JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree in A.S.No.3 of 2016 (Principal District Court, A.S.No.33/14), on the file of the II Additional District Court, Tindivanam and dated 01.12.2016 in confirming the judgment and decree in OS.No.35 of 2009 on the file of the Principal Subordinate Court, Tindivanam and dated 29.02.2012.)

1. The unsuccessful plaintiff is the appellant. He filed a suit for declaration of title and injunction against the respondent. The suit as well as the first Appeal preferred by him were dismissed. Hence, challenging the concurrent findings of the trial Court, he is before this Court.

2. The appellant and the respondent are husband and wife. According to the appellant/plaintiff, he is employed in United States and the suit property was purchased in the name of the appellant and the respondent by his father-in-law out of the funds sent by him to his father-in-law's account. It was specifically averred by the appellant that though sale deed in respect of the suit property jointly stands in the name of the appellant and the respondent, it was purchased only for the benefit of the appellant. Therefore, the appellant sought for declaration that he was the absolute owner of the suit property and for consequential injunction restraining the respondent from interfering with his alleged peaceful possession and enjoyment of the suit property.

3. The respondent herein filed a written statement and denied the averment of the appellant as if the suit property was purchased out of the funds sent by the appellant from abroad. It was further claimed by the respondent that the suit property was purchased by her father out of his funds for the benefit of the respondent. Therefore, she sought for dismissal of the suit.

4. Before the trial Court, the father of the appellant was examined as PW1, three documents were marked on behalf of the respondent as Ex.A1 to Ex.A3. The respondent's father was examined as DW1 and the vendor of the appellant and respondent was examined as D.W.2. 11 documents were marked on behalf of the respondent as Ex.B1 to Ex.B11.

5. The trial Court on appreciation of oral and documentary evidence available on record came to the conclusion that the appellant failed to prove his case and consequently, dismissed the suit. Aggrieved by the same, the appellant preferred an Appeal in A.S.No.3 of 2016 on the file of the II Additional District Court, Tindivanam. The First Appellate Court also concurred with the findings of the trial Court and dismissed the appeal. Aggrieved by the concurrent findings against him, the appellant has come up with this Second Appeal.

6. At the time of admission, this Court formulated the following substantial questions of law:

“1. Whether the Courts below are right in not drawing adverse inference for non-examination of defendant in the absence of any power document or permission petition?

2. Whether documents produced to show that money was transferred to defendant's father for the sake of purchase of the suit property, are the Courts below right in overlooking the same and that when the amount transferred was admitted by DW1 himself?

3. When there was no specific denial by the defendant as regards the purchase of the suit property in his name only in the capacity as a benami, are the Courts below are right in dismissing the suit?”

 7. The learned counsel for the appellant submitted that Ex.A2 & Ex.A3 the bank account and the statement regarding wire transfer service would establish that the appellant transferred a sum of Rs.10,47,500/- to the account of respondent's father and hence, the entire sale consideration for the purchase of the suit property has been provided by the appellant.

8. The learned counsel for the appellant further submitted that the appellant proved that he paid the entire sale consideration for purchase of the suit property, however, the Courts below c