The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial.”: High Court of Sikkim  

The procedural right of the second appeal is conferred by this section on either of the parties to a civil suit who has been adversely affected by the decree passed by a civil court and the same issue was held in the judgement passed by a single bench judge HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE. In the matter, Ashok Kumar Subba versus  Bimal Kumar Jain & Another  [RSA No.03 of 2018 ] dealt with an issue mentioned above.

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, 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, Respondent No.2 failed to file any response to the Appellant‟s Counter-Claim and to deny his averments, she merely filed an Evidence-on-Affidavit in an attempt to establish that she was the owner of the land and building in which the suit property was housed.

Learned Counsel Mr S.S. Hamal, for Respondent No.1, per contra, contended that both the Courts below had come to a concurrent finding which brooks no interference in consideration of the failure of the Appellant to fortify his claims of ownership of the land and the building on it. It is his contention that the dispute between the Respondent No.2 and Respondent No.1 had, in fact, already been settled when the Appellant sought to be impleaded as a party to the Title Suit at that juncture, claiming ownership of the suit property, sans documents of registration. That, it is an admitted fact that the entire building was registered in the name of Respondent No.2 as also the land on which it stood, thereby indicating her ownership. She had sold the suit premises to Respondent No.1. That, although subsequently, a claim of the building being Benami property was raised by the Appellant, he failed to prove this aspect in terms of Section 2 of the Prohibition of Benami Property Transactions Act, 1988, hence his case requires no consideration.

The court perused the facts and arguments presented The Appellant has not drawn the attention of the Learned Courts below or this Court to any document relied on by him to reveal a paper trail of his income and the subsequent transactions. In the absence of any documentary evidence, the mere statement of the Appellant that he was the purchaser of the property cannot be treated as gospel truth neither can the property be said to be Benami in view of the nonfulfilment of the afore-extracted provisions of law.

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Judgment reviewed by Sakshi Mishra

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