IMPORTANT POINT
The burden of proving a transaction as benami lies on the person asserting it, requiring clear evidence and pleadings to support such claims.

JUDGMENT :

(Kshitij Shailendra, J.)

1. Summons were duly published in daily newspaper Amar Ujala in compliance of order dated 09.12.2022. Compliance affidavit supported by original newspaper is on record. Service of notice upon respondent nos.1/1 and 1/2 is, therefore, held to be sufficient. No one has filed vakalatnama on their behalf.

2. Appeal is ripe for final hearing. The Court, therefore, proceeds to finally decide the appeal.

3. Heard Sri Anil Sharma, learned Senior Counsel assisted by Sri Ramesh Kumar, learned counsel for the defendant-appellants and perused the record.

4. The instant second appeal raises a challenge to the judgment and decree dated 06.04.1979 whereby, the first appellate court has set aside the judgment of the trial court and decreed the suit filed by the plaintiff-respondents for recovery of possession of immovable property and damages.

5. The relevant facts of the present case are that one Kuremal had three sons namely, Dwarika Prasad, Waziri Lal and Banke Lal. Dwarika Prasad had a daughter namely, Kamlawati, who was married to one Ram Narayan. This couple had three sons namely, Rama Shankar, Ravi Shankar and Rati Shankar. Waziri Lal, i.e. real brother of Dwarika Prasad, instituted Original Suit No.602 of 1970 against Kamlawati and her three sons claiming a decree for possession and damages in respect of immovable property described in the plaint. The basis of the claim was that there was a sale deed dated 09.07.1942 existing in the name of Dwarika Prasad, however it was Waziri Lal, who had actually purchased the property in the name of Dwarika Prasad and, therefore, plaintiff Waziri Lal had become owner of the same.

6. The Trial Court, after analyzing oral and documentary evidence led by the parties, arrived at a conclusion that plea of benami transaction could not be established and, consequently, dismissed the suit.

7. The decree has been reversed by the first appellate court and the issue no.1, which is germane to the controversy involved, was decided against the defendant-appellants holding that the sale deed of 1942 was a benami transaction. Consequently, the appellate court held Waziri Lal as true owner of the property and has drawn the decree against the defendant-appellants.

8. The instant second appeal was admitted by order dated 17.05.1979 on the grounds No.5, 8, 9 and 10 contained in the memo of appeal. The said grounds are quoted hereunder :

"5. Because it having been admitted to Wajiri Lal- plaintiff, that he did not know, who had written the letters purported to have been sent by Dwarika Prasad, Smt. Kamlawati and Sri Ram Narain to him, the said letters were not legally proved in this case and the learned lower appellate Court has wrongly placed reliance on the same.

8. Because the lower appellate court has completely misread the evidence on record to arrive at the conclusion that the sale deed in favour of Lal Dwarika Prasad was a Benami transaction.

9. Because the onus to prove that the property purchased in the name of Lal Dwarika Prasad was Benami was heavily on the plaintiff, who having failed to discharge the same, the finding of the lower appellate Court is erroneous.

10. Because documents on record substantially proved without any doubt that Wajiri Lal himself was not possessed of any means nor he had any source of income, from which he could have purchased the accommodation in dispute, inasmuch as it was not possible for him even to provide for the tuition fee for his son, who had to be taken out from the School for non-payment of the tuition fee."

9. The submission of learned Senior Counsel is that not only necessary pleadings but also entire evidence led by the plaintiff-respondent was lacking in the sense that it was not stated in the plaint that sale consideration in relation to the sale deed of 1942 had been paid by the plaintiff. It is further contended that as far as evidence is concerned, the first appellate court discussed various letters on record and arrived at a conclusion that