IMPORTANT POINT
The burden of proof for a benami transaction lies with the party claiming it, and a new plea of law can be raised based on undisputed and proven facts, provided it does not unfairly prejudice the opposing party.

JUDGMENT :

Biswajit Basu, J.

1. The instant second appeal is at the instance of the defendants in a suit for eviction of licensees and other consequential reliefs being Title Suit No. 50 of 2010 and is directed against the appellate decree dated November 30, 2012 passed by learned Additional District Judge, Fast Track(I) Islampur, District-Uttar Dinajpur in Title Appeal No. 12 of 2012 thereby reversing the decree dated April 30, 2012 passed by the learned Civil Judge (Senior Division) Islampur in the aforementioned suit.

2. The second appeal was admitted under Order XLI Rule 11 of the Code of Civil Procedure to answer the following two substantial questions of law:-

1) Whether the learned judge in the lower appellate court, substantially, erred in law in reversing the decree of dismissal passed by the learned judge in the trial court rejecting the defence case of jointness without considering the voluminous documents produced by the defendant during trial, that is, revenue records of right, municipal record with sanctioned building plan and income tax return?

2) Whether the impugned judgment passed by the lower appellate court is a proper judgment of reversal?

3. The facts relevant to answer the aforesaid substantial questions of law are thus, the plaintiff (since deceased) was the elder brother of the defendant (since deceased). The plaintiff alleged that he, out of his own funds, by a registered deed of conveyance dated March 09, 1960 had purchased a piece of land at Islampur, District-Uttar Dinajpur (hereinafter referred to as the ‘suit land’ in short) and had constructed a two storied pucca building thereon described in the schedule ‘A’ appended to the plaint of the suit. The plaintiff has further alleged that he had allowed his younger brother and his family members to occupy the first floor of the said two storied building described in the schedule ‘B’ appended to the plaint of the suit as licensees under him. The said license though was revoked by a notice dated March 24, 2010, but the licensees refused to quit and vacate the Schedule B property, hence the suit.

4. The defendant contested the said suit with a defence that he is not a licensee under the plaintiff but a co-owner of the suit land and the structure thereon. The suit land though was purchased in the name of the plaintiff but for the benefit of all the family members and the consideration price was paid by Sarat Chandra Chowdhury, the father of the plaintiff and the defendant. The plaintiff is claiming absolute title over the suit land and the schedule A property in exclusion of his other brothers as the deed stands in his name.

5. On the death of the defendant, his widow and two sons were substituted in the suit. The substituted defendants contested the suit with the same defence of their predecessor-in-interest. In support of their said defence, they proved documentary evidences e.g. Exhibit-‘A’(Registered Agreement of family settlement),Exhibit-‘B’(Municipal building plan), Exhibits-‘C’, ‘D’ and ‘E’ (Income Tax returns), Exhibit-‘F’ series (Copy of R.S.R.O.R. of Mouza-Choprajhar) and Exhibit-‘G’ (Electricity Bill).

6. The learned Trial Judge had dismissed the suit holding inter alia that the plaintiff has failed to prove that at the relevant point of time, he had sufficient income to purchase the suit land and to construct Schedule A property thereon. The learned Trial Judge giving much credence to the deed of family settlement(Exhibit ‘A’) held that there was a joint family business which was separated after the death of the father of the parties, therefore whatever the plaintiff had acquired, it will be presumed to have been acquired from the common stock of the family, as such the plaintiff cannot claim exclusive ownership over the schedule A property, besides he is not entitled to the benefit of Section 4(3)(b) of the unamended The Benami Transactions(Prohibition) Act, 1988,(hereinafter referred to as the ‘said Act of 1988’ in short) rather he is a mere truste