The main legal point established in the judgment is that the suit filed by the plaintiff was not barred by the provisions of Section 4 of the Benami Transaction (Prohibition) Act, 1988.

( 1 ) THIS second appeal has been filed by the defendant/appellant against the judgment and decree dated 26. 11. 1992 passed by Sri Pooran Singh, the then Special Judge/ Additional District Judge, bulandshahr in First Appeal No. 262 of 1974 arising out of Original Suit No. 189 of 1972 of the court of Civil Judge, Bulandshahr.

( 2 ) THE relevant facts may be stated briefly. The plaintiff/ respondent No. 1 filed a suit in the trial court for the recovery of possession of the property in question against the defendant No. 1/appellant and two others arrayed as respondent Nos. 2 and 3 in this appeal, on the ground that he was the owner of the disputed kothi. The defendant No. 1/appellant is his real brother. He reposed full confidence in his brother-defendant/appellant. He was in service and sent Rs. 9,400 by bank draft to his brother defendant No. 1/appellant in 1964 and also paid to him a sum of Rs. 2,000 in cash for the purchase of land and construction of a kothi. The defendant No. 1/ appellant accordingly purchased land for the construction of kothi with the money sent by him. Thereafter, he (plaintiff) sent money to his brother by different bank drafts and also made cash payments to him personally on several occasions when he came to Bulandshahr. The said money was paid by him for the construction of the kothi. In consequence of large sums of money having been sent and paid by him to his brother defendant No. 1/appellant. The kathi was constructed over the purchased land out of such funds. The defendant No. 1/appellant had no right or interest in the kothi which was his self-acquired property, viz. , of the plaintiff. He (plaintiff) remained in possession of kothi and used to slay in it on his visits from the place of his service. In 1966, the defendant No. 1/ appellant with the leave and licence of the plaintiff also started living therein. Later on relations between the two became strained and defendant No. 1/appellant turned hostile and dishonest, not permitting the plaintiff to stay in it. The plaintiff also discovered that the sale-deed had been got executed by the defendant No. 1/appellant of the land in his own name. However, it did not at all affect the title of the plaintiff who was the real owner having supplied funds for the purchase of the land and construction of the kothi. By serving a notice on defendant no. 1/ appellant, the plaintiff revoked his licence and also required him to deliver possession of the property to him, but to no effect. Hence arose the necessity for the filing of the suit for the relief of possession over the disputed kothi and also for being awarded mesne profits amounting to Rs. 2. 400 together with future mesne profits.

( 3 ) THE defence, in short, of the defendant No. 1/appellant was that he was the exclusive owner of the property in question with which the plaintiff was not at all concerned. According to him, the land had been purchased and the constructions raised by him with his own funds and he was the exclusive owner in possession thereof. Before the second marriage (gauna) of the plaintiff, his relations with him were cordial. He managed and performed the marriage of the plaintiff in 1968 spending huge amount. Whatever amount was paid by the plaintiff to him, the same was spent in his marriage. The plaintiff never sent any money for the purchase of the land and constructions. Actually, the plaintiff used to send the money to him for the maintenance and education of his step-brothers and the same was spent on his step-brothers as per his instructions. With such main allegations, he prayed for the dismissal of the suit.

( 4 ) ORAL and documentary evidence was adduced from both the sides. The trial court, however, dismissed the plaintiffs suit on appraisal of the evidence adduced by the two sides. Feeling aggrieved, the plaintiff preferred appeal. The first appellate court, on parallel accounting to the oral and documentary evidence adduced by the two sides, found in fa