# Padam Prakash Gupta v. Chhotey Lal

- **Citation:** (2023) 8 ILRA 171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-09
- **Case number:** Second Appeal No. 1555 of 1983
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/padam-prakash-gupta-v-chhotey-lal-50573
- **Pages:** 6

## Headnote

Law
-
The
Code
of
Civil
Procedure, 1908 - Section 100 - Second
172 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal - Original Suit filed by plaintiffrespondent - against his own brother -
allegations in plaint - plaintiff-respondent and
defendant real brothers - proposed to purchase
plot jointly - plaintiff negotiated sale with the
owner - agreed to sell plot in question for a
consideration of Rs. 20,000/- - agreement to
sell was also executed between plaintiff and
owner - plaintiff-respondent paid from time to
time - obtained receipts of amounts - which
were paid to proposed seller - receipts find
mention in plaint - plaintiff had paid all money -
paid before sale deed was executed - payment
of Rs. 4,000/- on 24.6.1972 not denied in any
manner by defendant/appellant - First Appellate
court found that these receipts were there -
reason given by Trial Court to disbelieve the
payment was disbelieved by First Appellate
Court in toto - defendant did not mention the
payments made in their written statement -
responded to their notice before filing the
suit.(Para - 2,3,17)

HELD:- Plaintiff proved the plaint allegation to
the
hilt.
First
Appellate
Court's
findings
unassailable. Substantial question of law framed
not required to be answered due to the First
Appellate Court's findings. Second Appeal is
concluded by findings of fact.(Para-17,18)

Second appeal dismissed. (E-7)

List of Cases cited:-

## Text

8 All. Padam Prakash Gupta Vs. Chhotey Lal
171
Andhra Pradesh High Court in Rayala M.
Bhuvaneswari Versus Nagaphanender
Rayala, AIR 2008 AP 98 have not taken
into consideration the above referred law
laid down by the Hon'ble Supreme Court
and, therefore, those are per incuriam
judgments and those are not binding
precedents.

26. Therefore, whether the telephonic
conversation between the two accused
persons was intercepted or not and whether
it was done legally or not, would not affect
the
admissibility
of
the
recorded
conversation in evidence against the
applicant.

27.

Moreover,
the
telephonic
conversation recorded in the digital voice
recorder is not the solitary evidence relied
upon by the prosecution and it appears that
the prosecution proposes to produces other
evidences as well during trial.

28. In Gayatri Prasad Prajapati vs.
Directorate of Enforcement 2023 SCC
OnLine All 376, this Court held that: -

"the law regarding the approach
to be adopted by the court while
considering an application for discharge of
the accused persons under Section 227 and
approach while framing charges under
Section 228 of the Code, is that while
considering an application for discharge of
the accused under Section 227 of the Code,
the Court has to form a definite opinion,
upon consideration of the record of the
case
and
the
documents
submitted
therewith, that there is not sufficient ground
for
proceeding
against
the
accused.
However, while framing charges, the Court
is not required to form a definite opinion
that the accused is guilty of committing an
offence. The truth of the matter will come
out when evidence is led during the trial.
Once the facts and ingredients of the
Section exist, the court would presume that
there is ground to proceed against the
accused and frame the charge accordingly
and the Court would not doubt the case of
the prosecution."

29. In the present case, no such
material or ground is present from which
the Court may form a definite opinion that
there no sufficient ground for proceeding
against the applicant. Therefore, I do not
find any illegality in the order rejecting the
discharge
application
filed
by
the
revisionist.

30. The revision lacks merit and the
same is, accordingly, dismissed.
----------
(2023) 8 ILRA 171
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 1555 of 1983

Padam Prakash Gupta ...Appellant
Versus
Chhotey Lal ...Respondent

Counsel for the Appellant:
Sri M.P. Bajpai, Sri A.K. Rai, Sri Amit
Sharma, Sri P.N. Saxena, Sri P.N. Saxena,
Sri Padmaker Pandey, Sri Suresh Chandra
Varma, Sri V.K. Singh, Sri Vishnu Kumar
Singh

Counsel for the Respondent:
Sri R.C. Shukla, Sri Lalji Sinha, Sri Pankaj
Bhatia, Sri Pankaj Bhattia, Sri R.K. Mishra

(A)
Civil
Law
-
The
Code
of
Civil
Procedure, 1908 - Section 100 - Second
172 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal - Original Suit filed by plaintiffrespondent - against his own brother -
allegations in plaint - plaintiff-respondent and
defendant real brothers - proposed to purchase
plot jointly - plaintiff negotiated sale with the
owner - agreed to sell plot in question for a
consideration of Rs. 20,000/- - agreement to
sell was also executed between plaintiff and
owner - plaintiff-respondent paid from time to
time - obtained receipts of amounts - which
were paid to proposed seller - receipts find
mention in plaint - plaintiff had paid all money -
paid before sale deed was executed - payment
of Rs. 4,000/- on 24.6.1972 not denied in any
manner by defendant/appellant - First Appellate
court found that these receipts were there -
reason given by Trial Court to disbelieve the
payment was disbelieved by First Appellate
Court in toto - defendant did not mention the
payments made in their written statement -
responded to their notice before filing the
suit.(Para - 2,3,17)

HELD:- Plaintiff proved the plaint allegation to
the
hilt.
First
Appellate
Court's
findings
unassailable. Substantial question of law framed
not required to be answered due to the First
Appellate Court's findings. Second Appeal is
concluded by findings of fact.(Para-17,18)

Second appeal dismissed. (E-7)

List of Cases cited:-

1. Bans Narain Vs Chandrani Kuer, 1944 0 AIR
Alld 130

2. P. Satyanarayan Murthi Vs The St. of A.P. , JT
1992 (4) 454

(Delivered by Hon'ble Siddhartha Varma, J.)

1. The instant second appeal has been
filed by the defendant for the setting aside
of the judgement of the First Appellate
Court dated 18.3.1983 passed in Civil
Appeal No. 477 of 1981.

2. A suit being Original Suit No. 249
of 1978 was filed by one Chhotelal Gupta,
the plaintiff-respondent against his own
brother Sri Padam Prakash Gupta. The
allegations in the plaint were that the
plaintiff-respondent and the defendant who
were real brothers and had a great affection
for each other proposed to purchase a plot
no. 290, Block K Scheme II, Kidwai Nagar,
jointly. It has been alleged in the plaint that
the plaintiff negotiated the sale with the
owner Smt. Ahmadi Begam who had
agreed to sell the plot in question for a
consideration of Rs. 20,000/- and for that
purpose, an agreement to sell was also
executed on 15/17.6.1971 between the
plaintiff and Smt. Ahmadi Begam.

3. The plaintiff-respondent's further
case had been that the plaintiff-respondent
had paid Rs. 11,000/- from time to time and
had obtained receipts of the amounts which
were paid to the proposed seller. As per the
plaint allegations, on 17.6.1971 Rs. 1,000/-;
on 14.7.1971 Rs. 4,000/-; on 24.10.1971
Rs. 300/-; on 3.6.1972 Rs. 200/- and on
14.6.1972 Rs. 5,500/- were paid.

4. Further case of the plaintiffrespondent
was
that
considering
the
financial
position
of
the
plaintiffrespondent, the defendant, the brother, had
concluded that making a construction over
the plot would be difficult unless the
defendant
who
was
a
Government
Employee applied for a loan and, therefore,
the sale deed was got executed on
24.6.1972 in the name of the defendant.
The plaintiff-respondent further had stated
that he had again paid a sum of Rs. 4,000/-
to the vendor on the date of the execution
of the sale deed. This amount was the
balance of the consideration which had to
be paid. The plaint allegation therefore is
that the sale deed was executed in the name
of the defendant, benami.
8 All. Padam Prakash Gupta Vs. Chhotey Lal
173

5. The defendant-appellant in the
instant case filed a written statement and
though he admitted his relationship with
the plaintiff-respondent, he denied the other
allegations of the plaint. He had stated that
the plaintiff had earlier entered into an
agreement with Smt. Ahmadi Begam but
when he could not make the payment then
the defendant had agreed to buy the
property from Smt. Ahmadi Begam. He
further claimed that he paid Rs. 6,000/- to
Smt. Ahmadi Begam on 12.6.1972 before
the execution of the sale deed and that he
had paid Rs. 9,000/- at the time of the
execution of the sale deed and, therefore,
he claimed that he was the sole owner of
the plot in question. He claimed that he was
buying the land at Rs. 15,000/- which was
earlier being sold to the brother for Rs.
20,000/-.

The Trial Court framed three
issues which were as follows:-

1. Whether the plaintiff is coowner of the disputed plot no. 290 situated
in Block K, Scheme II, Kidwai Nagar, as
alleged in Plaint?

2. Whether the defendant is the
exclusive owner of the disputed plot as
contended in written statement.

3. To what relief, if any, is the
plaintiff entitled?

6. With regard to issues no. 1 and 2,
the Trial Court held that the defendant was
the actual owner of the plot no. 290 situate
in Block K, Scheme II, Kidwai Nagar, and
decided the issues in favour of the
defendant and against the plaintiff. In view
of the finding so given, the Suit was
dismissed 28.4.1981.

7. The plaintiff filed an Appeal which
was numbered as Civil Appeal No. 477 of
1981. The Appellate Court looked into the
evidence de-novo and concluded that the
plaintiff had a case and, therefore, allowed
the appeal and decreed the Suit. While
decreeing the Suit it formulated a point for
determination which was whether the
plaintiff is a co-owner of the disputed plot
or not. The First Appellate Court adverted
to the various documentary evidence and
also to the oral evidence which were there
on record. The First Appellate Court upon
looking at exhibit -1 which was the
agreement to sell entered into between Smt.
Ahmadi Begam and the plaintiff found that
the agreement was there and that it further
showed that a sum of Rs. 5,000 was paid in
advance out of which Rs. 1,000/- was paid
to Smt. Ahmadi Begam at the time of the
execution of the deed itself on 17.6.1971.
The First Appellate Court further relied
upon the exhibit-11 which was the receipt
of Rs. 4,000/- and concluded that Rs.
4,000/- were again paid to Smt. Ahmadi
Begam on 4.7.1971. This receipt was at the
back of the agreement deed itself. The First
Appellate Court relying upon the exhibit -
4 which is a letter dated 24.10.1971 by
Smt. Ahmadi Begam to the plaintiff held
that, in fact, Rs. 300/- more were paid to
Smt. Ahmadi Begam by the plaintiff. By
adverting to exhibit - 8, the Appellate
Court found that the seller Smt. Ahmadi
Begam on 3.6.1972 had prayed for time for
getting permission from the Nagar Palika
and that she had also requested the plaintiff
to give to her Rs. 200/- for meeting petty
expenses and by that letter she had also
expressed her willingness to adjust that
amount towards the sale consideration. In
fact on 3.6.1972 by exhibit - 9, Smt.
Ahmadi Begam had also executed a receipt
in favour of the plaintiff. Exhibit - 10 was
relied upon by the First Appellate Court to
conclude that on 13.6.1972 the seller had
asked the plaintiff to further advance to her
Rs.5,500/-. The exhibit -11 was the receipt
174 INDIAN LAW REPORTS ALLAHABAD SERIES
issued by her upon the receipt of Rs.5,500/-
. Thereafter, the sale deed was executed on
24.6.1972 i.e. after 10 days of the payment
of Rs. 5,500/- by the plaintiff to Smt.
Ahmadi Begam.

8. The First Appellate Court also
relied upon the statements of the plaintiffP.W.-1 and the P.W. 2 Sri Roop Narayan
Bajpayee to conclude that the plot was
purchased by both the brothers and that the
plaintiff had paid Rs. 15,000/- for the
purchase of the plot. The First Appellate
Court upon looking into the documentary
evidence as were filed by the plaintiff and
by the defendant concluded that the
agreement was executed between the
plaintiff and Smt. Ahmadi Begam for the
sale of plot. The receipts clearly went to
show that the plaintiff from time to time
was investing money for the purpose of
getting the sale deed executed and that
since the receipts could not be disbelieved
it was concluded that Rs. 11,000/- were
paid by the plaintiff to Smt. Ahmadi Begam
before the sale was executed.

9.

The
First Appellate
Court
disbelieved the statement of the defendant
which had stated that the plaintiff had not
been able to raise resources enough for
purchasing the plot and, therefore, he had
sent words to him for negotiating the sale
with Smt. Ahmadi Begam. The First
Appellate Court found that Rs. 5,500/-
were paid on 14.6.1972 and if the plaintiff
was unable to proceed with the transactions
then it would have taken some time for the
defendant to collect money and to enter
into the transaction. The First Appellate
Court also disbelieved the statement of the
defendant that he had paid Rs. 6,000/- to
Smt. Ahmadi Begam before the date of the
sale and that the amount was brought by his
wife after she had taken it from her mother
at Hardoi. The First Appellate Court
refused to believe this statement of the
defendant as the receipt of Rs. 5,500/- on
14.6.1972 was in favour of the plaintiff and
if the wife of the defendant had brought
that amount for being paid to Smt. Ahmadi
Begam then she would have resented to the
execution of the receipt in favour of the
plaintiff (exhibit-12). The First Appellate
Court also disbelieved the payment of Rs.
5,500/- by the wife of the defendant as this
fact was also not stated in the sale deed.

10. Further, the First Appellate Court
disbelieves the statement of the defendant
saying that he had paid Rs. 6,000/- through
his wife because when the plaintiff had sent
the defendant a notice before the filing of
the suit and when the defendant had replied
to it on 5.8.1977, he had not mentioned
anything about the giving of Rs. 6,000/- by
his wife to Smt. Ahmadi Begam. In the
reply to the notice though the allegation
was that the relationship between the two
brothers were strained, there was no
mention about the fact that the defendant's
wife had paid Rs. 6,000/- to Smt. Ahmadi
Begam.

11. Another reason for the Trial to
conclude that the plaintiff had not paid the
money was the statement of the bank
account of one Chhotelal of the Hindustan
Commercial Bank. The First Appellate
Court re-assessed the evidence and had
given a finding of fact that the Bank
account which the Trial Court had relied
upon was of some other Chhotelal,
different from the plaintiff and therefore no
reliance on the bank account of that
Chhotelal could be placed. The First
Appellate Court also disbelieved the
statement of Smt. Phoolmati Devi, the
mother-in-law of the defendant. It also
disbelieved the statement of DW-5, the
8 All. Padam Prakash Gupta Vs. Chhotey Lal
175
contractor of PWD who had stated that he
had lent Rs. 5,000 to the defendant and
therefore the First Appellate Court, upon
finding that definitely a large amount of
money had been paid by the plaintiff,
concluded that the plaintiff had also
contributed towards the sale consideration
and decreed the Suit and declared the
plaintiff a co-owner of the disputed plot.
When the second Appeal was filed, this
Court had framed a question of law which
was to the following effect:

" The substantial question of law
involved in the case is whether the finding
of the lower Appellate Court that the
plaintiff is the co-owner in the plot of land
in Suit, although it was purchased in the
name of the defendant-appellant alone, is
vitiated in law."

12. Learned counsel for the appellant
Sri S.C. Verma assisted by Sri Padmakar
Pandey argued that a transaction could not
be partly Benami and partly genuine.
Learned counsel for the appellant further
argued that the first appellate court had
wrongly interpreted the decision reported in
1944 0 AIR Allahabad 130 (Bans Narain
vs. Chandrani Kuer). Learned counsel for
the appellant further submitted that there
was a definite burden upon the plaintiff to
prove the plaint allegation that the
transaction was a Benami one and in this
regard, he has relied upon a judgement of
the Supreme Court reported in JT 1992 (4)
454 (P. Satyanarayan Murthi vs. The
State of Andhra Pradesh). Learned
counsel further stated that the plaintiff and
the defendant could not have agreed that
the plot would be purchased in the name of
the
defendant
for
the
purpose
of
construction of the building on the plot in
question. He submits that the defendant
was still a temporary employee and a
temporary employee never gets a loan.
Learned
counsel
for
the
defendant/
appellant further submitted that the plaintiff
had not provided any proof of the source of
his income.

13. Learned counsel for the plaintiffrespondent Sri. R.K. Mishra, however,
submitted that the receipts which were
there on record dated 17.6.1971 for Rs.
1,000/-,
4.7.1971
for
Rs.
4,000/-,
24.10.1971 for Rs. 300/-, 3.6.1972 for Rs.
200/- and 14.6.1972 for Rs. 5,500/- were
definitely there on record. These receipts
had gone unrebutted. He further relied upon
the findings of the First Appellate Court
and has submitted that none of the receipts
were denied and also the signatures of the
receipts of Smt. Ahmadi Begam were not
denied.

14. Learned counsel for the plaintiffrespondent has also submitted that the loan
was applied after the defendant had become
a permanent employee and, therefore, the
case which the plaintiff had taken that the
defendant' name was there on the sale deed
for the purposes of getting a loan gets
credence.

15. Learned counsel for the plaintiffrespondent also submitted that defendant
had not filed any documentary evidence to
show that he had contributed towards the
sale consideration. He submits that the
finding of the First Appellate court that the
story of the wife bringing some money was
disbelieved was a finding of fact which
could not be disturbed by this Court. He
also reiterates the reasons given by the First
Appellate Court for disbelieving this
finding and he laid much stress upon the
fact that when the defendant had replied to
the notice given by the plaintiff before the
filing of the Suit, he had not mentioned
176 INDIAN LAW REPORTS ALLAHABAD SERIES
about the payment of the Rs.6,000/- which
had been allegedly lent by his mother-inlaw.

16. Having heard the learned counsel
for the defendant -appellant and learned
counsel for the plaintiff-respondent, this
Court is of the view that he Second Appeal
lacks merit and is liable to be dismissed.

17. The plaintiff has proved the plaint
allegation to the hilt. The receipts which
find mention in the plaint; all the money
the plaintiff had paid on 17.6.1971,
4.7.1971,
24.10.1971,
3.6.1972
and
14.6.1972 totalling Rs. 11,000/- which were
paid before the sale deed was executed and
the payment of Rs. 4,000/- on 24.6.1972
have not been denied in any manner
whatsoever by the defendant/appellant. In
fact, the First Appellate has found that
these receipts were there and the reason
given by the Trial Court to disbelieve the
payment have been disbelieved by the First
Appellate Court in toto. What goes further
in favour of the plaintiff is that the
defendant, when had replied to his notice
dated 17.6.1977 before filing of the Suit
had not mentioned about the payments
made by the defendant, as has been alleged
in the written statement, and therefore, this
Court is also of the view that the findings
as have been arrived at by the First
Appellate Court are unassailable. In fact,
the substantial question of law as was
framed on 3.8.1983 by this Court is thus
not required
 to be answered in view of the findings of
the First Appellate Court.

18. The Second Appeal is concluded
by findings of fact. No interference is
warranted and thus the appeal is dismissed.
----------
(2023) 8 ILRA 176
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.08.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

First Appeal From Order No. 551 of 2019

The United India Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Suraj Kala & Ors. ...Respondents

Counsel for the Appellant:
Anil Kumar Srivastava

Counsel for the Respondents:
Ravindra Pratap Singh

A. Civil Law - Motor Vehicle Act, 1988Section 173--Challenge to-In the instant
case, it is found that the policy in
question is an Act Policy-deceased was an
employee
of
the
owner
-The
said
employee was not as if, he was a casual
employee but was a regular driver and
therefore, he would be covered in terms of
Section 147 (1) proviso (a) as mentioned
in the Act- In terms of Section 167 of the
Act option is available for a party to either
file the claim petition before the Claims
Commissioner under the Act of 1923 or
before
the
M.A.C.T.-However,
the
difference would be that if a party chooses
to file his claim before the Motor Accident
Claims Tribunal and the Tribunal awards
an amount which is higher than the
amount which is computed under the
Compensation Act of 1923, then the
liability of the insurance company would
only be to the extent of the amount which
is payable in terms of the Act of 1923 and
the excess amount would be payable by
the owner.-However, if an additional sum
or premium is paid to cover or enhance
the liability, then the entire award would
be payable by the insurance company-In
the instant case, since it was an Act policy
and the Tribunal has also awarded the
amount computing it in context with the