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TMI Blog2022 (3) TMI 1611X X X X Extracts X X X X X X X X Extracts X X X X ..... than five years before the date of filing of the original Suit?‟ 2. At the outset, when the matter was taken up for hearing by this Court, Learned Counsel for all the parties in mutual agreement submitted that the only substantial question that was required for determination herein was "Question No.B" supra. In light of the said submissions, the discussions and decision of this Court shall hereafter be confined to the substantial question of law framed in "B" reflected supra. 3.(i) Learned Counsel Mr. Sajal Sharma opening his arguments for the Appellant submitted that the Appellant on being impleaded as a party to the Title Suit, as Defendant No.2, on his prayer, in his Written Statement and Counter-Claim averred that he was the absolute owner of the land which he had purchased and constructed a five and a half storeyed building which houses the suit property as well. That, the Defendant No.1-the Respondent No.2 (herein) had no independent income as established by the document, Annexure D2-1, her Affidavit, disclosing that she was a housewife and was thus not in a position to either purchase land or construct a building thereon. That, the Respondent No.2 failed to file an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel for the Respondent No.1, contended that the claim of benami transaction raised by the Appellant is not buttressed by law. That, during the cross-examination of the Appellant, he had admitted that the Respondent No.2 took cash credit facility of above Rupees One Crore and that she alone had repaid the Loan taken for purchase of the land and construction of the building. In the face of such admission, nothing further remains for determination as the Appellant‟s source of income has not been divulged. That, to the contrary, Exhibit D1-1 reveals the registration of a Firm "Golma Trading Agency" in the name of the Respondent No.2 and establishes the fact of her independent income. Exhibit D1-3 is the Trade License in her name and Exhibit D1-4 reveals that she was running a hotel in the said building, besides income accrued to her from the lottery business in which she was a 50% stakeholder, which has been admitted by the Appellant. Relying on the ratio of the Delhi High Court in Brij Prakash Gupta vs. Ashwini Kumar [2020 (209) AIC (Delhi High Court), dated 06.02.2020], Learned Counsel contended that where Evidence-on-Affidavit is filed without pleadings by one par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch she with her tentants was to vacate by 20.03.2013. R-1 claimed that as he had purchased the suit premises bona fide, hence the Notice issued under the SARFAESI Act, 2002, to R-2 was not applicable to him. His prayers in the Plaint inter alia sought a declaration that the Agreement of Sale, dated 27.03.2008 is a valid and legal Agreement, binding on the R- 2 and the Appellant impleaded as Defendant No.2, in the Title Suit, vide an amended Plaint. (iii) The R-2 filed her Written Statement denying and disputing the claims made by R-1. Her stand was that Exhibit 1 was only an Agreement for Sale and the property in question had not been sold outright. The entire amount of Rs. 19,80,000/- (Rupees nineteen lakhs and eighty thousand) only, had not been paid by R-1 to her. She also made a Counter-Claim wherein she contended that R-1 was a non-Sikkimese and not permitted to purchase the suit property rendering Exhibit 1 a void document. That, consequently he was instead required to pay monthly rent at the rate of Rs. 30,000/- (Rupees thirty thousand) only and enter into a fresh Tenancy Agreement. She inter alia prayed that Exhibit 1 be declared null and void. (iv) The Appellant, implead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For Issue No.2, while discussing Revenue Order No.1 of 1917, the Learned Trial Court observed that the Order provides that sale shall not be made of "Bhutia, Lepcha" land to any other community but did not include "Tribal‟ in it. That, there was no illegality in Exhibit 1 conferring ownership on the R-1 neither was he barred from purchasing and holding the suit property, hence, the Issue stood decided against the Appellant. The Counter-Claim of the Appellant stood dismissed and R-1 was allowed the reliefs claimed. (ii) The Appellant herein was also the Appellant before the Learned First Appellate Court, which agreed with the findings of the Learned Trial Court in all the Issues and concluded that there was no infirmity, impropriety and illegality in the Judgment and Decree rendered by the Learned Trial Court, hence the instant Appeal. 7.(i) Taking up the substantial question of law "B" formulated for determination herein, in the first instance Order VIII Rule 6A of the CPC provides for filing of Counter-Claim by the Defendant, which the Appellant has done in the Title Suit. However, once this right has been exercised, it is the duty of the Defendant to produce documents up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also established law that the Plaintiff or the Defendant (filing a Counter-Claim) has to establish their own case by a preponderance of probability and cannot rely on the weaknesses of the case of the opposite party, his case must stand on its own strength. The Appellant has failed on this count. (iii) It is an admitted fact that R-2 chose not to file a Written Statement to the Counter-Claim of the Appellant and thus did not comply with the mandate of law. It is also an admitted fact that the Appellant in support of his Written Statement and Counter- Claim filed Exhibit D2-1 to Exhibit D2-106. No reference whatsoever was made to these documents during the course of arguments before this Court. In any event, the Exhibits reveal that they are of no assistance to the Appellant even to establish a prima facie case. Annexure D2-1 being a document which the Appellant chose not to exhibit, cannot be relied on or considered by this Court. The Appellant has filed no document to fortify his claim of purchase and ownership of the building and the land on which it stood. On this point, the Hon'ble Supreme Court in Union of India and Others vs. Vasavi Cooperative Housing Society Limited and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was concluded inter alia as follows; "24. ............the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled: (a) to cross-examine the plaintiff's witnesses; and (b) to address argument on the basis of the plaintiff's case. We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross- examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses. 25. For reasons mentioned above, we allow the appeal and restore the suit before the trial Judge for being proceeded with in the light of the above conclusions. We direct that the costs of this appeal will form part of the costs in the suit and will abide by the result thereof." (Emphasis supplied) (v) Although R-2 failed to file he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment of the loan. He further stated as under, "......It is true that a hotel by the name of "Golmaheem‟ was registered in the name of def. no.1 as the sole proprietor and the same was being run by her which was subsequently leased out. ......It is not a fact that I had not purchased suit land and constructed a five and half storied building solely out of my own earnings. It is not a fact that the def. no.1 had an independent source of income and the suit land was purchased and subsequently the 5 and a half storied building was constructed by her. ......" (Emphasis supplied) Despite these categorical claims by the Appellant during cross- examination, it is reiterated that he had no document to buttress his claims of ownership, hence, even if the evidence of R-2 is to be blindsided by this Court in view of the ratio of the Hon'ble Supreme Court above, the Appellant has failed to establish even a prima facie case. The cross-examination conducted by R-2 has therefore demolished the stand of the Appellant in totality. 8. We may now relevantly refer to the provisions of the Benami Transactions (Prohibition) Amendment Act, 2016, in view of the assertion made by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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