PERMOD KOHLI,J - (1.) WHEN this appeal came to be admitted on 16.1.1984, no substantial question of law was framed. During the course of hearing, the appellant filed a memo containing alleged substantial questions of law which are reproduced hereunder : "1. Whether the learned lower appellate court erred in law in reversing the well considered and well reasoned judgment of the learned trial court by misreading and mis-interpreting oral and documentary evidence on record ? 2. Whether the findings of learned lower appellate court on issue No. 1 are preverse because documents Ex. P6 has been misread showing that the plaintiff is shown in occupation of land in dispute as vendee whereas learned lower appellate court has observed that plaintiff is shown as tenant ? 3. Whether the finding of the learned trial court on issue No. 1 that the plaintiff is owner in possession of land in suit and defendant was only Benamidar are correct and based on documentary evidence and the learned lower appellate court wrongly reversed these findings on erroneous grounds by mis- interpreting the oral and documentary evidence ? 4. Whether the finding of the learned trial court on issue No. 1 are correct and the learned lower appellate court reversed these findings on erroneous grounds ? 5. Whether protection under Section 53-A of Transfer of Property Act is available to the appellant/plaintiff and the findings of the learned lower appellate court on this point are contrary to law and liable to be set aside?"
(2.) DURING the course of arguments, learned counsel for the appellant primarily concentrated on the document dated 18.10.1970 (Ex. P1). Briefly stated the facts of the case are that the present appellant filed suit for declaration claiming to be owner in possession of the land measuring 17 kanals and 19 marlas comprising in Khewat/Khatoni No. 16/25 Killa Nos. 10/13(6-19), 18(8-0), 23/1(3-0) situated in village Yusafpur Allewal, Tehsil Nakodar, District Jullundur and for permanent injunction restraining the defendant from interfering in plaintiff's possession. The claim for ownership is based upon the fact that the plaintiff allegedly paid 1/2 of the consideration amount about 12 years back to the defendant for purchase of 40 kanals of land which was allotted to the defendant in auction. It is alleged that 40 kanals of land was allotted to the defendant by Government, but he had no money to pay the installments and he approached the plaintiff for money to the installments with this understanding that plaintiff will be entitled to 1/2 of the share of the land. The sale certificate was issued in the name of the defendant for the entire land, though the plaintiff paid half of the sale consideration i.e. Rs. 2,500/-. It is also stated that the name of the plaintiff is entered in the Jamabandi for the years 1976-77 and is also in possession of the land which was given to him by the defendant. The defendant also executed a pronote and receipt for Rs. 2,000/- on 12.6.1975 and another amount of Rs. 500/- was given by the plaintiff to one Lakhbir Singh on behalf of defendant-Gurdas which was borrowed by him to pay the installment. It is also alleged that the document dated 18.10.1970 was executed by the defendant acknowledging the right of the plaintiff over half share in the allotted land and also possession was delivered to him. During the course of the trial, plaintiff proved pronote and receipt PW5/A and PW5/B and also produced witnesses, PW4 Malooka and PW6 Lakhbir Singh who were the witnesses to the pronote and the receipt. Another witness, PW-7 Amarjit Singh, Constable brought Roznamcha of Police Post Lohian dated 21.3.1980 and proved the D.D. Report No. 6 dated 21.3.1980 Ex. PW7/A to establish that plaintiff was in possession of 2-1/2 killas of land for the last 10 to 11 years from the date of the report. On the other hand, defendant produced the sale certificate dated 23.6.1979 issued by the Tehsildar (Sales), Ex.D1, Report Roznamcha (Ex.D2), Ex. 133, copy of khasra Girdawari, Ex. D4, copy of order of Naib Tehsildar vide which entries in the khasra Girdawari were corrected on 14.7.1980. It has come on record that against the correction of khasra Girdawaris in favour of defendant vide the aforesaid order dated 14.7.80, an appeal was preferred by the plaintiff before the Collector which was pending at the time of decision of the suit on 16.4.1981. On the basis of the aforesaid material on record, the trial Court decreed the suit of the plaintiff and declared him to be entitled to half of the share in the allotted land and the defendant was declared as Benamidar. Consequently, defendant was restrained from interfering in the peaceful possession of the plaintiff over the land and from alienating the same in any manner. Defendant's appeal against the aforesaid judgment and decree of the trial court succeeded before the Additional District Judge, Jalandhar who reversed the findings of the trial Court, both on the question of ownership as also possession and dismissed the suit vide judgment and decree dated 11.8.1983. It is against this judgment and decree that the plaintiff has come in appeal before this Court.
(3.) WHEN this appeal came up for consideration on 17.10.2007, it was argued that in view of the Benami Transactions (Prohibition) Act, 1988, no claim of any person can be entertained on the ground that he is real owner and some one else is holding the property as Benami and reliance was placed on the case of Om Parkash and another v. Jai Parkash, 1992(1) RCR(Rent) 518 : 1993(1) RRR 417 : AIR 1992 SC 885. It was argued that the aforesaid Act applies to the pending appeals. However, later on when this matter was again taken up on 12.12.2007, another judgment passed in the case of R. Rajagopal Reddy (Dead) by Lrs. and others v. Padmini Chandrasekharan (Dead) by Lrs., (1995)2 SCC 630, was brought to the notice of this Court wherein Hon'ble Supreme Court held that Section 4 of the aforesaid Act has no retrospective operation and does not apply to pending suits already filed prior to coming into force of Section 4. In the case of Om Parkash (supra) following observations have been made : "8...... In our view, Section 4 of the Benami Act is a total prohibition against any suit based on benami transaction and the plaintiff- respondent is not entitled to get any decree in such suit or in appeal." ;