Punjab-Haryana High Court
Rajinder Kumar Chaudhary vs Haryana Urban Development Authority ... on 10 December, 2010
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
R.S.A. No. 4768 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S.A. No. 4768 of 2010 (O&M)
Date of Decision: 10.12.2010.
Rajinder Kumar Chaudhary
....Appellant
Versus
Haryana Urban Development Authority and others
...Respondents
CORAM : Hon'ble Mr. Justice Rakesh Kumar Garg Present:- Mr. Sangeeta Dubey, Advocate for the appellant.
RAKESH KUMAR GARG, J C.M. No. 14116-C of 2010 After hearing learned counsel for the appellant, delay of 86 days in refiling the appeal is condoned.
C.M. stands disposed of.
R.S.A. No. 4768 of 2010 This is plaintiff's second appeal challenging the judgments and decrees of the Courts below whereby his suit for permanent and mandatory injunction to the effect that respondent No. 1-HUDA should transfer the plot in dispute in his favour as owner/allottee and the respondents be restrained from transferring the aforesaid plot in favour of any other person without his consent in any manner, was dismissed.
Shorn of details, suffice is to say that the appellant filed the instant suit taking the plea that the plot in question was though allotted by respondent No. 1 in favour of respondent No. 2, but the same was purchased by the appellant and the total consideration money was paid by him. More over the claim of the appellant was also accepted by respondents No. 2 and 3 in a panchayati compromise and the agreement was also submitted by them before the HUDA authorities. The aforesaid suit was contested by the defendants by denying the averments made in the suit and it was stated that respondent No. 2 was owner in possession of the plot in question as per the allotment letter dated R.S.A. No. 4768 of 2010 (O&M) 2 5.10.2000 issued by the Estate Officer, HUDA.
After hearing both the parties, the trial Court decided issues No. 1 to 4, against the plaintiff/appellant and issue No. 5 was decided against the respondents being not pressed. Resultantly, the suit was dismissed.
Aggrieved from the aforesaid judgment and decree of the trial Court, an appeal was filed before the lower Appellate Court, which was also dismissed. While dismissing the appeal, the lower Appellate Court observed as under:-
"From the evidence and arguments advanced by learned counsel for the plaintiff, it is clear that it was a Benami transaction and if it is Benami transaction, then it is clear that it is a case of Benami and it has been so pleaded by the defendants. Even otherwise, defendant No. 2, is allottee of the plot and entire money has been paid by the defendant No. 2. Even it is so revealed from the written statement of HUDA. Therefore, when it is proved that it is the defendant No. 2, who is owner of plot in question, then the plaintiff is not proved to be owner in possession of the plot in question and he is not entitled for the relief of permanent injunction restraining the defendants from transferring or changing ownership of the plot in question in favour of any third person except the plaintiff without written consent of plaintiff. Although the plaintiff has termed the defendant No. 2 as a sham allottee but as per the defendant No. 1 i.e. HUDA it is clear case that as per the record maintained by HUDA, defendant No.2 is allottee of the plot in dispute and he had every right and authority to do all acts and things in respect of the said plot as per HUDA policy. It is also submitted on behalf of defendant No. 1 that it has no authority to refuse the transfer of any plot if the allottee fulfills all the conditions of transfer of the plot."
A perusal of the aforesaid observations of the lower Appellate Court would show that it was a Benami transaction. As per Section 4 of the Benami Transactions (Prohibition) Act, 1988, no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. R.S.A. No. 4768 of 2010 (O&M) 3
In view of the aforesaid bar, the present suit itself was not maintainable. Thus, no interference is warranted in the impugned judgments and decrees. No substantial question of law arises.
Dismissed.
(RAKESH KUMAR GARG) 10.12.2010. JUDGE Reema