Delhi District Court
Sh. Mohd. Rashid Noor vs Mohd. Zafar Noor on 9 September, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No.628/2012
IN THE MATTER OF:
Sh. Mohd. Rashid Noor
S/o Sh. Noor Mohamad,
R/o 80B, Gali No. 7,
Zakir Nagar, Okhla,
New Delhi. ............Plaintiff
Versus
1. Mohd. Zafar Noor.
2. Mohd. Shahid Noor
Both sons of Sh. Noor Mohammad
R/o 80B, Gali No. 7,
Zakir Nagar, Okhla,
New Delhi110025. ...........Defendants
Date of Institution: 10.05.2002
Date of Reserving for Judgment: 06.09.2014
Date of Judgment : 09.09.2014
SUIT FOR DECLARATION AND INJUNCTION
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for declaration and injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that the plaintiff The defendant is the real younger brother of the plaintiff. Te plaintiff Suit No. 628/2012 Page No. 1 of 26 entered into an agreement to sell with one Ms. Nilofer Khurshid wife of Major R.V.M. Menon, resident of 2, Moti Lal Nehru Place, New Delhi, on 24.11.1978, for the purchase of the property bearing Municipal no. B1, Gulmohar Avenue (Tikona Park), measuring 199.885 sq.yds, comprised in original khasra no. 142, Khewat No. 74, Khatoni No. 19, situated in Jamia Nagar, Okhla, New Delhi and the sale deed agreement was executed on 24.11.1978. The plaintiff vide the said sale agreement, agreed to purchase the suit property from Ms. Nilofer Khurshed and she also agreed to sell the suit property to the plaintiff. The whole plot for sale was measuring 399.770 sq.yds, for which the said Smt. Nilofer entered into two agreements on the same day that is the agreement to sell in favour of the plaintiff and another in favour of Mrs. Nafis Ikram W/o Mr. Ikram Admad, and she agreed to sell equally half portion measuring 199.885 sq.yds of the said whole plot to both the purchasers. The plaintiff got prepared a Bank draft of Rs. 25,000/ dated 22.11.1978 in favour of said Mrs. Nilofer, vide draft no. 619568 drawn on Syndicate Bank, I.N.A. Colony, New Delhi, but half of the amount of Rs. 12,500/ is adjusted in other sale agreement of Ms. Nafis Ikram, with the mutual understanding of both the purchasers that Rs. 12,500/ paid by the plaintiff on behalf of Ms. Nafis Ikram shall be repaid and adjusted at the time of execution of sale deed. Therefore, Suit No. 628/2012 Page No. 2 of 26 the said Mrs. Nilofar received Rs. 12,500/ as part payment out of the consideration amount of Rs. 45,000/ from the plaintiff which the said Mrs. Nilofar acknowledged and it was further agreed that the remaining balance shall be paid by the plaintiff on or before the execution of the sale deed before the Sub Registrar. It is further submitted that the plaintiff requested Ms. Nilofer Khurshid to execute the sale deed in the name of the defendant to which she agreed, consequently a sale deed was executed in favour of the defendant by Ms. Nilofer Khurshid on 24.5.1979, and it was registered in the office of Sub Registrar 11 on 4.6.1979. It is significant to mention that balance sale price of the property in suit amounting to Rs. 32,500/ was paid by the plaintiff i.e. Rs. 20,000/ by means of a Pay order bearing no. 213516/212/79 dated 24.05.1979, drawn on Punjab and Sind Bank, New Friend Colony, New Delhi and Rs. 12,500/ was paid by Ms. Nafis Ikram to Ms. Nilofer Khurshid on behalf of the plaintiff at the time of execution of the sale deed. It is further submitted that at the time of execution of the sale deed, the defendant was a minor of 14 years of age; and he was not engaged in any business/profession and was not an earning hand. He was dependent on the plaintiff. He was unemployed and not in service. He had no source of income at that time and he had no means to pay the sale price of the suit property. Suit No. 628/2012 Page No. 3 of 26 It is further submitted that the whole construction on the plot/proper is/was made by the plaintiff's own funds, therefore, no one else is entitled to enjoy the property in suit except the plaintiff. It is further submitted that now the defendant had challenged the right, interest, title of the plaintiff in the suit property and on 23.4.2002, he claimed that he is the owner of property in suit. It is further submitted that the defendant started holding out himself to be the owner of the property, and cast clouds on the title of the plaintiff in respect of the suit property. It is submitted that prior to 25.4.2002, the defendant never claimed himself to be owner of the suit property. The defendant has no legal right whatsoever to claim himself or to hold himself out to be the owner of the property is suit. The plaintiff requested the defendant to desist from casting clouds on the right, title and interests of the plaintiff in respect of the suit property, but the defendant has not cared. On 4.5.2002, the plaintiff finally asked the defendant to stop holding him out to be the owner and not cast clouds on the right, title and interest of the plaintiff in respect of the suit property, but the defendant has refused. It is further submitted that on 4.5.2002, a property dealer visited the suit property and the defendant was seen talking with him and negotiating with him for the sale of the suit property. It is further submitted that the plaintiff is in possession of the part portion of the suit property. Hence, the Suit No. 628/2012 Page No. 4 of 26 present suit is filed by the plaintiff.
3. On the hand the the defendant No. 1 in his WS has contended that the plaintiff has claimed that he had made the payment of the price of the suit property through the property was purchased in the name of the defendant. Thus, this makes out a "Benami" transaction". Thus, the suit is barred U/s. 4 of The Benami Transactions (Prohibition) Act, 1988. It is further contended that the suit is barred by the time. The plaintiff has stated in the plaint that the property was purchased in the name of the defendant under a registered sale deed executed on 24051979 executed by Mrs Nelofar Khurshid in favour of the defendant. The plaintiff has filed the present suit for declaring him the owner of the property after almost twenty four years. It is further submitted that present suit is relating to an immovable property. The plaintiff has not given the necessary description and details of the property sufficient to identify as required under order VII. Rule 3 of CPC. The plaintiff has not given the details of the existing building on the property and also has not attached a site plan of the property as provided under the law. It is further contended that the plaintiff was not in possession of the property at any portion of the property at present. The defendant is staying in the property after his marriage in 1988 and is in exclusive possession of the property at present. The plaintiff has not paid the Suit No. 628/2012 Page No. 5 of 26 proper court fee and has also not valued the suit property properly for the purpose of court fee and jurisdiction. It is further contended that suit is liable to be dismissed since it does not disclose any cause of action. It is further contended that the plaintiff has not approached the court with clean hands and is thus not entitled for the equitable relief of injunction from this court. The plaintiff has given an utterly false and wrong statement in the plaint, in order to grab the property of the defendant, who is his younger brother. The true facts are that the entire sales consideration for the purchase of the suit property was given by Sh. Noor Mohammad, who is the father of both the plaintiff and the defendant. The property was purchased in the name of the defendant as per the instructions of Sh. Noor Mohammad out of the money provided by him. Not a single paisa was given by the plaintiff for the purchase of the property. The true facts are that when the property was purchased in 1978, the plaintiff was a student in Bhagat Singh college, Kalkaji, New Delhi. It is further submitted that father of both plaintiff and defendant, namely, Sh. Noor Mohammad was working in the Embassy of Saudi Arabia for a long time. After leaving the service of Saudi Embassy, he started practicing as an advocate till he became ill on account of parkinson disease about ten years ago. Sh. Noor Mohammad had purchased an industrial plot measuring 1000 sq. ft. Suit No. 628/2012 Page No. 6 of 26 in Noida in the name of the plaintiff, another property in Aligarh (Dholpur) which is a commercial property in the name of second son Sh. Shahid Noor, a flat (residential) in Taj Sirtaj Society, near Laxmi Nagar Delhi, in the name of his third son Sh. Azad Noor and the present suit property B1 Gulmohar Avenue, Okhla, New Delhi, in the name of Mohd. Zafar Noor, the forth son, who is the defendant in this case. All these properties were purchased out of the amounts provided by Sh. Noor Mohammad. The plaintiff has disposed of his industrial plot in Noida about 10 years ago as per the information of the defendant, though he did not even disclose this fact till date to his father. The plaintiff after selling the industrial plot in Noida, now wants to grab the property of the defendant. It may also be mentioned that the plaintiff is now staying with his father at 80B, Gali No. 7, Zakir nagar, Okhla, New Delhi110025. This property is owned by Sh. Noor Mohammad the father of the plaintiff and defendant. It is further submitted that the plaintiff was only a college student in 1978 and he had no income at all for purchasing any property. In fact, the plaintiff had no income at all at that time and he was totally dependent upon his father. It is further submitted that the father of the plaintiff and the defendant namely Sh. Noor Mohmmad was planning to go to Saudi Arabia and to take up an employment there. Thus, he had asked the plaintiff to open an Suit No. 628/2012 Page No. 7 of 26 account in his name in Syndicate Bank, INA Colony, New Delhi, bearing the elder son so that he can provide the necessary funds for the maintenance of the family even after taking an employment in Saudi Arabia. After opening the account, Sh. Noor Mohammad had given various amounts to the plaintiff for depositing in the account for meeting the family expenses and for other purpose as and when required by Sh. Noor Mohammad. It is out of this amount provided by Sh. Noor Mohammad, the amount of Rs. 12,500/ was given for the purchase of the plot of land in the name of the defendant to Mrs. Nilofar and also Rs. 12,500/ as loan to Mrs. Nafis Ikram as her husband Sh. Ikram had requested for a loan of this amount to Sh. Noor Mohammad. Thus, no amount was paid by the plaintiff to any body for the purchase of this plot. The plaintiff is making absolutely false and baseless statement. It is further submitted that the property was purchased in 1978 and later on Sh. Noor Mohammad had provided the fund to the defendant for the construction of a single storey consisting 3 rooms, bath room kitchen etc. some time in the year 1985. Then there was no electricity and water connection. In 1988, the defendant got married and after that he shifted to the said house and started living with his wife and one daughter also born out of the wed lock. The wife of the defendant died on 09081998. After the death of his wife, he is now living with Suit No. 628/2012 Page No. 8 of 26 his daughter in the suit property. The suit property is in exclusive possession of the defendant since 1988 onwards till date. It is further submitted that the defendant had demolished the old single storey house in November, 2001 and has constructed three storeyed building out of his own saving and also after taking help from Sh Akram & Yoynus, which is in the process of completion, and the defendant and his daughter are staying in the first floor and the remaining portion are vacant. The house tax, electricity and water connection are in the name of the defendant from the very inception. The plaintiff at no time had any connection or concern with the suit property and not to say possession of any portion of it at any time. Further the defendant No. 1 denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. On the other hand the defendant No. 2 in his WS has contended that the plaintiff has not approached the Court with clean hands. The suit filed by the plaintiff does not disclosed any cause of action. The plaintiff has no locus standi to file the present suit in the present form as he is simply one of the share holder of the property in dispute alongwith present defendant and others and the property in dispute is in fact a joint property purchased by deceased father, late Noor Mohd. out of his own earning and savings and on this ground Suit No. 628/2012 Page No. 9 of 26 suit of the plaintiff is liable to be dismissed. Further the defendant No. 2 denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
5. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents in the plaint and denied all the allegation made by the defendant in their written statement and further submitted that the suit of the plaintiff be decreed.
6. From the pleading of the parties following issues were framed vide order dt. 05052003 & 20052002.
i) Whether the suit is barred on account of delay and latches, as claimed by the defendant? OPD
ii) Whether the plaintiff is not in possession of the property, if so, its effects? OPD
iii) Whether the plaintiff has not approached the court with clean hands, if so, its effects? OPD
iv) Whether the payment for the purchase of the suit property has been made by the plaintiff out of his own funds? OPP
v) Whether the plaintiff is entitled to decree of declaration as sought? OPP
vi) Whether the plaintiff is entitled to decree of permanent injunction? OPP Suit No. 628/2012 Page No. 10 of 26
vii) Whether the suit is barred under section 4 of Benami Transaction and Prohibition Act 1980 and Limitation Act."
viii) Relief.
7. To prove his case plaintiff has examined himself as PW1 and filed his evidence by way of affidavit. In his affidavit PW1 has reiterated the facts mentioned in the plaint and relied upon the following documents document:
i) Photo copy of agreement dt. 241178 is Mark A.
ii) Demand draft No. 619568 of Rs. 25,000/ is Ex. PW1/1. Iii) Certificate of pay order No. 213516/212/79 for Rs. 20,000/ is Ex. PW1/2.
iv) Banker certificate for foreign remittance from Punjab & Sind Bank, New Friends Colony, New Delhi is Ex. PW1/3.
v) Banker certificate for foreign remittance from Syndicate Bank, IN A , Colony, New Delhi is Ex. PW1/4.
vi) Paper of Registration of the firm/or patent is Ex.PW1/5. Vii) Slip for Gram Address of the firm is Ex. PW1/6. Viii) Allotment of code Number, application to RBI and reply are Ex. PW1/7 colly.
ix) Three letters of Atta Trading Corporation are Ex. PW1/8 Colly.
x) Certificate for foreign inwards remittance is Ex. PW1/9.
xi) Overseas draft No. 113260 is Ex. PW1/10.
Suit No. 628/2012 Page No. 11 of 26
8. Further the plaintiff has examined Sh. S.K. Rewari, Clerk, Syndicate Bank, INA Colony, New Delhi who deposed that the summoned record is not traceable.
9. Further the plaintiff has examined Sh. Syyad Abid who in his examination in chief deposed that the agreement dt. 211178 was executed in his presence between Md. Rashi Noor and Nilofer Khursheed.
10.Further the plaintiff has examined Sh. Manmohan , CTO Punjab and Sindh Bank, New Friends Colony, New Delhi who brought the summoned record of Ex. PW1/2 and also filed document Ex. PW4/1 i.e. Copy of register maintained by the Bank.
11. Further the plaintiff has examined Sh. Alok Kumar Nagar, Clerk Syndicate Bank, INA Branch, New Delhi23 who also brought the summoned record of document Ex. PW1/1 & PW1/4.
All the plaintiff's witnesses were also crossexamined by the Ld. counsel for the defendants.
12. On the other hand the defendant No. 1 has examined himself as DW1 and filed his evidence by way of affidavit Ex. R1. In his affidavit DW1 has reiterated the facts mentioned in his WS and relied upon the following documents :
i) Copy of sale deed dt. 24051979 is Ex. DW1/1.
ii) House tax receipt, Electricity Bill, Water Bill are Ex. DW1/2 to Suit No. 628/2012 Page No. 12 of 26 DW1/4 respectively.
13. The defendant No. 2 has examined himself as D2W1 and filed his evidence by way of affidavit Ex. D2W1/A. In his affidavit DW1 has reiterated the facts mentioned in his WS.
14.Further the defendant has examined Sh. Inayatullah, Advocate as DW2 who deposed that Ex. DW1/1 colly was drafted by him. Further the defendant has examined Ms. Nilofer as DW3 who in her examination in chief deposed that she sold the suit property to defendant No. 1 and defendant No. 1 paid her sale consideration. All the defendant's witnesses were also crossexamined by the Ld. counsel for the plaintiffs.
15. I have heard Ld. counsel for both the parties and perused the record & gone through the relevant provision of law.
16. My issue wise finding is as under:
17. Issue No. 1 Whether the suit is barred on account of delay and latches, as claimed by the defendant? OPD Issue No. 2 Whether the plaintiff is not in possession of the property, if so, its effects? OPD Issue No. 3 Whether the plaintiff has not approached the court with clean hands, if so, its effects? OPD Issue No. 4 Whether the payment for the purchase of the suit property has been made by the plaintiff out of his own funds? Suit No. 628/2012 Page No. 13 of 26 OPP Issue No. 5 Whether the plaintiff is entitled to decree of declaration as sought? OPP Issue No. 6 Whether the plaintiff is entitled to decree of permanent injunction? OPP Issue No. 7 Whether the suit is barred under section 4 of Benami Transaction and Prohibition Act 1980 and Limitation Act."
Issue nos. 1 to 7 are taken up and decided together since involve appreciation of common evidence.
Before delving on the rival contentions of the parties it is worthwhile to discuss the evidence led by the parties.
18.The plaintiff Sh. Rashid Noor appeared as Pw1 and stated in his crossexamination that he knows Ms. Nilofer Khurshid since 1972 through his father. He completed his higher secondary in 1972. In 1978 he was in business in the name and style of Al Noor International Export House, and was a student of Bhagat Singh college in the evening classes. He came to know Mrs. Nafis Ikram in 1978 45 months before purchase of the suit property through his father. The agreement with respect to suit property was executed in THC and stamp paper was purchased by Mrs. Nilofer Khurshid. Draft of Rs. 25, 000/ was handed over by plaintiff to Mrs. Nilofer Suit No. 628/2012 Page No. 14 of 26 Khurshid. His father did not give him even a single pany for starting his business. He was residing with his father as family member . His father spent money on his education. His business was related to handicrafts. The material was collected from District Muradabad and was supplied to Saudi Arabia. He was no an income tax payee at the relevant time. He has received cheque of Rs. 1,000/ from a party of Saudi Arabia who was sent glass items. This was the first and the last transaction from the said firm. In 1977 the plot on which the business of the firm M/s New India Metal Industries which was carried out by the plaintiff with his cousin Mr. Nadim Mohamad was sold out in 199495. His father did not give any money for purchasing the said plot. Construction was raised in the suit plot in the year 1984 then he had come to India for twothree months. He did not reside in the property in question but it was in his possession. He is residing in property No. 80B, Street No. 7, Zakir Nagar, New Delhi since 1982. The original agreement is in the possession of the vendor. Zafrer Noor did not raise any construction in the suit property prior to 04052002 but later on he constructed the said plot after demolishing the old one out of his own money. He did not go for execution of the sale deed at the subregistrar office but his went there. He requested the vendor for execution of sale deed in the name of the defendant No. 1. At present the suit Suit No. 628/2012 Page No. 15 of 26 property is built up to four and an half stories. He is not in physical possession of the suit property.
19. PW2 Sh.S.K.Rewari did not bring the summoned record as was not traced.
20.PW3 SH. Syyed Abid Anis stated in his crossexamination that he is in family relation with the plaintiff. Niofer Khurshid and plaintiff signed on the agreement dt. 21111978 in his presence and then he signed it. He did not remember the name of the notary who attested the said affidavit. Mohd. Rashid Noor was the student in Bhagat Singh College in Evening shift in 1978. He could not say that the plaintiff was dependent on his father. The draft of Rs. 25,000/ was given by Rashid Noor and remaining balance, he did not know who had paid. He did not know from where Rs. 25,000/ was got by the plaintiff. He did not know after the purchase of the property who is in its possession.
21. PW4 Sh. Manmohan proved the documents Ex. PW1/2 and Ex. PW4/1.
22. PW5 Sh. Alok Kumar proved the documents Ex. PW1/1, PW1/4. He stated in his crossexamination that the said account was opened on 15091978 in the name of the plaintiff from an amount of Rs. 25,000/ by draft which was issued from a foreign company.
23.DW1 Sh. Zafar Noor stated in his crossexamination that the Suit No. 628/2012 Page No. 16 of 26 payment towards the purchase of the suit plot was made by his father. At the time of purchase of the suit property he was 17 years of age. He did not know whether there was an agreement between the vendor and the plaintiff. He has never announced the plaintiff as the owner of the suit property. The construction in the suit property was raised from his funds. Plaintiff was student in Bhagat Singh College in evening classes at the time of purchase of the suit property. His father expired on 10102003. The whole property is in his possession and he is residing on the first floor of the suit property. His residential address in the voting list is 80 B, Zakir Nagar, Delhi. His father has never gone to Saudi Arabia for service. The suit property has been constructed in 2001.
24. DW2 SH. Inayatulla stated in his crossexamination that he knew the father of the parties for more than 40 years. Sale deed was executed in his presence. Father of the parties purchased the suit property in the name of defendant No. 1 and their father made payment of consideration amount.
25. DW3 Ms. Nilofer Khurshid stated in her crossexamination that she knew father of the defendant No. 1 and met defendant No. 1 for the purpose of sale before execution of Ex. DW1/1. The transaction was negotiated with Sh. Noor Mohamad. No agreement to sell was executed before Ex. DW1/1. She did not know if agreement dt. 24 Suit No. 628/2012 Page No. 17 of 26 111978 was executed. Plaintiff had no concern with the sale of the suit property. She knew that the defendant No. 1 was a minor at the time of execution of Ex. DW1/1 but his father wanted that it should be executed in the name of the defendant No. 1. She denied that at the time of execution of sale deed Ex. DW1/1 she had taken the original of agreement dt. 24111978.
26. D2W1 Sh. Shahid Noor stated in his crossexamination that his father told that he would purchase the suit property in the name of the defendant No. 1 as he was minor at that time but the property will remain of all the four brother. He had never been in the possession of the suit property nor asked for the same. For raising construction of the property he paid Rs. 3 lacs to his father in cash.
27. The case of the plaintiff is that he purchased the suit property bearing no. BI, Gulmohar Avenue (Tikona Park), Khasra no. 142, Khewat no. 74, Khatoni no. 19, Jamia Nagar, Okhla measuring 199.885 sq yds. out of his own funds in the name of the defendant no. 1 SH. Zafar Noor and when in April 2002 the defendant no. 1 started claiming himself to be the owner of the suit property, the plaintiff was forced to file the present suit. It is the case of the plaintiff that he had first entered into an agreement to sell dated 24/11/1978 with Ms. Nilofer Khurshid and made payment to her of Rs. 25,000/ vide bank draft no. 619568 this payment stands proved Suit No. 628/2012 Page No. 18 of 26 vide Ex. PW1/1 and Ex. PW1/2. The plaintiff further states that the suit property was purchased for a sum of Rs. 45,000/ and remaining amount was vide pay order which has been proved vide Ex. PW4/1.
28. It is stated in the crossexamination of plaintiff as PW1 that he had requested the vendor to execute sale deed in favour of the defendant No. 1, clearly the defendant had the knowledge that the ownership right will vest in defendant no. 1 and it would be inferred that the suit property was purchased for the benefit of the defendant No. 1, a minor. The conduct of the plaintiff as is admitted in his crossexamination in not going for execution of sale deed dt. 2411 1978 and since father of the parties went for execution of sale deed shows that the money paid towards consideration was provided by Sh. Noor Mohamad through the plaintiff, obviously for tax benefits. It is stated by the PW2 in his crossexamination that only transaction of Rs. 1,000/ was entered by him in his business but the consideration amount for purchasing the suit property is Rs. 45,000/. Although it is proved that the plaintiff had money to pay the consideration amount but it has not been proved that the said money of Rs. 45,000/ was earned by the plaintiff himself. Considering that the plaintiff has admitted that at the time of purchase of the suit property he was residing with his father and Suit No. 628/2012 Page No. 19 of 26 was a student in college and that his educational expenses were borne by his father , a presumption arises that father of the plaintiff had provided funds for purchasing the suit property through plaintiff in favour of the defendant No. 1. This presumption has not been rebutted by the plaintiff.
29.The story with respect to Ms. Nafis Ikram pleaded in the plaint by the plaintiff with respect to sum of Rs. 12,500/ out of Rs. 25,000/ paid to Ms. Nilofer Khurshid was adjusted towards the property sold to Ms. Nafis Ikram by Ms. Nilofer Khurshid etc has not been proved by the plaintiff as neither any question in this regard was put to DW3 Ms. Nilofer Khurshid in this regard nor Ms. Nafis Ikram has been examined by the plaintiff in this regard.
30.The contention of the defendants is that the father of the parties made payment towards consideration amount by depositing money in the account of the plaintiff as the account of the plaintiff was opened since their father Sh. Noor Mohammad had gone for some job in Saudi Arabia and money for household expenses etc was sent to the family of SH. Noor Mohamad by depositing money in the account of the plaintiff. It is also pleaded that the plaintiff was a student in Bhagat Singh college in the year 197879 and had no source of income. In his crossexamination the defendant while deposing as DW1 stated that his father had never worked in Saudi Suit No. 628/2012 Page No. 20 of 26 Arabia, therefore, question of Sh. Noor Mohd. sending money for purchasing the suit property from Saudi Arabia does not arise. Furthermore, the plaintiff has proved vide Ex. PW1/2Ex. PW1/9 that he was working in the name and style of Al Noor International Export House in the year 197879 for exporting handicraft in brass, copper and wooden wears and was receiving money in foreign exchange etc and thus had a source of income. It has been admitted by the defendant DW1 that the plaintiff was a student in Bhagat Singh College in the evening sessions.
31. The plaintiff has averred that an agreement to sell Mark Z was executed between Ms. Nilofer Khurshid and that the original agreement to sale was with Ms. Nilofer Khurshid when the question in this regard was put to Ms. Nilofer Khurshid she has specifically denied having executed any such power of attorney dt. 24111978 in favour of the plaintiff and having its original. Mark Z has not been proved by the plaintiff. No notice for production of the original under order 12 rule 8 CPC has been sent by the plaintiff to Mrs. Nilofer Khurshid for producing the original Mark Z. PW3 Sh. Sayeed Abid Anis though has stated that the Mark Z was executed between Nilofer Khurshid and the plaintiff but in the absence of the original being on record, Nilofer Khurshid denying execution of the said Mark Z and known examination of the attesting Notary Public /oath Suit No. 628/2012 Page No. 21 of 26 commissioner, the version of the plaintiff with respect to Mark Z remains unproved.
32.The plaintiff has pleaded that he is in the possession of a portion of the suit property. However, has not produced any document on record to prove that he was ever in the possession of the suit property. The plaintiff in his crossexamination has admitted that he did not reside in the suit property and that he was never in the physical possession of the suit property.
33.The plaintiff has not even filed on record a site plan of the suit property to describe the suit property.
34.The contention of the plaintiff is that the plaintiff out of his own funds had raised the construction over the suit premises. But no positive evidence has been led by the plaintiff in this regard to prove his case with respect to this contention. The plaintiff in his cross examination has admitted that the defendant has after demolishing the existing superstructure raised construction in the suit property, although after filing of this suit. However, in the written statement of the defendant no. 1 it has been stated that he had raised the super structure over the suit property, which fact has not been rebutted by the plaintiff. Thus, admittedly, the owner of the existing superstructure is the defendant no.1.
35.Admittedly, vide registered sale deed dated 24/11/1978 Ex. Suit No. 628/2012 Page No. 22 of 26 PW1/10 the suit property was sold by Ms. Nilofer Khurshid to Sh. Zafar noor, defendant no. 1. DW3 Ms. Nilofer Khurshid has also admitted this fact. Thus, clearly, the ownership of the land is also with the defendant no. 1 Sh. Zafar Noor.
36.It would be worthwhile that the provision under S. 3 & 4 of the Benami Transaction Act is reproduced as under:
3. Prohibition of benami transactions (1) No person shall enter into any benami transaction.
1. Nothing in subsection (1) shall apply
a) to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife of the unmarried daughter;
b) the securities held by
i) depository as a registered owner under sub section (1) of section 10 of the Depositories act, 1996 ( 22 of 1996);
ii) Participant as an agent of a depository.
Explanation the expression " depository" and " participant shall have the meanings respectively assigned to them in Cls (e) and (g) of sub section (1) of section 2 of the Depositores Act, 1996 ( 22 of1996).
(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under this section shall be non cognizable and bailable.
Section 4 : Prohibition of the right to recover property held benami (1) No suit, claim or action to enforce any right in respect of any property held benanmi 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 (2) No defence based on any right in respect of any property held benami whether Suit No. 628/2012 Page No. 23 of 26 against the person in whose name the property is held or against any other person,shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply
a) Where the person in whose name the property is held a coparcener in a Hindu Undivided family and the property is held for the benefit of the coparceners in the family; or
b) Whether the person in whose name the property is held is trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
37.The object & purpose of the Benami Transaction Act is to prohibit the right to recover property held benami. It is own case of the plaintiff that he purchased suit property in the name of defendant no. 1 and thus, this suit is also barred under S. 4 of the Benami Transaction (Prohibition) Act, 1988. It is well settled that the Benami Transaction Act is retrospective in its operation (See: AIR 2001 All 366).
38.At this juncture, it would be worthwhile to reproduce Section 34 of the Specific Relief Act, which is as under:
"Section 34 - Discretion of court as to declaration of status or right :Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in Suit No. 628/2012 Page No. 24 of 26 existence, and for whom, if in existence, he would be a trustee."
39.From the aforesaid, it is clear that one of the ingredients which the plaintiff has to satisfy in order to get the relief of declaration is that the plaintiff has to show that the plaintiff is entitled to any legal character, or to any right as to any property. As discussed, above, the plaintiff has failed to prove his ownership with respect to the land or even the superstructure over the suit property and thus has no right, title or interest in the suit property. Thus, is not entitled to the decree of declaration.
40.The present suit is also not maintainable as the ancillary reliefs of cancellation of sale deed Ex. PW1/10 and mandatory injunction of demolition of the superstructure existing at sight and possession of the suit property, since as discussed above the plaintiff is not in the possession of the suit property, has not been sought by the plaintiff thus, this suit is barred by proviso to S. 34 of the Specific Relief Act.
41.As regards the contention that the suit is barred by limitation since this suit has been filed in 2002 and the sale deed is of the year 1978, is without any merits since as per Article 58 of the Schedule to the Limitation Act, the period of limitation to file a suit for declaration is 3 years from the date when the right to sue Suit No. 628/2012 Page No. 25 of 26 first accrues. In the present case as per the plaint, the right to sue for the first time accrued on 2325/4/2002 when for the first time the defendant no. 1 claimed himself to be the owner of the suit property and the present suit having been filed on 10/5/2002 is within the period of limitation.
In view of the foregoing discussion, the plaintiff is not entitled to the relief of declaration and injunction as prayed for.
These issues are accordingly decided in favour of the defendants and against the plaintiff.
42.Relief:
In view of the foregoing discussion, since the plaintiff has failed to prove his case, therefore, the suit is hereby dismissed. The parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Announced & signed in the ( Snigdha Sarvaria)
open court on 09.09.2014 Civil Judge/Central05/Delhi
Suit No. 628/2012 Page No. 26 of 26