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State Of U.P. v. Smt. Shanti Devi - FIRST APPEAL No. 179 of 1981 [2007] RD-AH 14191 (17 August 2007)


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Court No.1/Reserved

First Appeal No. 179 of 1981

State of U.P ......Appellants        versus

Smt.Shanti  Devi & others .......Respondents


Hon'ble Prakash Krishna,J

The present appeal is against the judgment and decree dated 5.12.1980 passed  by the 4th Additional  District Judge,  Farrukhabad in OS No. 180 of 1978.

The Tahsildar, Farrukhabad attached two properties namely house No. 5/15 Mohalla Naraindass Ki Gali and House No. 2/26                                 for recovery of Rs.97,500/- as sales tax dues outstanding  against Ram Autar.  Smt. Shanti Devi (mother of Ram Autar)  instituted  the afore stated suit for permanent injunction  restraining   the State of U.P, Defendant No. 1 therein and its employees and agents from  realizing the sales tax dues of Ram Autar  Gupta  by attachment  and sale of her properties mentioned in Schedule-A of the plaint.  In the said  Schedule-A besides the properties attached  by the  Tahsildar  it includes a third property  described  as Phatak and three shops  situate in Mohalla Katra Ahmadganj, Farrukhabad as bounded therein.  The suit was instituted  on the pleas inter alia that she is owner of the properties mentioned in Schedule-A  of the plaint having purchased them through two sale deed dated 9.5.1961 and 30.8.1965 from her Stridhan  for a valuable  consideration.  She claimed that she is owner  in possession of afore stated properties and Ram Autar Gupta , his brother and father have nothing to do  with those properties.

It was further pleaded that the alleged  sale tax dues due from Ram Autar Gupta cannot be realized from the  properties mentioned in Schedule-A which belonged to her and the attachment by the Tahsildar  is wholly illegal , wrong and without jurisdiction.  In the suit besides the U.P State, the plaintiff impleaded her husband and sons including Ram Autar Gupta as defendants  No. 2 to 5.  

The suit was contested by the defendant No. 1 namely  State of U.P only.  It was pleaded in the written statement that the disputed properties were purchased by Prem Chandra, husband of the plaintiff out of joint family  funds.  In other words it was pleaded that Prem Chandra Gupta (Defendant No. 2), Smt. Shanti Devi(Plaintiff), Ram Autar Gupta, Satish Chandra Gupta

and Promod Kumar Gupta have  a joint family and the sale deed  standing in the name of plaintiff  is only benami.  To put it differently Smt. Shanti Devi  is not the real owner of the disputed properties but as a Benamidar,  it was pleaded.

At the  subsequent stage of suit,  the plaint was got amended and a further plea was raised  that in  case it is found that the fund was provided by the plaintiff's husband, it shall be deemed a gift by him to the plaintiff.

The plaintiff in support of her case filed the certified copies of the sale deed dated 9.5.1961 (Ext. - 81) and sale deed dated 30.8.1965 (Ext.-  82).  She examined herself  as PW-1 and one Suresh Chandra.  She also filed  number of other documents  such as municipal assessment relating to disputed properties  including the receipts issued by Nagar Palika, Farrukkabad showing the payment of house tax etc.  The defendant No. 1  on the other hands filed two sales tax assessment orders for the assessment year 1971-1972 and 1972-1973 against Ram Autar Gupta.

The Trial Court framed nine issues and decreed the suit  on the findings that the plaintiff is the owner in possession of the disputed properties and she had purchased them from her Stridhan and a suit is not bad for not giving notice under section 80 C.P.C. The said decree is under challenge in the appeal.

Heard the learned standing counsel for the appellant.  None appeared to oppose the appeal.  The learned standing counsel submits that the Trial Court has wrongly held that the plaintiff is the owner of the disputed properties.   The Trial Court wrongly refused to look into the Income Tax record  summoned from the Income Tax Department to show that the plaintiff is only a  Benamidar of the disputed properties, submits the learned standing counsel.

The only point mooted  in the appeal is whether the finding  of the Trial Court that the plaintiff is the owner of the disputed properties is against the weight of evidence  on the record.  The plaintiff on whom the initial burden lies has produced the sale deeds  (exhibits 81 & 82).  These sale deeds are in  her favour and there is no dispute in this regard.  She in her deposition has stated that these properties  were purchased by her out of her Stridhan.  She has stated that her father was a man of  financial status  and had four brick-kiln  and was doing contract work as well.  He gave her 30,000/- before his death  and she purchased the disputed properties  out of the said amount.  She has further deposed that her husband and sons are living separately.  In cross examination she states that she purchased the  disputed properties after about a period of six years from the date she got the money from her father.  She also produced one  Suresh Chandra as PW-2 who has corroborated  plaintiff's deposition.   He,  in para-2 of the statement has stated that Plaintiff's husband  Prem Chandra and her sons are living separately and they are doing their independent business.

The case of the plaintiff finds support from the voluminous documentary evidence produced by her in the shape of Municipal Assessments  and  various receipts showing  payment of house tax by her.   As against the evidence of the plaintiff, there is no evidence worth the name on record except the documents summoned from the Income Tax Department.  The Court below has refused to look into the summoned documents on the ground that they are confidential in nature and no opportunity  was afforded to the plaintiff  in her deposition to  explain those documents.  The view taken by the Court below cannot be said to be totally unjustified.  The learned standing counsel has pointed out that in view of the amendment made in the Income Tax Act  the documents  which are summoned ceases to be confidential document.  He submits that Section 137 of Income Tax Act has been omitted with effect from 1.4.1964.  Be that as it may, since the true copies of these documents were not produced by the appellant  nor they were confronted to the plaintiff when she was in the witness box, I find no justification to disagree  with the Trial Court that these documents cannot be relied upon.

In view of above discussion, and in the absence of any material to show that the plaintiff is a benamidar, I agree with the finding of the Trial Court holding that the plaintiff is the owner of the properties  in question.

There is another aspect of the case yet. The sales tax dues were against  Ram Autar Gupta son of the Plaintiff and defendant No. 2  Prem Chandra Gupta.   No principal of law was shown by the  learned standing counsel that  outstanding  sales tax dues against a son can be recovered from the properties of his parents.  On this ground also there is no merit in the appeal.

In the result, the appeal is dismissed but no order as to costs.

Date 17.8.2007

IB (Prakash Krishna)


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