas 10 dhurs appertaining to plot Nos. 1990 and 1994 of Khata No. 318 situated in village Habanpura was purchased by Mahabir Prasad Mishra and Sheo Nandan Mishra by virtue of the sale deed dated 3.10.1921 executed by Brahmadeo Singh and Sheo Shankar Singh and the purchase was made in the benami name of Pandit Lal Bihari Mishra, a close relative of Mahabir Prasad Mishra and Sheo Nandan Mishra although the entire consideration money was paid by Sri Mahabir Prasad Mishra and Sheo Nandan Mishra. After the said purchase, the said Mahabir Prasad Mishra and Sheo Nandan Prasad Mishra came in possession over the suit land along with other purchased land. There were some dues of the creditor, namely, Mukund Lal and the purchasers Mahabir Prasad Mishra and Sheo Nandan Mishra paid the entire dues on behalf of Brahmadeo Singh and Sheo Shakhar Singh to the said Mukund Lal. Further case of the plaintiff is that the original vendor, Brahmdeo Singh and Sheo Shankar Singh did not withdraw the original sale deed dated 3.10.1921 from the registry office and did not hand over the same to the plaintiff's ancestors, namely, Mahabir Prasad Mishra and Sheo Nandan Mishra and as such Mahabir Prasad Mishra and Sheo Nandan Mishra filed Title Suit No. 75 of 1923 in the court of Munsif, Biharsharif against Brahmadeo Singh and others claiming the relief that the said Brahmdeo Singh and Sheo Shankar Singh be directed to hand over the original sale deed to them. In the said title suit Lal Bihari Mishra was made performa defendant. The suit ended in compromise and accordingly, a compromise decree was prepared. As per the terms, it was agreed that Brahmadeo Singh would withdraw the original sale deed from the registry office and will hand over the same to Anandi Prasad, Advocate. It was further agreed that in the event Brahmdeo Singh failed to withdraw the original sale deed and hand over the same to Anandi Prasad, Advocate, the certified copy of the said sale deed would be considered equivalent to the original sale deed. However, the said Brahmadeo Singh failed to hand over the original sale deed to Mahabir Prasad Mishra and Sheo Nandan Mishra.
Further case of the plaintiff is that Lal Bihari Mishra was simply a benamidar and on the strength of the sale deed dated 3.10.1921 neither the title of the suit land passed to him nor he ever came in possession of the suit land. Likewise, the purchaser Pradeep Singh also did not acquire any title by virtue of the sale deed dated 15.6.1964 executed by Kapileshwar Mishra and Chandrakala Devi and never came in possession of the suit land. The plaintiff has been coming in peaceful cultivating possession of the suit land and his name has been mutated in the Shrista of the State of Bihar. The plaintiff is paying rent and obtaining rent receipts from the State of Bihar. Further case is that the defendants on the strength of the sale deed dated 15.6.1964 started disturbing possession of the plaintiff and due to that, a proceeding under Section 144 of the Code of Criminal Procedure was started between the plaintiff and the defendants but the same was dropped. The plaintiff has asserted that the sale deed dated 15.6.1964 executed in favour of defendant Pradeep Singh is a forged and fraudulent document and on that basis the defendants have never come in possession over the suit land but since they were disturbing the possession of the plaintiff, as such necessity of filing of the suit arose.
4. All the defendants have appeared in the suit and have filed joint written statement. The case of the defendants, in brief, is that the suit, as framed, is not maintainable, the sane is barred by limitation, and that the plaintiff has got no cause of action. The averment made in the plaint that Mahabir Prasad Mishra and Sheo Nandan Mishra were the real purchasers of the suit land and they had purchased the same from Brahmdeo Singh and Sheo Shankar Singh in the name of Lal Bihari Mishra who was simply Benamidar, is wrong and incorrect. The fact is that Lal Bihari Mishra was the real purchaser and he had purchased the suit land for valuable consideration by virtue of the sale deed dated 3.10.1921 executed by Brahmdeo Singh and Sheo Shankar Singh and after the said purchase, Lal Bihari Mishra came in cultivating possession of the suit land. Further case of the defendants-respondents is that after the said purchase, the name of Lal Bihari Mishra as raiyat was mutated in the Shrista of the ex-landlord and the said Mahabir Prasad Mishra and Shiv Nandan Prasad Mishra had no concern with the suit land. Further case is that Lal Bihari Mishra was not a party to the compromise arrived at between the plaintiff and Brahmdeo Singh and Sheo Shankar Singh in Title Suit No. 75 of 1923 and all the papers produced on behalf of the plaintiff in support of the abovesaid compromise are forged and fabricated documents which are not binding upon the defendants. Further case of the defendants is that after the death of Lal Bihari Mishra, his heirs inherited the suit property and came in possession of the suit land along with other lands and as such, the vendors of the defendants, namely, Kapileshwar Mishra and Chandrakala Devi had full right, title and interest to the suit land. It is further said that after execution of the sale deed on 15.6.1964 the vendors of the plaintiff, namely, Kapileshwar Mishra and Chandrakala Devi put the defendants-respondents in possession of the suit land and since then the defendants have been coming in peaceful possession of the suit land. It is further said that the names of the defendants, namely, Pradeep Singh and Saryug Singh were mutated in the Anchal with respect to the suit land and they are paying rent of the suit land and obtaining rent receipts from the State of Bihar. On the basis of the above pleadings, the prayer has been made to dismiss the suit.
5. From perusal of the record of the lower court it appears that the trial court has framed altogether six issues for determination which are as follows:
(i) Whether the suit, as framed, is maintainable ?
(ii) Whether the suit is barred by law of limitation ?
(iii) Whether the plaintiff has got any cause of action for instituting the suit ?
(iv) Whether Lal Bihari Mishra was Farzidar of Mahabir Prasad Mishra and Shiv Nandan Mishra or he was the real purchaser ?
(v) Whether the plaintiff has got title and possession of the suit land and he is entitled for confirmation of his possession over the suit land ?
(vi) Whether the plaintiff is entitled to get any relief, if so, what ?
6. From perusal of the judgment of the trial court it appears that the trial court considered issue Nos. (iv) and (v) as the main issues in the suit and after making full discussion on the abovementioned issues, the trial court came to the conclusion that. Lal Bihari Mishra was not the Farzidar of Mahabir Prasad Mishra and Shiv Nandan Mishra rather he was the real purchaser of the suit property and the defendants are the bonafide purchasers of the suit land from the heirs of Lal Bihari Mishra and they are in possession of the suit land. It further transpires that on the basis of the above findings, the trial court dismissed the suit of the plaintiff. Against the said dismissal of the suit, the plaintiff-appellant preferred appeal which was numbered as Title Appeal No. 58 of 1986 and the same was finally disposed of on 13th July, 1988 by the then District Judge, Nalanda who dismissed the appeal and confirmed the finding of the trial court.
7. From perusal of the record of this second appeal it appears that at the time of admission of this appeal, the following substantial questions of law were formulated for final hearing in the appeal. The substantial questions of law as formulated are as follows:
(i) Whether the suit was barred by Benami Transaction Prohibition Act ?
(ii) Whether the compromise decree dated 22.2.1924 in Title Suit No. 75 of 1923 has been misconstrued ?
(iii) Whether the findings of the court below are in complete disregard of the material evidence on record ?
Substantial Question of Law No. (i)
8. From perusal of the judgments of the trial court as well as the first appellate court it appears that there is no finding of the courts below that the suit was barred by the provisions of Benami Transactions (Prohibition) Act, 1988 (hereinafter to be called as the 'Benami Act') but even then at the time of admission of this second appeal, this substantial question of law was formulated, as such I think it proper to give answer to this question. It is not in dispute that after enactment of Benami Act all Benami transactions were prohibited and even filing of suit on such claim has been barred. According to Section 4(1) and (2) of the Benami Act, no suit, claim or action to enforce any right in respect of any property held benami shall lie in any court. Likewise, no defence can be based on the basis of the property held benami.
9. I would like to quote Section 4(1) and (2) of the Benami Act. Sub-section (1) of Section 4 of the Benami Act runs as follows:
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
Sub-section (2) of Section 4 of the Benami Act runs as follows:
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.
10. Thus, Section 4 of the Benami Act fully abolishes the enforcement of any right in respect of any property held benami but the question is as to whether Section 4 of the Benami Act will apply to cases filed before coming into force of the Benami Act, According to Sub-section (3) of Section 1 of the Benami Act, Section 4 of the Benami Act came into force on 19th May, 1988, therefore the question is whether Section 4 of the Benami Act will apply in the suit which was filed before 19th May, 1988 i.e. before coming into force of Section 4 of the Benami Act. Earlier view was that the provisions of the Benami Act were retrospective and are applicable in cases which were filed earlier but pending on the date on which the Benami Act came into force. This view was taken by the Hon'ble Supreme Court in the case of Mithilesh Kumari and Anr., appellants v. Prem Behari Khare, respondent reported in 1989 PLJR (SC) 75 but that decision was overruled by the Apex Court in the case of R. Rajagopal Reddy (dead) by Lrs. and Ors. appellants v. Padmini Chandrasekharan (dead) by Lrs. respondents reported in (1995) 2 Supreme Court Cases 630. While reversing the decision given in the case of Mithilesh Kumari and another (supra), the Apex Court has, at para 21 of the said decision, held as follows:
As a result of the aforesaid discussion it must be held, with respect, that the Division Bench erred in taking the view that Section 4(1) of the Act could be pressed in service in connection with suits filed prior to coming into operation of that section. Similarly the view that under Section 4(2) in all suits filed by persons in whose names properties are held no defence can be allowed at any future stage of the proceedings that the properties are held benami, cannot be sustained. As discussed earlier Section 4(2) will have a limited operation even in cases of pending suits after Section 4(2) came into force if such defences are not already allowed earlier. It must , therefore, be held, with respect, that the decision of this Court in Mithilesh Kumari case does not lay down correct law so far as the applicability of Section 4(1) and Section 4(2) to the extent hereinabove indicated, to pending proceedings when these sections came into force, is concerned. Accordingly, the question for consideration is answered in the negative.
11. Thus, from the decisions cited above, it is clear that the provisions of the Benami Act cannot be applied to suit, claim or action filed prior to coming into force of the Benami Transactions (Prohibition) Act, 1988. According to Sub-section (3) of Section 1 of the Benami Act, Section 4 of the Benami Act came into force on 19th May 1988, hence, the provision of Section 4 of the Benami Act will definitely not apply in the suits filed before 19th May, 1988, Since this suit was filed in the year, 1982 i.e. much before coming into force of the Benami Act, as such I feel no difficulty in holding that the Benami Act will not be applicable in this case and the suit is not barred by Benami Transactions (Prohibition) Act. Accordingly, this substantial question of law is answered.
Substantial Question of Law No. (ii)
12. As per the case of the plaintiff-appellant,
the suit lands appertaining to khata No. 318 plot Nos. 1990 and 1994 were purchased by the plaintiff's father Shiv Nandan Prasad Mishra and his relative Mahabir Mishra by virtue of the sale deed dated 3.10.1921 executed by Brahmdeo Singh and Sheo Shankar Singh in the farzi name of Pandit Lal Bihar; Mishra. Further case is that since the executants of the deed, namely, Brahmadeo Singh and Sheo Shankar Singh, did not hand over the original sale deed, as such the ancestor of the plaintiff, namely, Mahabir Mishra and Shiv Nandan Mishra brought Title Suit No. 75 of 1923 in the court of the Munsif, Biharsharif claiming the relief that Brahmdeo Singh and Sheo Shankar Singh be directed to hand over the original sale deed and the said suit was decreed on the basis of the compromise on 22.2.1924 and as per the terms of the compromise, it was agreed that Brahmadeo Singh will withdraw the original sale deed from the registry office and hand over the same to Anandi Prasad, Advocate of the plaintiff in the said title suit. It was further agreed that in the event Brahmdeo Singh failed to withdraw the original sale deed and hand over the same to Anandi Prasad, Advocate, the certified copy of the said sale deed would be considered equivalent to the original sale deed.
13. The argument of the learned Advocate of the appellants is that the compromise decree passed in Title Suit No. 75 of 1923 on 22.2.1924 is on record and the same is Ext. 10 in this case. He submitted that the said title suit was filed by Rai Saheb Mahabir Pd. Mishra and the father of the plaintiff, namely, Sheo Nandan Mishra against vendors, namely, Brahmdeo. Singh and Sheo Shankar Singh. He further argued that Lal Bihari Mishra the ancestor of the vendors of the defendants was proforma defendant in the said suit and in the said suit it was specifically pleaded that Rai Saheb Mahabir Pd. Mishra and the father of the plaintiff, namely, Sheo Nandan Mishra were the real purchasers of the suit land and the proforma defendant Lal Bihari Mishra was merely a benamidar. The said suit was decreed in terms of the compromise and therefore, the compromise decree passed in the said suit shall be binding upon the proforma defendant, Lal Bihari Mishra also. The learned Counsel further argued that according to the terms of the compromise, Brahmdeo Singh and Sheo Shankar Singh agreed to withdraw the original sale deed from the registry office and to hand over the same to the lawyer of the plaintiff of the said suit. It was also agreed that if Brahamdeo Singh and Sheo Shankar Singh did not withdraw the original sale deed from the registry office and failed to hand over the same to the lawyer of the plaintiff of that suit, then in that case certified copy of the sale deed dated 3.10.1921 shall be considered as the original sale deed for all purposes. The learned Advocate of the appellant further submitted that since no appeal was preferred by any person specially by proforma defendant Lal Bihari Mishra, as such the said compromise decree attained finality and now no person can be allowed to plead against the terms of the compromise decree. The learned Advocate submitted that the trial court as well as the first appellate court did not properly interpret the terms of the compromise decree and due to that, both the courts below arrived at incorrect finding.
14. Let me see - whether the compromise decree given in Title Suit No. 75 of 1923 dated 22.2.1924 is binding upon Lal Bihari Mishra and persons claiming under him. It is the admitted position that Lal Bihari Mishra was proforma defendant in Title Suit No. 75 of 1923 and Ext. 10 shows that decree was passed against him ex parte. There is nothing on record to show that Lal Bihari Mishra had appeared in the suit. Ext. 10 further shows that Lal Bihari Mishra had not entered into compromise and so without any proof that the said Lal Bihari Mishra had knowledge about the pendency of Title Suit No. 75 of 1923 and that without any proof that summons was legally served upon him in the said title suit, the decree passed in Title Suit No. 75 of 1923 on 22.2.1924 behind his back cannot be binding upon him.
15. From perusal of the certified copy of the plaint of Title Suit No. 75 of 1923 which is on record and which has been marked as Ext.5 in the suit, it appears that the said suit was filed for issuing direction to the defendant second set, namely, Brahmdeo Singh and Sheo Shankar Singh, to hand over the original sale deed executed on 3.10.1921 (Ext.7/A) to the plaintiff, namely, Rai Saheb Mahabir Mishra and Shiv Nandan Mishra and no relief was claimed for declaration that proforma defendant Lal Bihari Mishra was merely a benamidar of the plaintiff, in a such a situation, when there is nothing on record that Lal Bihari Mishra had any knowledge about the pendency of Title Suit No. 75 of 1923 or that he had appeared in the suit, the decree passed in the suit on the basis of the compromise directing the contesting defendants, namely, Brahmdeo Singh and Sheo Shankar Singh to hand over the original sale deed after withdrawing the same from the registry office and in case of non-compliance, the certified copy of the sale deed will be deemed to be the original, cannot be binding upon the proforma defendant Lal Bihari Mishra or his successor-in-interest. I am, therefore, of the view that the learned courts below have not misconstrued the compromise decree dated 22.2.1924 passed in Title Suit No. 75 of 1923 and accordingly, this substantial question of law is answered.
Substantial Question of Law No. (iii)
16. From perusal of the record of this appeal it appears that this appeal has been preferred against the concurrent findings of the two courts below whereby both the courts below have dismissed the suit of the plaintiff. It is settled principle of law that in second appeal where there is concurrent findings of the courts below, the power of this Court to interfere with the findings of the courts below is very limited and as per the provisions of Section 100 of the Code of Civil Procedure, this Court is not empowered to re-appreciate the evidence of the parties without formulating substantial question of law and without coming to the conclusion that the findings of the courts below are perverse. In this regard, reliance can be placed upon the following decisions (i) AIR 1959 Supreme Court 57 (Deity Pattabhiramaswamy v. S. Hanymayya Ayyar and Ors.); (ii) : [1963]3SCR604 (V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr.) (iii) : [1999]2SCR728 (Kondiba Dagadu Kadam v. Savitribai Sopan Gujara and Ors.) and (iv) 2005 (2). BBCJ (IV) Page 420 (Monicka Poosali (D) by Lrs v. Anjalai Animal and Anr).
17. Thus, on the basis of the decisions cited above, I have no hesitation to hold that this Court in second appeal can only interfere with the findings of the courts below when it is found that the findings are perverse or based on no evidence or misreading of evidence. Let me see - whether the findings of the courts below are perverse.
18. The plaintiff's case is based on the fact that the sale deed dated 3.10.1921 was a benami transaction and although the sale deed (Ext. 7/A) stands in the name of Lal Bihari Mishra but the plaintiff's father, Shiv Nandan Mishra and his grand-father Rai Saheb Mahabir Mishra were the real purchasers and Lal Bihari Mishra was simply a benamidar. To prove that certain transaction was benami, the person who takes such plea has to prove the following ingredients : (i) motive for benami transaction (ii) relationship between the parties; (iii) possession of the property in question ; (iv) custody of title and (v) payment of consideration money. It has been rightly held by the two courts below that the onus to prove that the sale deed dated 3.10.1921 was a benami transaction was upon the plaintiff. It further transpires that the learned first appellate court has elaborately discussed this point in paragraphs 10, 11, 12, 13 and 14 of his judgment and after making full discussions on the above points, the learned Judge has come to the conclusion that there was no motive for such benami transaction as relationship between Rai Saheb Mahabir Mishra and Shiv Nandan Mishra on the one hand and Lal Bihari Mishra on the other was not so close as to raise a presumption of Lal Bihari Mishra being Farzidar. The learned Judge has further held that there is no evidence on record that the consideration money was paid by Rai Saheb Mahabir Mishra and Shiv Nandan Mishra and that the possession of the property was delivered to them. He has further held that in absence of the custody of the original title deed by the plaintiff, it cannot be held that Lal Bihari Mishra was simply a benamidar. I have gone through the entire judgment and at the very outset I would like to say that the reasonings given by the learned Judge on all the points are very sound and cannot be said to be perverse. However, in the following paras I would like to see whether the courts below have applied correct test in determining that sale deed dated 3.10.1921 was not a Benami transaction.
19. The first and foremost test of benami character of transaction is the custody of the original sale deed. Admittedly, in this case the plaintiff is not in possession of the original sale deed and in place of the original sale deed, the plaintiff has brought certified copy of the sale deed. It has been argued that in view of the compromise decree passed in Title Suit No. 75 of 1923, the certified copy of the sale deed should be treated as original sale deed as inspite of the compromise decree Brahmdeo Singh and Sheo Shankar Singh, executants of the sale deed, failed to hand over the original sale deed.
20. Let me see - whether this stand of the plaintiff is correct or not. The plaintiff has brought the compromise decree which is on record and has been marked as Ext. 10. The compromise petition which is attached with the compromise decree and which is part of the decree shows that as per the terms and conditions of the decree, the plaintiff's ancestor had cleared the entire dues of Brahmdeo Singh and Sheo Shankar Singh and on the very date of compromise, both the vendors and vendee had exchanged the chirkut termed as Takazul Badlain and so when all the dues were cleared and chirkut had been exchanged, what prevented the plaintiff's ancestor to withdraw the original sale deed remains unexplained. This circumstance goes to establish that neither Rai Saheb Mahabir Mishra and Shiv Nandan Mishra nor Brahmdeo Singh and Sheo Shankar Singh were in possession of the 'Chirkut' otherwise on the very date of compromise they would have withdrawn the original sale deed from Registry Office. In such a situation, it appears that this clause was intentionally added in the compromise petition that if the defendants of the said suit failed to hand over the original sale deed to the lawyer of the plaintiff then in that case the certified copy of the sale deed will be treated as original because they were knowing that they cannot obtain the original sale deed in the absence of Chirkut. Thus, I am of the view that the learned courts below have rightly held that plaintiff having not been in possession of the original sale deed dated 3.10.1921 has failed to prove one of the important ingredients of Benami transaction.
21. Another important test to come to the conclusion that certain transaction is a benami transaction is as to who actually paid consideration money to the vendor. It appears that the learned first appellate court has dealt with this point at para 12 of the judgment. According to the judgment, there is no direct evidence on the factum of payment of consideration money to the vendors, Brahmdeo Singh and Sheo Shankar Singh by Mahabir Prasad Mishra and Shiv Nandan Mishra. The learned first appellate court has noted down this statement of the plaintiff that some amounts were paid to the vendors by money order and there were some other dues of the creditors which were cleared by Mahabir Prasad Mishra and Shiv Nandan Mishra but he has come to the conclusion that this statement of the plaintiff was not supported by any cogent evidence nor any chit of paper was produced on behalf of the plaintiff to show that Mahabir Prasad Mishra and Shiv Nandan Mishra had cleared the dues of the creditors. According to the first Additional Judge, this circumstance goes to prove that the plaintiff has failed to prove that the consideration amount was paid to the vendors, namely, Brahmdeo Singh and Sheo Shankar Singh by his ancestor, Mahabir Prasad Mishra and Shiv Nandan Mishra. I am of the view that this finding of the appellate court is based on correct appreciation of the evidence available on record and there is no need of any interference in the finding.
22. On the point of motive and relationship between the parties, the first appellate court at paragraphs 11 and 12 of the judgment has held that as the motive for benami transaction has not been pleaded in the plaint although in evidence the plaintiff (P.W.1) has deposed that his father was a Zamindar, a Kastkar and was also a Government servant and so the suit property was purchased in th farzi name of Lal Bihari Mishra, and so the evidence of the plaintiff on the point of motive cannot be looked into as the same was not pleaded in the plaint. I fully agree with the finding of the learned first appellate court as the same is according to law.
23. On the point of relationship between Lal Bihari Mishra and the plaintiff's father, Shiv Nandan Mishra, it has come in the evidence of the plaintiff (P.W.1) that Lal Bihari Mishra was his Chachera Baba (cousin grand-father). The first appellate court has come to the conclusion that this relationship between the father of the plaintiff and Lal Bihari Mishra was not so close as to raise the presumption that Lal Bihari Mishra was Farzidar of Mahabir Prasad Mishra and Shiv Nandan Mishra. I am of the view that this finding of the first appellate court is absolutely correct in view of the fact that Mahabir Prasad Mishra, one of the purchaser was also cousin grand-father of the plaintiff and if the plaintiff's father being in Government service was not in a position to purchase the suit property in his own name then in that case the entire suit property could have been purchased in the name of Mahabir Pd. Mishra who was also a cousin grand-father of plaintiff. This circumstance goes to prove that the plea of the plaintiff that since his father was in Government service and was a Zamindar, as such, the property was purchased in the benami name of Lal Bihari Mishra cannot be accepted.
24. Another important ingredient to prove that certain transaction is benami one is the possession of the party over the property in question. It appears that the first appellate court has elaborately dealt with this point at paragraph 15 of its judgment and has come to the conclusion that after the sale deed dated 3.10.1921 Lal Bihari Mishra remained in possession of the suit property followed by his sons and daughter-in-law, namely, Chanderkala Devi who sold the suit property to the the defendants who are in possession of the suit property. It has been argued by the learned Advocate of the appellant that this finding of the court below is incorrect and against the material available on record. His contention is that the plaintiff has brought several documentary evidence including Jamabandi and rent receipts in support of his plea that he has been coming in possession of the suit land but both the courts below have failed to properly appreciate all the documentary evidence adduced on behalf of the plaintiff on the point of possession. It is true that the the plaintiff has brought several Zamindari rent receipts as well as rent receipts granted by the State of Bihar which are on record including the Jamabandi but I am of the view that the learned trial court as well as the learned first appellate court have rightly not placed reliance on these documents because on the one hand it is difficult to connect that these rents receipts are with respect to the suit land, on the other hand Jamabandi return (Ext.2) filed by the ex-landlord as well as Zamindari rent receipts (Ext.1/H and 1/i) shows that the ex-landlord had filed Jamabandi return (Ext.2) in the name of plaintiff Uma Shankar Mishra and he was accepted as recorded tenant of the suit land and that is why the ex-landlord had issued rent receipts (Exts. 1/H and 1/i) in his name but strangely enough the State of Bihar recognised Sheo Nandan Mishra as recorded tenant with respect to the suit land and issued rent receipts (Ext. 1/C, 1/D, 1/E, 1/F & 1/G) in the name of Sheo Nandan Mishra instead of Uma Shankar Mishra. This circumstance establishes that all the rent receipts as well as Jamabandi returns produced by the plaintiff are forged and fabricated documents and on that basis it cannot be held that the plaintiff is in possession of the suit land and, therefore, I am of the view that the learned trial court as well as first appellate court have rightly held that the plaintiff has failed to prove his possession over the suit land. Thus, it appears that the plaintiff has not succeeded in proving even a single ingredient of benami transaction and by no stretch of imagination, it can be held that the findings of the courts below are perverse. or incomplete disregard of the material evidence on record. I have already held above that in second appeal this Court is not empowered to interfere with the concurrent findings of the courts below unless the findings are found to be perverse.
25. In the result, I do not find any merit in this second appeal and as such, the same is hereby dismissed. Accordingly, the findings of the courts below on all the points are confirmed. However, there will be no order for cost.