1. Heard the learned Counsel appearing on behalf of the appellant and the learned Counsel appearing on behalf of Respondent No.1.

2. Appellant is the original Plaintiff and Respondents are original Defendants. For the sake of convenience parties shall be referred to as “Plaintiff” and “Defendants”.

3. Plaintiff filed suit for partition and separate actual possession of the Plaintiff’s one half share in the suit property and future mesne profit alongwith costs of the suit. Trial Court decreed the suit and held that the Plaintiff was entitled to get separate possession of his one half share in the suit property, subject to payment of additional court fee. Against this order, Defendants filed appeal No.253 of 1984 in the District Court and the decree of the Trial Court was set aside. Being aggrieved by the aforesaid judgment and order passed by the lower appellate court, Plaintiff has filed this second appeal.

4. The additional grounds were tendered by the Plaintiff’s advocate at the time of admission and the second appeal was admitted on the additional grounds which were tendered by the Plaintiff. The second appeal, therefore, was admitted on the following substantial questions of law:-

“20A) Whether in view of section 4 of Benami Transactions (prohibition) Act, 1988, which came into force on 19.5.88, it is now open to take the defence of the suit transaction being Benami?”

“20B) It should have been seen that the Honourable Supreme Court has held that Sec. 4 of the said Act will be retrospective in operation and will have the effect of nullifying the defence based on right in respect of property held Benami.”

“20C) The Appellant submits that the facts and Circumstances of the present dispute needs to be reappreciated especially in view of provisions of Benami Transactions (prohibition) Act being Act No.45 of 1988.”

5. During the course of hearing of this second appeal, the appellant/original Plaintiff has raised the following additional grounds:-

(1) Whether the judgment and order of the lower appellate court is perverse since it has not taken into consideration the following documents viz (i) Exhibit 38 – property card Extract, (ii) Exhibit 39 – Statement of Defendant No.1 before the City Survey Officer dated 20.9.1975, (iii) Exhibit 40 – Statement recorded before the City Survey Officer of the defendant No.1 before the City Survey Officer dated 19.7.1978 (iv) Exhibit 41 – Statement recorded before the City Survey Officer of the Plaintiff dated 23.8.1975, (v) Exhibit 49 – Statement recorded before the City Survey Officer of the defendant No.1 dated 20.9.1975, (vi) Exhibit 50 – Statement recorded before the City Survey Officer of defendant No.1 dated 20.9.1975, (vii) Exhibit 47 – copy of 7 x 12 extract sanctioned on 21.4.1970, (viii) Exhibit 48 – Property Card Extract dated 23.2.1982, (ix) Exhibit 83 – Statement of the plaintiff before the City Survey Officer dated 23.8.1975, (x) Exhibit 114

– Joint Building permission dated 19.1.1972, (xi) Exhibit 115 – Notices to both plaintiff and defendant no.1 by Municipal Council dated 12.1.1972, (xii) Exhibit 155 – N.A. Permission Order in the Joint Name dated 11.2.1981.”

6. Brief facts are as under:-

7. Plaintiff was a Doctor by profession and Defendant No.1 was working under him as his compounder for couple of years. He, however, obtained license for medical practice. A plot was purchased by the Plaintiff and Defendant No.1 in their joint name on 8th August, 1968 for consideration of Rs 5000/- from one Roshanbi and a bungalow was constructed on the said plot some time in the year 1972. The contention of the Plaintiff in the suit was that he was the joint owner of the said plot and bungalow which was constructed thereon and he, therefore, was claiming partition of the common property and for possession of the structure in respect of his one half share.

8. Defendant No.1 filed his Written Statement and denied the joint ownership of the Plaintiff. It was contended that h