Jayant Patel, J.@mdashThe short facts of the case appears to be that the petitioner filed Lavad Suit No. 3138/76 before the Registrar, Board of Nominee, for the relief inter alia to direct the Society and the defendants Nos. 2 & 3 who are respondents Nos. 2 & 3, herein to handover the vacant and physical possession of tenement No. 7 and for setting aside the action of the Society for transferring of the tenement in favour of defendant No. 3 and the means profit was also prayed. The learned Nominee after trial of the Suit, passed the Judgment and Order, whereby he accepted the claim of the petitioner and directed for entrustment of the vacant possession and also set aside the resolution passed by the Society for transfer of the tenement in favour of defendant No. 3. The defendants Nos. 2 & 3 preferred appeal being Appeal No. 181/86 before the Tribunal against the decision of the learned Nominee. The Tribunal after hearing both the sides, allowed the revision and set aside the order of the learned Nominee. It is under these circumstances, the present petition. Heard Mr. Jinesh Kapadia for Mr. Rawal for the petitioner, Mr. Bhomit Shah for Mr. Ashish Dagli for respondent No. 1 and Mr. Vora for respondents Nos. 2 & 3. Respondent No. 4 is duly served.
2. It appears that the contention of the original plaintiff in the suit was that he is the Member of the Society and the tenement No. 7 was in his name. He got payment made through the defendants Nos. 2 & 3 since he was serving in ONGC and was required to go outside Ahmedabad. It was also the contention of the plaintiff that the transfer of tenement is made by the society without his application in favour of defendant No. 3 and therefore, the action of transfer of tenement by the Society is illegal and since the possession of the defendant No. 3 of tenement No. 7 was unauthorised, he prayed that the possession also be handed over to him.
3. Whereas, the case of the defendant No. 3 was that the plaintiff No. 1 was only a benami holder of the property and the real investment of money is made by defendants Nos. 2 & 3 and rather defendant No. 2 during his lifetime. It was also contended that since there was relation of the defendant No. 2 and the plaintiff No. 1, the tenement/land area was on his name, otherwise, all the payments are made by defendants Nos. 2 & 3 and even in the receipt, the name is shown of defendant No. 2. It was contended that since the plaintiff No. 1 was benami holder, he also executed the document confessing his status as benami and therefore, the application was made for transfer of tenement in favour of defendant No. 3 by defendant No. 2 and the Society has transferred the same. It was submitted that therefore, there is no right in tenement No. 7 of the plaintiff No. 1 and hence, the suit may be dismissed.
4. It appears that the learned Nominee found that the transaction of benami is not proved and he further found that it was a particular scheme for allotment of the plot to the weaker section and family members of defendants Nos. 2 & 3 were holding the plots and the plot was actually held by plaintiff No. 1 and the action of the Society for transferring the plot was illegal. Therefore, the learned Nominee accepted the claim of the plaintiff and decreed the suit. The Tribunal in the impugned Judgement has reversed the Judgement of the learned Nominee.
5. The pertinent aspect is that the Tribunal in the impugned Judgement has proceed on the basis that the plaintiff has failed to prove that he is not holding the property as benami. In a case where the person is holding the property as per the record of the society and is seeking the possession and if the defence of the person who is in occupation of the plot or the tenement is that the plaintiff is the benami of defendant who is in actual possession, the burden would be shifted upon the defendant claiming the status as that of benami. The presumption would be that the person on whose name the property stands would be the owner, but such presumption is rebuttable. It was open to the party claiming the right in the property as the original owner as against the Benami holder by proving that the property actually belonged to him, the consideration was paid by him, the property is held as the owner and it is really his property and not of the person in whose name the property stands, but under such circumstances the burden would be upon such person-real owner.
6. Perusal of the judgement of the Tribunal shows that instead of examining the matter in appeal on the aspects as to whether the burden is discharged by the defendant/appellant before the Tribunal, the Tribunal has taken a reverse view that the plaintiff has not been able to establish that he is not a benami holder. Such in my view can be said as one of the error apparent on the face of the record committed by the Tribunal while exercising the appellate power.
7. The second aspect which the Tribunal has also committed error apparent on the face of record is that since the plaintiff has not been able to prove that the transfer is legal, it has been held against the plaintiff. The Tribunal in the impugned Judgement has recorded the admitted position that in the record of the Society, after the name of the plaintiff No. 2, the name of plaintiff No. 1 stood and it was also an admitted position that no application whatsoever was made by the Member of the Society, viz. plaintiff No. 1 for transferring the tenement in favour of defendant No. 3. Therefore, in view of such an admitted position, if the claim of the defendant No. 3 was that the transfer is validly effected in his favour, the burden would get shifted upon the defendant No. 3 to establish the same and not upon the plaintiff. Had it been a case where the application was filed by the Member of the Society for transfer and the Society having acted upon the same, it may stand on different footing. But in a case where it is an admitted position that the Member has not submitted any application for transfer of the tenement in favour of the anybody and if the defendant No. 3 was to claim the right as having lawfully transferred the property on his name, the burden would be upon the defendant to prove that lawful procedure is undertaken and he has acquired the ownership or the membership lawfully. The Tribunal while examining the said aspects in the impugned Judgement, has proceeded on the basis that the burden is upon the plaintiff and such burden having been not discharged, the Nominee ought not to have accepted the claim. On the contrary, it was required for the Tribunal to weigh evidence keeping in view the burden upon the defendant No. 3, more particularly when it was an admitted position that none of the plaintiff who were on record as the member of the Society submitted any application for transfer. Therefore, such can be said as an error apparent on the face of record committed by the Tribunal while examining the merits of the Appeal.
8. Mr. Kapadia, learned counsel appearing for the petitioner also submitted that if the defendant No. 3 or defendant No. 2 on account of their family members holding the plot in a special scheme floated for weaker section not entitled to hold the property of tenement No. 7, such can be said as void and the Tribunal ought not to have left the matter to the authority for taking appropriate action.
9. Whereas, Mr. Vora, learned counsel appearing for the private respondents Nos. 2 & 3 contended that the approach on the part of the Tribunal cannot be said as erroneous.
10. In my view, if the plaintiff was to assert the right dehors the Scheme that the property was held by defendant No. 3, the burden was upon the plaintiff to prove the same. The finding recorded by the Tribunal in the impugned Judgement is that neither the Scheme nor the eligibility criteria came on record. Therefore, on that aspect, the findings recorded by the Tribunal cannot be said as by having committed error apparent on the face of record. Therefore, the contention of the learned counsel for the petitioner cannot be accepted.
11. The scope of this petition under Article 227 of the Constitution by now is well settled. The judicial review is available if lower authority or form has committed error apparent on the face of record. It may not be possible for this Court to undertake the exercise of re-appreciation of the evidence in a petition under Article 227 of the Constitution. Therefore, the only consequence would be to remand the matter to the Tribunal.
12. Hence, the impugned Judgment and Order passed by the Tribunal is quashed and set aside with the direction that the Tribunal shall examine the evidence available on record in light of the observations made by this Court hereinabove, mainly on the aforesaid two aspects for which the error is found by this Court as apparent on the face of record.
13. The appeal shall stand restored to the file of the Tribunal. The Tribunal shall give the opportunity of hearing to the parties to the proceedings of the appeal and shall take appropriate decision in the appeal in accordance with law, as early as possible, preferably within a period of 6 months from the receipt of the order of this Court. Until the appeal is finally heard and decided by the Tribunal, status quo as prevailing of the property in question as on today shall be maintained by both the sides. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.
