Tapuriah Jain & Associates

DELHI DISTRICT COURT

SHRI KUNDAN SINGH VS SMT. JASVINDER KAUR ON

29 FEBRUARY, 2012

SUIT NO. 49/11

1. Vide this order, I shall dispose off the suit for possession and permanent injunction filed on behalf of plaintiff.

2. It is the case of the plaintiff that the defendant is the real elder sister of the plaintiff and the father of the parties Shri Jaswant Singh, now deceased has purchased a plot area measuring 280 sq. yds., forming part of Khasra No. 1564 & 1565/67, bearing municipal no. 460, Block No. F-2, Ratia Marg, Main Road, Sangam Vihar, New Delhi on 01.04.1986 from one Shri Chandan Singh. However, the father of the parties was a Govt. servant, thus he got executed the title documents pertaining to the said property in favour of the defendant and the said property is the Benami property of Shri Jaswant Singh in the name of the defendant.

3. It is further submitted that in term of the oral family settlement, the defendant had transferred the half portion of the said property i.e. 140 sq. yds. portion i.e. plot no. 2, Khasra no. 1565/67, situated at H. No. F-2/460, Block F-2, Sangam Vihar, New Delhi, in favour of the plaintiff against the consideration of Rs. 7,000/- and had executed the relevant sale/ transfer documents in favour of the plaintiff viz. General Power of Attorney, Agreement to Sell, Will, Receipt etc. all dated 20.01.1988. The portion owned by the plaintiff is more specifically shown in red colour in the site plan.

4. It is further submitted that however, after executing the said documents, the defendant in good faith took the original thereof from the plaintiff, by stating that she will keep the same in safe custody and will hand over the same as and when required by him. The defendant had handed over the actual physical possession of the suit property to the plaintiff on 20.01.1988 itself.

5. It is further submitted that thereafter, the plaintiff constructed the boundary walls and structure thereon and started running a Dhaba under the name and style of M/s Golden Dhaba in the suit property and he also installed a Water Pump therein from his own pocket.

6. It is further submitted by plaintiff that due to some unavoidable reasons and financial crises, the plaintiff had to stop his business in the suit property and shut down the said Golden Dhaba in January, 1993, but he remained in uninterrupted and unchallenged possession of the suit property thereafter.

7. It is further submitted that on 15.09.2006, in the absence of the plaintiff, the defendant with malafide and dishonest intention to grab the suit property owned by the plaintiff, trespassed in the suit property and removed/ demolished the existing structure constructed by the plaintiff therein. When the plaintiff came to know about such misdeed of the defendant, he immediately approached the defendant and enquired about her such act and conduct, but the defendant misbehaved and maltreated with the plaintiff.

8. It is further submitted that being aggrieved with the said act of the defendant, the plaintiff called the meeting of the elders and family members, therein the defendant apologized for her act and conduct and assured the family members that she will return the possession of the suit property to the plaintiff and believing the such assurance of the defendant as true, the plaintiff did not lodge any complaint against the defendant.

9. It is further submitted that later on, the defendant turned futile and she has filed a false suit for permanent injunction against the plaintiff vide Civil Suit No. 1381/06, (New No. 362/2008) which is now pending in the Hon'ble Court of Shri Vinay Singhal, Addl. Sr. Civil Judge, Tis Hazari, Delhi and the same is now fixed for 05.12.2009. Being aggrieved with the said act of the defendant, the plaintiff lodged a police complaint with P.S. Sangam Vihar, New Delhi, vide DD No. 13-A, dated 30.11.2006.

10. IT is further submitted that the defendant has no right, title or interest in the suit property and her status in the said property is like an unauthorized/ illegal occupant/ tress- passer and she has no right to remain in possession of the suit property any more. Hence, the present suit.

11. NOTICE of the suit was issued to the defendant and in her written statement she has refuted all the claims of the plaintiff by submitting that she is the owner and in possession of a plot of land measuring 140 sq. yards, forming part of Khasra Nos. 1564 and 1565, bearing number 461, Block F-2, Ratia Marg, Main Road, Sangam Vihar, New DELHI-110062.

12. IT is also submitted by defendant that on 06.06.1986, the defendant had purchased a plot measuring 280 sq. yards from the previous owner Shri Subbal, S/o Shri Amar Singh, R/o Village and Post Office Tuglakabad, New Delhi. After purchasing the said plot, the defendant had raised boundary wall on three sides of the plot, as a built up house was already in existence on the fourth side. After the purchase of the said plot measuring 280 sq. yards, the defendant was in continuous possession of the entire plot. However, in the month of July 1999, the defendant had sold half portion of the plot, measuring 140 sq. yards, to one Dr. Vikas Bishwas, R/o F-2/150-152, Sangam Vihar, New DELHI-110062.

13. IT is further submitted that after the said sale of half of the plot, the defendant continued to be in possession of the remaining half portion of the plot measuring 140 sq. yards. Hence, the defendant is in continuous possession, as the owner thereof of the suit plot since July 1999. It is not out of place to mention that Dr. Vikas Bishwas had sold his 140 sq. yards of land to Shri Vikram Kasana and Prem Singh, who have constructed their houses on the said land.

14. IT is further submitted that the plaintiff, who is real younger brother of the defendant, was unemployed in the year 1987. The defendant and her husband, however, were fully employed and financially well placed. The father of the defendant had, therefore, requested the defendant to help the plaintiff to earn his livelihood. Hence, the defendant, to help the plaintiff at the asking of her father, in the year 1987 had opened a hotel, named "Hotel Garden", on the plot (measuring 280 sq. yards) and had permitted the plaintiff to run the said hotel. The business of the hotel was run by the plaintiff during the period from 1987 to 1992.

15. IT is further submitted that the business of the hotel, however, could not pick up properly and it did not prove to be a gainful or profitable employment for the plaintiff. Hence, the Hotel was closed in the year 1991 or 1992. After the closure of the hotel, the plaintiff did not have any concern with the plot measuring 280 sq. yards or any portion thereof. Infact, till the hotel was being run by the plaintiff, he had been permitted by the defendant to enter the plot for this purpose only.

16. IT is further submitted that after about seven years of the closure of the hotel, the defendant had in the year 1999 sold half portion of the plot measuring 280 sq. yards to Dr. Vikas Bishwas, without any demur or opposition from the plaintiff. It is, therefore, apparent that the plaintiff did not have any right, nor tried to exercise any imaginary or purported right, vis-a-vis the entire plot measuring 280 sq. yards or the suit plot. The defendant was the absolute owner-in-possession of entire plot measuring 280 sq. yards till the sale of the half portion to Dr. Vikas Bishwas; and is the absolute owner-in-possession of suit plot and has put up her locks on both the iron gates of the suit plot. Besides this, the defendant and her husband are frequently visiting the suit plot to watch and protect the defendant's possession over the suit plot. 

17. IT is further submitted that the plaintiff had previously never tried to lay any claim over the suit plot. However, recently, since the beginning of the year 2006, his intentions appear to have turned dishonest as well as envious against the defendant and her family. The plaintiff has started complaining to the defendant that she is owner of much more property than him. He had on a few occasions even asked the defendant that she should give entire or at least half portion of the suit plot to him. The defendant, considering all this to be idle talks, simply ignored it. However, the plaintiff is bent upon to give shape to his evil intends and designs.

18. IT is further submitted that on 04.10.2006, at about 6.15 p.m., the defendant had gone to the suit plot to look after her possession over the suit plot. On reaching the suit plot, the defendant saw that the plaintiff, Shri Vikram Kasana and three other persons were standing outside the suit plot. The plaintiff and the said persons were taking measurement of the front boundary wall of the suit plot. The defendant, therefore, asked them as to why they were doing so. At it, Shri Vikram Kasana told the defendant that he has given an earnest money of Rs. 1,00,000/- (One Lakh) to her brother, that is the plaintiff. Shri Kasana further told the defendant that plaintiff had sold the suit plot to him. The defendant was flabbergasted at the said disclosure made by Shri Kasana. The defendant, therefore, asked the plaintiff to explain as to how he had done so. The plaintiff, however, did not give any specific reply and told the defendant to talk only with Shri Kasana in this regard.

19. IT is further submitted that the defendant told the plaintiffs not to interfere with her ownership and possession over the suit plot. The plaintiff's, however, retorted back by threatening the defendant that they would break open the locks and forcibly take possession of the suit plot. The defendant requested them not to do so. But without giving any explanation to the defendant as to how they were entering into a sale transaction in respect of the suit plot; and without withdrawing the treat to forcibly occupy the suit plot, the plaintiff and their associates left the spot in a Maruti 800 car.

20. IT is further submitted that the defendant was terrified and became seriously apprehensive that the plaintiff might have forged some documents in respect of the suit plot and may forcibly take possession thereof. Hence, to reiterate and reaffirm her possession over the suit plot, the defendant, through a photographer, took photographs of the suit plot from various angles, along with Newspaper Nav Bharat Times dated 04.10.2006. After that, the defendant again locked the gates of the suit plot and returned back to her home.

21. IT is further submitted that to set the law in motion against the plaintiff and his associates, the defendant gave a complaint dated 05.10.2006 to the SHO, PS Sangam Vihar, which was duly registered vide DD No. 41 B. However, the police took absolutely no action against the plaintiffs and his associates or seized the forged documents, if any, in their possession. The threats of taking over forcible possession of the suit plot, however, continued. Hence, the defendant had no alternative but to seek indulgence of Civil Courts to protect her ownership and possession over the suit plot. The present defendant, therefore, had filed a suit for injunction against the present plaintiffs and Shri Kasana to restrain them from doing any illegal act to dispossess her from the suit plot.

22. IT is further submitted that court of Shri Vinay Singhal, Learned Additional Senior Civil Judge, Delhi, vide judgment and decree dated 05.12.2009, has decreed the said suit, titled as Jasvinder Kaur Vs. Kundan Singh and another, Suit no. 362/2008, in favour of the present defendant.

23. REPLICATION has been filed on behalf of the plaintiff to the WS of the defendant by denying that the suit has not been valued properly for the purposes of court fee and jurisdiction. It is further denied that the valuation of suit property for the purpose of relief of possession given by the plaintiff is highly undervalued. It is further denied that at present, the market value of the suit property is more than Rs. 30,00,000/- as alleged. It is further denied that a suit for possession of immovable property on the basis of the title is maintainable only if the plaintiff has legally enforceable title vis-a-vis the suit property. It is submitted that in the family settlement, the defendant has transferred the suit property in favour of the plaintiff in the year 1988 and also handed over the peaceful vacant possession thereof to him, as such, by transferring the suit property in favour of the plaintiff, the defendant had left with no right, title or interest in the suit property in any manner whatsoever.

24. FROM the pleadings of the parties following issues were framed by my Ld. Predecessor court:-

i. Whether the plaintiff is entitled to a decree of possession and injunction in respect of 140 sq. yards being part of Khasra No. 1565/67, municipal No. 460, Block F-2, Ratia Marg, Sangam Vihar, New Delhi?

ii. Whether the property was benami property of Late Sh. Jaswant Singh?

iii. Whether the suit is hit by the provisions of the Benami Transaction Act?

iv. Relief.

25. THEREAFTER, plaintiff has led his evidence by way of affidavit and examined himself and Shri Jasvinder Singh (PW-2) and Sh. Chandan Singh (PW-3) reiterating the facts of the case.

26. CROSS examination of PW-1, Shri Kundan Singh is reproduced as under:-

"I do not know as to whether any registered document was executed in favour of my father in respect of the suit plot. I do not know as to whether my father, who was working in PWD, had intimated his department about any transaction about the suit plot. It is wrong to suggest that my father had not purchase the suit plot or that no document was executed in his favour by anyone including Chandan Singh. No document was prepared in respect of the family settlement entered into between members of my family. Vol. It was oral settlement. It is wrong to suggest that no family settlement was entered into, as alleged by me in my affidavit.

No registered document was executed by defendant in my favour in respect of the suit plot. It is wrong to suggest that no other document was also executed by her in my favour. Vol. I have original affidavit singed by her in respect of the suit plot in my favour (the witness has produced an original undated affidavit, attested by Notary Public on 9.7.1991 and has claimed that the same is the affidavit deposed by the defendant in favour of the plaintiff) (the defendant who is present in person, has denied that the affidavit contains her signature at point Mark 'C' and 'D'). The affidavit is Mark.

It is wrong to suggest that signatures at point Marck 'C' and 'D' are not of the defendant. It is wrong to suggest that Shri Jaswant Singh had not purchased the plot measuring 280 sq. yards, as alleged in para 3 of my affidavit, on 1.4.1986 from one Shri Chandan Singh. It is further wrong to suggest that he had not got executed the title documents pertaining to the said plot in favour of the defendant as a benami property as he was a government servant. It is wrong to suggest that the original documents, as alleged by me in para 5 of my affidavit were not kept by me with the defendant. 

It is further wrong to suggest that defendant had never handed over actual physical possession of the suit plot to me on 20.1.1988 or on any other date. It is further wrong to suggest that no boundary wall was constructed by me on the suit plot or any structure for running a dhaba (Golden Dhaba) was constructed by me or water pump installed on the plot by me. It is wrong to suggest that the said dhaba was constructed by defendant out of her own funds and the water pump was also installed by her or that she had permitted me to run the said dhaba so that I was able to earn my living. It is wrong to suggest that I was not in possession of the suit plot for any period of time, except between 1989 to 1992, when I was running the said dhaba, with permission of the defendant. It is further wrong to suggest that after I stopped working in the dhaba, I had never again gone to the suit plot or was in possession thereof for any period of time or for any purpose. It is further wrong to suggest that I was never in uninterrupted and unchallenged possession of the suit plot for any period after 1992.

It is further wrong to suggest that the defendant was in continuous possession of the suit plot ever since she purchase the same in the year 1986. It is further wrong to suggest that the defendant was also in possession of the suit plot on 15.9.2006. it is further wrong to suggest that the defendant had not trespassed into the suit plot or removed/ demolished the existing structure, as alleged by me in para 8 of my affidavit. It is further wrong to suggest that I had never approached the defendant or inquired about her alleged conduct, as stated by me in para 8 of my affidavit. It is further wrong to suggest that no meeting of the elders of the family was convene or that no occasion arose for the defendant to apologize or to promise that she would return the suit plot to me as alleged in para 9 of the affidavit. It is further wrong to suggest that defendant is a real owner of the suit property or that she had never sold or transferred the same to me. It is further wrong to suggest that I am deposing falsely.

I did not deem it necessary to make my brother Surinder Singh, who had appeared as a witness (DW-3) in a suit for injunction filed against me by the defendant. It is wrong to suggest that I have intentionally not made him a witness in this case, as he had admitted in his cross-examination dated 14.10.2009 in the court of Shri Vinay Singhal, JSCC-cum- ASCJ-cum Guardian Judge (West), Delhi, "It is correct that my brother had no ownership right over the suit property", which is Exhibit PW-1/D." 

27. PW-2, Shri Jasvinder Singh cross-examined and his cross- examination is reproduced as under:-

"I have no document to show that in the year 1988 I was doing the business of giving on hire generator sets or that I had installed a generator in the Golden Dhaba during the period from 1988 to January 1993. It is wrong to suggest that I had not installed any generator as alleged by me in my affidavit. It is wrong to suggest that I am deposing falsely. It is correct that I am not a summoned witness."

28. CROSS examination of PW-3, Shri Chandan Singh is reproduced as under:-

"I have not brought any document to show that I was owner of Plot no. 1 & 2, Khasra No. 1564 and 1565, area measuring 280 sq. yards, Ratia Marg, Sangam Vihar, New Delhi. It is wrong to suggest that I was not the owner of said plot or that I had not sold the said plot to Late Shri Jaswant Singh. It is correct that signatures at point A-1, A-2 and A-3 on documents Exhibit PW-2/X-1, PW-2/X-2 and PW-2/X-3 (OSR) respectively are of me. It is wrong to suggest that I have deposed falsely as regards my ownership of the above plot and having sold it to Late Shri Jaswant Singh at the instance of plaintiff."

29. THEREAFTER, PE was closed and defendant led her evidence by way of affidavit in which defendant has examined herself and her cross examination is reproduced as under:-

"It is correct that originals of documents Ex. DW-1/A (colly) are not registered documents. Before the execution of documents I have verified about the title of the previous owner Sh. Subbal S/o Sh. Amar Singh. I can not produce Sh. Subbal since he has expired. I do not know about his children. I also can not produce the death certificate of Sh. Subbal. I do not know the name of notary mentioned in the document Ex. DW-1/A. I do not know his address. The signatures on the above documents are of mine. I normally signed in the same style. At this stage, the witness is confronted with copy of affidavit bearing original signatures and the witness denied her signatures. The copy of the affidavit is marked as Mark "X". It is wrong to suggest that I was not the owner of the suit property at any point of time. I do not have any other documentary evidence except Ex. DW-1/A to show that I paid consideration for the said property to Sh. Subbal. It is wrong to suggest that the plaintiff did not registered a case against me for being their daughter and sister in order to keep family pride. It is wrong to suggest that I had sold a portion of the original plot with a permission of the plaintiff Vol. I have sold it on my own. It is wrong to suggest that any plot at Tughlakabad was sold at the time of marriage or thereafter. It is wrong to suggest that 50 sq yard out of 100 sq yard plot no. RZ-15/5, Tuglakabad Extension, New Delhi was given to me by my father after my marriage for my residence. It is wrong to suggest that with the sale proceeds of 50 sq yard plot, I bought plot no. 3009, Gali No. 34, Tuglakabad Extension, New Delhi. It is further wrong to suggest that I have constructed my house on the said plot. It is further wrong to suggest that I have already been sold the property in question to the plaintiff for Rs. 7,000/-. It is wrong to suggest that I am deposing false in this case."

Thereafter DE was closed.

30. Ld. counsel for the plaintiff submits that a plot property measuring 280 sq. yards, was purchased by the father of the parties. Late Sh. Jaswant Singh from one Sh. Chandan Singh/PW3 on 1ST April 1986, from his own founds vide Ex PW1A colly and receipt dated 26.01.87/MARK A. He purchased the suit property in favour of defendant since he was a Government Servant.

31. LD. counsel for the plaintiff submits that the defendant in term of the oral family settlement sold 140 sq. yards in favour of the plaintiff against consideration of Rs.7000/- on 20.01.88. Portion of the said plot is shown in red colour in the site plan/Ex PW1B. Defendant after executing GPA, Agreement to sale, Will, Receipt, etc. took in original from the plaintiff that she would keep these documents in safe custody and would return the same as and when required by the plaintiff. Photocopies of the said original documents are collectively marked as Mark B (Colly). She also handed over the actual physical possession of the suit property to the plaintiff on 20.01.88 itself. She also executed an affidavit dated 09.07.91, original affidavit is mark. The copy of the said affidavit with original signatures of the defendant is marked as mark X. Defendant signed the said affidavit in the presence of the plaintiff. Thereafter, plaintiff constructed and started running Golden Dhaba in the suit property. He also installed a water pump thereon purchased from his own pocket. Due to unavoidable reasons and financial crises, he had to shutdown the Dhaba in January 1993. Plaintiff was in interrupted and unchallenged possession of the suit property till 15.09.06 when the defendant trespassed in it in the absence of the plaintiff.

32. LD. counsel for the plaintiff further submits that the plaintiff called upon the defendant and enquired about the trespass. She misbehaved and maltreated the plaintiff. The plaintiff called the meeting of elders and family members wherein the defendant apologized for her conduct and assured that she would return the possession of the suit property to the plaintiff and he did not lodge any police complaint against her.

33. Ld. counsel for the plaintiff submits that the defendant also filed a false suit NO.1381/06(NEW NO.362/2008 for permanent injunction against the deponent which was disposed off by Sh. Vinay Singhal, Addl. Sr. Civil Judge, Tis Hazari, Delhi on 5th December 2009. Plaintiff also filed a complaint with PS Sangam Vihar, New Delhi, DD NO.13-A dated 30.11.06/ is Ex PW1-"G".

34. It is submitted by Ld. counsel that the plaintiff has successfully proved source of consideration paid for the purchase of the suit property from the pocket of his Late father whereas defendant has miserably failed in her cross examination. She also could not prove her documentary evidence with regard to her alleged ownership of the suit property. Ld. counsel for plaintiff has relied upon judgments (a) AIR 1985 Calcutta 2, (b) AIR 1971 SC 1865,

(c) AIR 1975 SC 1748 wherein it is laid down by the Hon'ble court that photocopies of the original documents are admissible in evidence when the original documents are in power and in possession of opposite party. It is submitted by counsel for plaintiff that documents placed on record by the defendant are only notarised and not the registered document and hence cannot be believed.

35. Ld. counsel for plaintiff has laid reliance on a judgment cited in JT 2005 (7) SC 174 and further submits that it was open to the father of the parties to take plea of benami holding and since transaction took place prior to the enactment of 1988 Act, Sector 4 sub clause (2) of the said Act is prospecting in nature and his suit is not hit by the provisions of benami transactions (prohibition) Act, 1988. It is further submitted by Ld. counsel for plaintiff that the defendant has taken benefit of this fact that all the members in front of whom the oral agreement was taken place have since expired and thus raised the dispute later on. It is further submitted by Ld. Counsel for the plaintiff that although the defendant has taken plea of pecuniary jurisdiction as well as valuation of the suit but she has not produced oral or documentary evidence in support of her version. It is further submitted by counsel for plaintiff that defendant has not proved in any way the factum of physical possession over the suit property.

36. On the other hand it is submitted by the counsel for the defendant that the defendant is the owner and in possession of Plot measuring 140 sq. yds. Forming part of Khasra no. 1564 and 1567. It is further submitted that the defendant on 06.06.1986 had purchased a plot measuring 280 sq. yds from the previous owner Sh. Subbal S/o Sh. Amar Singh R/o Village and Post office Tuglakabad. After purchasing the said plot, defendant had raised a boundary wall on three sides of the plot. After purchasing the said plot, defendant was in possession of the entire plot but in a month of July 1999, she sold half of the portion measuring 140 sq. yds to one Dr. Vikas Bishwas. It is further submitted that the said Dr. Vikas Bishwas had further sold his plot of 140 sq. yds., to one Sh. Vikram Kasana and Sh. Prem Singh and they have constructed their house on the said land. It is further submitted that plaintiff is the real younger brother of the defendant and was un-employed in the year 1997 and in order to help the plaintiff, at the asking of her father in the year 1987, had opened a Hotel in the name and style of Hotel Golden at the said plot. However, the hotel business could not pick up properly, hence was closed in the year 1991-1992 and she is the owner of the suit property. It is further submitted that plaintiff has not proved in any way that the consideration was paid by Shri Jaswant Singh. It is further submitted that no document has been placed on record by the plaintiff in order to prove his ownership, right and title over the suit property. It is further submitted that it is the case of the plaintiff and plaintiff is to stand on his own leg in order to prove his case.

37. Heard. considered. My issue wise findings are as under:-

Whether the plaintiff is entitled to a decree of possession and injunction in respect of 140 sq. yards being part of Khasra No. 1565/67, municipal No. 460, Block F-2, Ratia Marg, Sangam Vihar, New Delhi?

38. In support of this issue plaintiff has submitted that the land in question was purchased by the father of the parties Shri Jaswant Singh from one Shri Chandan Singh. It is submitted that since Shri Jaswant Singh was the government servant he got the documents executed in favour of the defendant and the said property was the benami property of Shri Jaswant Singh in the name of defendant. It is further submitted that out of an oral family settlement the defendant had transferred the ½ (half) portion of the property for consideration of Rs. 7,000/- and also executed the relevant document on 20.01.1988. It is submitted that all the original documents are also in the custody of the defendant. It is also the case of the plaintiff that he started running a dhaba in the name and style of M/s. Golden Dhaba over the suit property. Plaintiff has placed on record the photocopy of some diary submitting that this diary was maintained by the father and payment for the plot is also recorded in this diary. I am unable to appreciate this piece of evidence as to how the factum of purchase of plot from the account of Shri Jaswant Singh is proved by these papers. A photocopy of receipt dated 26.01.1987 is also placed on record along with photocopy of photograph wherein few people are standing on a dhaba. A copy of invoice dated 14.05.1989 for purchase of a hand pump is also placed on record along with copy of ration card and photocopy of general power of attorney, agreement to sell, receipt and affidavit. From the perusal of these documents and the averments made by the plaintiff does not support his case. Nothing has been placed on record by the plaintiff to prove that the plot in question was purchased by Shri Jaswant Singh in the name of defendant being a benami property and also nothing has been placed on record by the plaintiff in order to substantiate his second averment that the ½ (half) portion i.e. 140 sq. yards was purchased by him from defendant for a sale consideration of Rs. 7,000/-. No original documents has been placed on record by the plaintiff in order to substantiate his claim.

39. Although the plaintiff has examined Shri Chandan Singh (PW-2), who has also placed on record an affidavit executed by him on 17.07.2010 wherein it is submitted by him that the plot in question was sold by him to Shri Jaswant Singh in April, 1986 against the total consideration of Rs. 25,200/- but this witness has not placed on record any document or even the photocopy to show that he was the owner of the suit property in question. In his cross- examination he has admitted his signatures at point A1, A2 & A3 on the document Exhibit PW-2/X1, Exhibit PW-2/X2 and Exhibit PW-2/X3. These documents are the general power of attorney executed by Shri Subbal in favour of the defendant, agreement to sell and purchase executed by Shri Subbal in favour of defendant and receipt executed by Shri Subbal in favour of defendant. Shri Chandan Singh is also the witness of these three documents and has also identified his signatures on these documents. He has not even spoken a single line that in lieu of consideration received for the suit property from Shri Jaswant Singh he executed the document in the name of defendant on the saying of Shri Jaswant Singh as a benami property, hence the statement and the affidavit placed on record by this witness cannot be taken into consideration for deciding the right, interest, ownership and title of the plaintiff over the suit property. It is also very strange to consider the averment made by the plaintiff that ½ (half) portion of the suit property was sold by the defendant to the plaintiff for consideration of Rs. 7,000/- only. However his own witness PW-2, Shri Chandan Singh submitted that the suit property was sold against the sale consideration of Rs. 25,200/-. It is very strange to believe that even if the averments made by the plaintiff be considered then how the amount of sale for the plot comes down to this extent. I am of this opinion that all the averments made in the plaint by the plaintiff are merely the averments and nothing substantial has been placed on record by him in order to substantiate his claim. Accordingly, issue no. 1 is decided against the plaintiff for want of sufficient evidence.

Whether the property was benami property of Late Sh. Jaswant Singh?

40. Plaintiff is claiming his title over the suit property in question on the basis, firstly that the property in question was benami property of Late Shri Jaswant Singh and secondly on 20.01.1988, defendant has sold ½ (half) plot measuring 140 sq. yards to him for sale consideration of Rs. 7,000/-. Nothing has been placed on record by the plaintiff to show that the suit property was purchased by Shri Jaswant Singh out of his own funds in the name of the defendant. The affidavit of Shri Chandan Singh has been placed on record by submitting that he has sold the property in question to Shri Jaswant Singh however in his cross-examination he has not placed any document on record to show that he was the owner of suit property in question. For want of evidence, it cannot be said that the suit property in question was the benami property of Late Shri Jaswant Singh.

41. IN Binapani Paul vs. Pratima Ghosh (2007) 6 SCC 59, it has been held that:

"The source of money being an important factor for determining benami nature of transaction, the onus lay on the plaintiffs."

42. IN Valliammal vs. Subramaniam (2004) 7 SCC 233, it has been held that:

"Intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami."

43. In S. Sankara Hali & Sakara Institute of Philosophy and Culture vs. Kishoril Lal Goenka, (1996) 7 SCC 55, it has been held that:

"Under the Benami Transactions (Prohibition) Act, 1988 any transaction entered into prior to the coming into force of the Act, between the ostensible owner and the real owner is not voided by any provision, whatsoever."

44. In Rajinder Prashad Malik v. Shanti Devi Malik AIR 2003 P & H 29, it has been held that:

"Though the question whether a particular sale is benami or not, is largely one of the fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances:

(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale."

Upon facts and circumstances, plaintiff has utterly failed to prove that the suit property was purchased by his father Shri Jaswant Singh. Issue no. 2 is decided accordingly.

Whether the suit is hit by the provisions of the Benami Transaction Act?

45. For implementing the recommendations of the 57th report of the law commission on Benami Transactions, The Benami Transactions (Prohibition) Act, 1988 was passed. This act was passed to prohibit benami transactions and the right to recovery property held benami and for matters connected therewith. This act was passed in the year 1988. The Benami Transactions (Prohibition) Act, 1988 had no retrospective effect. The transaction in question relating to the suit property is of the year 1986. Hence, the suit is not hit by the provisions of The Benami Transactions (Prohibition) Act, 1988.

Issue no. 3 is decided accordingly.

46. The suit of the plaintiff is dismissed in terms of the above. No order as to cost.

47. File be consigned to record room after necessary compliance. Announced in the open Court. (NEELAM SINGH) ADJ-02, SOUTH, SAKET, NEW DELHI 29.02.2012/MC Kundan Singh vs. Jasvinder Kaur Suit No. 49/11 29.02.2012 Present : Counsel for plaintiff Counsel for defendant Vide separate Judgment, suit of the plaintiff is dismissed. File be consigned to record room after necessary compliance.

(NEELAM SINGH) ADJ-02, SOUTH, SAKET, NEW DELHI 29.02.2012/MC

----------------------------------------------------------------------------