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2020 (3) TMI 1106 - HC - Benami PropertyBenami transaction - the plaintiff failed to prove that money was paid from the fund of the joint family of the plaintiff and defendant No.1 - As urged that the plaintiff failed to prove that money was paid from the fund of the joint family of the plaintiff and defendant No.1. - maintainability of the suit - HELD THAT:- In the instant case when the defendant abandoned the issue of maintainability of the suit on the point of inconsistent plea of title by the plaintiff and again right of tenancy over the self same property, the defendant cannot challenge the maintainability of the suit at the stage of first appeal. Mr. Saha also refers to the decision of this Court in Smt. Minati Sen @ D.P. Sen vs. Kalipada Ganguly [1997 (6) TMI 366 - CALCUTTA HIGH COURT] in the said report the respondent raised an issue that both the Courts below did not consider as to whether the defendant/appellant was guilty for damaging the suit property by addition and alteration. This Court found that the said issue was not pressed by the plaintiff/respondent in the trial court and held that when the issue was not pressed by the plaintiff/respondent in the trial court, there was no justification for the appellate court to go into this question and decide the same in favour of plaintiff/respondent. When a party has raised an issue in the trial court and deliberately has abandoned it, he cannot be allowed to raise it again at the appellate stage. Order VII Rule 7 of the Code of Civil Procedure authorizes the appellant to claim a relief in the alternative on the facts stated in the plaint and it is open to him to pray even for inconsistent relief. But it must be shown by the plaintiff that each of such pleas is maintainable. In the instant case, as gone through the plaint time and again. In paragraph 8 of the plaint, the plaintiff/respondent stated as to how the consideration money was paid to purchase the suit property in the name of defendant No.1. In paragraph 12 of the plaint the plaintiff stated that since the suit property stood in the name of the defendant No.1 and in order to avoid future complications the defendant No.1 settled 2/3rd share of the suit property in favour of plaintiff and proforma defendant No.2 at yearly settlement of ₹ 9/- by executing a registered deed of settlement on 10th January, 1955. Thus agreement with the learned Advocate for the respondent that the respondent claimed title in respect of 1/3rd share of the suit property on the basis of the said registered deed of settlement executed by the defendant No.1. Whether finally published Record of Rights in respect of the suit property would disentitle the plaintiff to institute a suit for declaration of title? - In Jharna Ghosal vs. Satyendra Prosad Dhar [1978 (1) TMI 178 - CALCUTTA HIGH COURT] held that Section 57B of the said Act did not either expressly or by necessary implication exclude the jurisdiction of civil courts to decide questions of title. No substantial question of law involved in the instant appeal and this appeal is liable to be dismissed on contest, however without cost.
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