TMI Blog1996 (4) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... . PUNCHHI JUDGMENT The judgment of the court was delivered by K. T. THOMAS J. --- The legal heirs of a plaintiff (Vrajlal J. Ganatra), who suffered defeat both at the original side as well as at the appellate stage (High Court of Gujarat) have filed this appeal by special leave. The defendant in the suit (Parshottam S. Shah) is now being substituted by his legal heirs. The suit relates to a property covered by exhibit-66 sale deed, dated December 16, 1963. It was claimed to be the property of the plaintiff even though the defendant was shown in the document as the vendee. The suit was filed in 1981 for declaration of the plaintiff's title to the suit property and also for an injunction for restraining the defendant from disturbing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property although it might have been thought that if the plaintiff paid the amount which the defendant had shelled out the property would be reconveyed to the plaintiff. We may mention here itself that no contention has been advanced before the High Court that the suit is not maintainable in view of section 4(1) of the Benami Transactions (Prohibition) Act, 1988. By the time the High Court delivered the impugned judgment, the legal position which emerged by virtue of the decision of this court in Mithilesh Kumari v. Prem Bihari Khare [1989] 177 ITR 97 to the effect that section 4(1) of the said Act can apply to suits filed even prior to the coming into force of the said Act stood overruled by the decision of a larger Bench of this court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant had advanced money to him. Learned counsel for the appellant tried to draw support from exhibit-79 sale deed, dated February 22, 1962, which is a deed executed by another person in favour of the defendant. There is no dispute that the purchase money for that transaction was advanced by the defendant and the deed was executed in the name of the defendant. It was an admitted case that the defendant in that transaction was a benamidar. Learned counsel for the appellants, therefore, contended that exhibit-79 not only shows that there were similar dealings between the parties even earlier but it has a perceptible impact on the crucial question relating to the transaction involved in exhibit-66 sale deed. But exhibit-79, far fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant to the plaintiff on December 23, 1975, it is of no avail to the appellants. It is unnecessary for us to go into the other documents referred to by counsel as none of them helps the appellants to establish that the defendant ever entertained the idea that the property should belong to the plaintiff. Learned counsel pointed out that the High Court has failed to decide the question of possession of land and contended that in fact the land was in the possession of the plaintiff and continues to be in the possession of the appellants. The trial court found that the plaintiff had failed to prove that the property was in his possession. The High Court would have considered it superfluous to go into the question of possession. As the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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