TMI Blog1999 (4) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... deed executed on 23.1.1989 (Ext.P.11) Narain Prasad transferred his rights in the suit building to the appellant. On its footing appellant filed Civil Suit No.75-A of 1990 for eviction of the respondent under Section 12(1)(a) of the M.P. Accommodation Act, 1961 (for short the Act ) on the ground that respondent has not paid rent to the appellant. That suit was contested by the respondent raising the contention that the building was actually purchased by Pyarelal (father of the appellant) as per Ext.P11-sale deed and appellant is only a name-lender therein, and hence appellant is not entitled to get the eviction order or the rent of the building. In that suit the court found that appellant is the real owner of the building pursuant to Ext.P.11-sale-deed and that he was entitled to receive rent of the building. However, the suit was dismissed as the respondent deposited the arrears of rent in court during pendency of the suit but appellant was permitted to withdraw the arrears of rent so deposited by the respondent as per the judgment rendered in that suit. Appellant filed the present suit (No. 304-A of 1994) under Section 12(1) (f) of the Act for eviction of the respondent on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that Ext. P.11 is a benami transaction Learned senior counsel further contended that the High Court went wrong in fastening the appellant with the burden of proof to prove that Ext. P.11 is not a benami transaction. Even otherwise, appellant has proved that Ext.P.11 was executed in his favour and he is the real transferee, according to the learned Senior Counsel. Shri S.S. Khanduja, learned counsel for the respondent supported every finding of the High Court and further contended that even if the burden is on the respondent to prove the benami nature of the transaction respondent has succeeded in discharging the burden. Regarding the plea of res judicata learned counsel submitted that it is not available to the appellant. Alternatively he pleaded that even if ownership of the building is found with the appellant he has not made out a ground for eviction under Section 12(1)(f) of the Act. The reasoning adopted by the learned single judge for rejecting the plea of res judicata is the following: Since the suit itself was dismissed, the appellant was not aggrieved and he had no right of appeal. Under such circumstances there could be no question of application of pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has been deposited by the defendant in the court during pendency of the suit. As the plaintiff was permitted to withdraw that amount his grievance in the suit would necessarily have been redressed fully. The rule of res judicata incorporated in section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which has been directly and substantially in issue in issue in a former suit between the same parties , and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdel in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues. The two decisions of the Nagpur High Court relied on by the learned single judge (in the impugned judgment) have followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the pendency of the suit i.e. depositing the arrears of rent claimed by the appellant. The court permitted the plaintiff to withdraw that amount under deposit for satisfying his claim. Such a degree cannot be equated with a case where the suit was dismissed as not maintainable because any adverse finding in such a suit would only be obiter dicta. The finding made in OS 75-A/90 that appellant was the real owner of the building as per Ext. P.11-sale deed became final. If the respondent disputed that finding he should have filed an appeal in challenge of it. We therefore agree with the plea of the appellant that there is bar of res judicata in re-agitating on the issue regarding appellant's title to the building. Alternatively, assuming that the finding in the first suit would not operate as res judicata, the contention of the respondent that Ext. P.11 is a void transaction being hit by Section 3(1) of the benami Act can now be considered. The trial court and first appellate court concurrently found that it is not a benami transaction but the High Court interfered with the said concurrent finding and held that the transaction is void. Learned single judge of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Ext. P.11) as witnesses for the defendant. But it was a risky course of action which he undertook and the risk proved to be costly for him as both witnesses stood by the apparent terms of Ext.P.11 regarding consideration. In other words, both witnesses of the respondent stuck to the version that consideration for the sale was paid by the appellant. It is true that respondent adduced evidence to show that Ext.P.11 was preceded by an agreement entered into between Pyarelal and Narain Prasad for the sale of the suit building. The High Court adverted to the said agreement. But even with that agreement the respondent has only succeeded in showing that Pyarelal had enough money and appellant was not having so much of funds to pay the purchase money for Ext.P.11. Perhaps the said circumstance may lead to an inference that Pyarelal, the father of the appellant, gave money to his son to pay the consideration for buying the property. Section 3(1) of the Benami Act contains the interdict that no person shall enter into any benami transaction. The aforesaid prohibition has been judicially pronounced as prospective only, (vide R.Rajagopal Reddy v. Padmini Chandrasekharan (1995 2 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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