Delhi District Court
Ramesh Chand vs Satya Bhushan on 5 September, 2019
1
IN THE COURT OF SH. DIG VINAY SINGH : ADJ-2
NORTH WEST : ROHINI : DELHI
CS. No. 75294/2016
Ramesh Chand
S/o Sh. Wazir Chand
R/o 611/38, Tri Nagar,
Delhi - 110035 .... Plaintiff
Versus
1. Satya Bhushan
S/o Sh. Wazir Chand
R/o B-326, Lok Vihar,
Pitam Pura, Delhi
2. Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, New Delhi ...... Defendant
Date of institution : 21.07.2005
Date of arguments: 16.08.2019
Date of judgment : 05.09.2019
JUDGMENT
1. This is a suit for Partition, Rendition of accounts, Injunction, Declaration and Cancellation of a Conveyance deed. Initially, the suit was filed against Satya Bhushan, the defendant no. 1 only (D1 for short). The initial suit filed was for Partition, Rendition of accounts and Injunction only. Subsequently, Delhi Development Authority (DDA) was impleaded on 06.08.2009 as defendant no. 2 (D2 for short), and additional prayer of Declaration and Cancellation of Conveyance deed was included.
CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 1 / 35 2
2. The plaintiff is younger brother of D1. The case of the plaintiff is that one Kuldeep Rai was original allottee and in possession of plot no. 326, B Block, CPWD Government Servant Co-operative House Building Society Ltd., New Delhi, popularly known as Lok Vihar, Pitam Pura, Delhi. On 22.08.1985, vide an agreement to sell, GPA, Will etc., Kuldeep Rai sold the property for a consideration of Rs. 47000/-. It is claimed that the consideration was paid equally by the plaintiff and D1. Whereas the agreement to Sell, Will and other documents were executed in favour of D1, but the power of attorneys were executed in favour of the plaintiff. Those power of attorneys were got registered at Noida on 09.12.1985. All original documents of property were kept with the D1. Subsequently, a single storey house was constructed on the plot, with equal contribution of the plaintiff and D1. In August 1986, an application was given to the then electricity supplying agency, namely DESU, for a new electricity connection at the suit premises by the plaintiff; a gas connection was obtained by the plaintiff in October 1986; a FIAT Car was purchased by the plaintiff in 1990, which always remained parked in a portion of the suit property. Plaintiff further avers that there were two more brothers of the parties, but no one except the plaintiff was residing with the parents and looking after the parents who were old and aged and thus the plaintiff was compelled to reside in another house no. 611/38, at Tri Nagar, Delhi, primarily because the parents did not want to shift to the suit property. As per plaint, at the time of filing suit, father of parties was alive, was in full senses and, was able to walk, but it was claimed that he could not go out of the house. Subsequently, D1 filed a suit for possession qua the Tri Nagar property against the plaintiff, which is stated to have been dismissed by this time. Plaintiff avers that D1 refused to partition the suit property and a notice dated 01.07.2004 was sent to him by the plaintiff. In reply dated 09.08.2004, D1 claimed that he has got the property CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 2 / 35 3 converted to free hold from lease hold from D2, but did not supply the details. Plaintiff claims that he being registered power of attorney holder of the seller Kuldeep Rai, any conveyance deed procured from D2 by D1 must be based on forged and fabricated documents, not affecting the rights of the plaintiff and the plaintiff was neither asked to execute any document for conversion of property nor he signed or executed any such document. It is also claimed that the agreement to sell produced by the defendant in the Court was forged as the name of D1 was incorporated in that agreement to sell after forging the signatures of Kuldeep Rai on the third page and then getting it witnessed by other set of witnesses. The agreement to sell was also submitted by D1 to the Collector of Stamps in 1994 without any cause or occasion, just to lend credence to it. It is averred that the actual power of attorney executed by Kuldeep Rai in favour of plaintiff has not been produced by the D1 and, the GPA relied upon by the D1 for getting the property freehold, was forged. Based on these averments, it is claimed that conveyance deed dated 27.05.1999 in favour of D1, is liable to be declared nullity and is liable to be canceled. Accordingly, a decree of partition of the suit property; decree of rendition of accounts qua exclusive user charges for half undivided share in the suit property; decree of permanent injunction against creation of third- party interest; decree of declaring the conveyance deed as illegal and invalid, are prayed along with the cost of the suit.
3. D1 contested the suit claiming that the plaintiff has no right, title or interest in the suit property which is exclusively owned by D1 as its sole owner. It is also averred that plaintiff was never in possession of any portion of the suit property; the suit was undervalued as the market value of the suit property was 70-80 Lakhs; the plaintiff, his wife and his children never informed their respective employers / other institutions about their address being that of the suit property, which shows that no CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 3 / 35 4 member of plaintiff's family was ever in occupation of the suit property or any portion thereof. It is averred that D1 exclusively purchased the suit plot under the documents dated 22.08.1985 and no document was executed in favour of the plaintiff. It is also averred that the vacant physical possession of the plot was given to D1 only; D1 got sanctioned the building plan in 1986 and exclusively constructed the property in 1986-87; D1 alone was paying property tax of the suit property; D1 applied for conversion into free hold from lease hold to the D2 in 1999 and paid the conversion charges and got the conveyance deed in his favour; Kuldeep Rai expired on 04.02.2001 and; the plaintiff has no right whatsoever in the property. It is also claimed that assuming, though not admitting, the plaintiff had power of attorney in his favour, upon the death of the principal, i.e. Kuldeep Rai, the plaintiff is left with no right and the GPA stands automatically revoked. It is also claimed that so called registration of GPA at Noida by the plaintiff was illegal. Regarding parking of car, it is claimed that sometimes the plaintiff used to park the car for safety in the suit property, whenever plaintiff used to go out of town.
4. D2 (DDA) claims that the property in question was allotted to Kuldeep Rai on 09.12.1985 under a perpetual lease and subsequently the D1 applied for conversion and on completion of formalities by him the conversion was allowed and the conveyance deed was executed on 27.05.1999 in favour of D1. It is stated that if any fraud is found to be perpetuated by D1, D2 shall take appropriate action.
5. In replication to the WS of both the defendants the plaintiff reiterated the averments of the plaint. In addition, in the replication to the WS of D1, plaintiff averred that he and his wife were salary earners and they used to keep their savings with father of parties and, on 20.08.1985 the plaintiff took back Rs. 25,000/- from his father through a self / bearer cheque CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 4 / 35 5 from the account of his father held in PNB, Lawrence Road and that amount was contributed towards consideration for purchase of the suit property as share of the plaintiff. It is also averred that initially D1 used to collect contribution of property tax from the plaintiff but after their relations deteriorated, D1 stopped taking that contribution and all the documents qua property were with D1.
6. The suit was initially filed in Hon'ble High Court as at that time the pecuniary jurisdiction was with Hon'ble High Court. Vide order dated. 21.07.2005 one Local Commissioner (LC) was appointed by the High Court to establish possession and parking of the car. The LC in his report dated 20.08.2005 mentioned that though car was parked near the gate, but the entire ground floor of the property was in possession of D1.
7. From the pleading of parties, following issues were framed: -
1. Whether the defendant no.1 is not the sole owner of the property no. B-326, Lok Vihar, Pitam Pura, Delhi? (OPP)
2. Whether the plaint has not been properly valued for the purposes of Court fee and jurisdiction? (OPD-1)
3. Whether the plaintiff is entitled to claim partition of the suit property as also a decree of rendition of accounts? (OPP)
4. Whether the plaintiff is entitled to get a decree of cancellation of the Conveyance Deed executed by defendant no.2 in favour of defendant no.1? (OPP)
5. Relief.
8. In support of its case, the plaintiff examined himself as PW-1 by tendering his affidavit in evidence Ex.PW1/A. In his affidavit, plaintiff reiterated averments of his pleadings. Although, the plaintiff exhibited CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 5 / 35 6 certain documents in his affidavit in evidence as Ex.PW1/1 to 1/20, but some of those documents were only photocopies and were de-exhibited on 26.09.2014 when the plaintiff entered the witness box and tendered his affidavit. The documents proved by the plaintiff/de-exhibited by the Court can be conveniently understood from the following table: -
Exhibit Number / Mark Description of Document
Ex.PW1/1 & 2 Site plan of suit property
Ex.PW1/3 (Ex. P1) Perpetual lease dated. 09.12.1985 in
favour of Kuldeep Rai by DDA (D2)
Ex.PW1/4 (de-exhibited Photocopy of bank account statement
and given Mark A) of father of parties.
Ex.PW1/5 Building Sanction Plan of suit property
Ex.PW1/6 (de-exhibited Photocopy of DESU Cash receipt
and given Mark B) dated. 05.08.1986
Ex.PW1/7 (de-exhibited Photocopy of DESU application for
and given Mark C) electricity meter dated. 05.08.1986.
Ex.PW1/8 Electricity Bill for the period February-
April 2002 in the name of plaintiff
Ex.PW1/9 Gas connection receipt in the name of
plaintiff
Ex.PW1/10(de-exhibited Acknowledgment Slip for registration
and given Mark D/ Mark cum demand note dated 28.09.1990.
1/10)
Ex.PW1/11(de-exhibited RC of Car dated. 01.05.1989
and given Mark E)
Ex.PW1/12 Car Insurance Policy
Ex.PW1/13 Certified Copy of suit filed by defendant
against the plaintiff and WS filed by the
plaintiff qua another property.
Ex.PW1/14 & 15 Legal Notice dated. 01.07.2004 by
plaintiff to defendant with its postal
receipts
CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 6 / 35 7 Ex.PW1/16 Reply dated. 09.08.2004 by the defendant to the notice of plaintiff Ex.PW1/17 Certified copy of GPA dated.
22.08.1985 executed by Kuldeep Rai in favour of the plaintiff.
Ex.PW1/18 Certified copy of SPA dated.
22.08.1985 executed by Kuldeep Rai in
favour of the plaintiff.
Ex.PW1/19 Notice U/O 12 Rule 8 CPC dated.
22.11.2013 by the plaintiff to the
defendant seeking production of
documents mentioned therein.
Ex.PW1/20(de-exhibited Photocopy of complaint case lodged by
and given as Mark F) the plaintiff against the defendant in
November 2004.
8.1. It would be pertinent to mention here that the witnesses in documents Ex.PW1/17 & 18 are one Darshan Singh and Vijay Kumar. It would also be pertinent to mention here that these two documents, claimed to be certified copies of the GPA and the SPA, the stamp paper on which these two certified copies are issued were purchased on 18.06.1998 in the name of Kuldeep Rai as is revealed from the stamp vendor's stamp on the back side of the stamp paper. It would also be pertinent to mention here that the certified copy of GPA doesn't contain the date of execution of the attorney, as the relevant column are blank on the third and last page, but this document on the third and last page does mention in handwritten endorsement that it was registered on 22.08.1985. No one from the Sub-Registrar's office, where these two documents were allegedly registered, was examined by the plaintiff.
8.2. In the cross examination, the plaintiff denied suggestion of D1 that the documents Ex.PW1/18 & 1/19 were forged and fabricated. The plaintiff also claimed that when the suit was filed, he was living in the suit CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 7 / 35 8 property, but in the next breath stated that he was residing at Tri Nagar since 1962 and that thereafter he shifted to the suit property in 1985 for some time. But then there was no such claim by the plaintiff qua residing in the suit property at any point of time in his pleadings. In the cross examination, the plaintiff also claimed that suit property was constructed for Rs. 2.25 Lakhs, out of which he paid Rs 1.12 Lakh and that he took that money as loan from his father in law and father. Admittedly, no such pleading exists in the plaint and no documentary proof of loan was placed on record. On being asked, he claimed that he does not remember if he disclosed this loan in his income tax return or whether he disclosed it to his employer being a government servant. Regarding payment of share of house tax, he deposed that he used to pay in cash.
9. On the other hand, the defendant no 1 examined himself as DW-1 by tendering his affidavit in evidence Ex. D1. He relied upon documents Ex.DW1/1 to 1/17. At the time when these documents were being exhibited, the plaintiff objected to the mode of proof of these documents and the objection was kept pending for decision at the final stage. The documents of D1 are; Ex.DW1/1 is original agreement to sell dated 22.08.1985 bearing signature of the D1 and Kuldeep Rai; Ex.DW1/2 is Will dated 22.08.1985 executed by Kuldeep Rai in favour of D1, which is a registered document; Ex.DW1/3 is original receipt dated 22.08.1985 signed by Kuldeep Rai, which is also a registered document; Ex.DW1/4 is an affidavit dated 22.08.1985 signed by Kuldeep Rai; Ex.DW1/5 & 6 are applications for transfer of membership and change of address to the Secretary of the Society signed by Kuldeep Rai; Ex.DW1/7, 8 & 9 are attested certified true copies issued by MCD for House Tax, addressed to D1; Ex.DW1/10 is conveyance deed in favour of D1 by D2 in original; Ex.DW1/11 is communication dated 10.05.1999 sent by D2 to the D1 in original; Ex.DW1/12 is authority letter issued by Kuldeep Rai in favour of CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 8 / 35 9 the D1, also bearing signatures of the D1 in original; Ex.DW1/13 is electricity bill for the period October to December 2005; Ex.DW1/14 is water bill for the period January to June 2012 in original; Ex.DW1/15 to 17, respectively, are copy of ration card, election I card and, one bank slip dated 20.08.1985 qua pay order for consideration of sale amount in the name of defendant, and in favour of Kuldeep Rai, the originals of which were seen and returned on 27.11.2017. Accordingly, all these documents were indeed proved in accordance with law and the objection of the plaintiff as to mode of proof is nothing but fallacious and seems to have been raised for the sake of raising objection.
9.1. In the cross examination, D1 maintained the stand that plaintiff never went with him for meetings with the seller or at the time of preparation of documents. He claimed that the Will and Receipt was witnessed by the same set of witnesses, whereas the agreement to sell had a different set of witnesses and he did not remember who witnessed the GPA. Here, it would be relevant to mention that the agreement to sell is witnessed by one Inderjeet Rai and one Rajeev Bhandari, whereas the Will and Receipt are witnessed by Darshan Singh and B. K. Vashisht (Advocate). During cross examination, D1 admitted that in the agreement to sell Ex.DW1/1, on the third and last page his name was hand written in para 12 and it was not typed. However, it may also be noted here that the first page of this agreement indeed contains typed name of the D1 on the fourth line from the top. D1 however denied the suggestion that Ex.DW1/1 was a forged document and therefore it did not bear his typed name on third page, whereas the Will and the Receipt had his typed name. He also denied the suggestion that the agreement to sell Ex.DW1/1 was a different one from the one actually executed. He denied the suggestion that on 20.08.1985 he was handed over a self cheque of Rs. 25,000/- by his father in lieu of the share of the plaintiff or that CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 9 / 35 10 therefore the property was jointly purchased by the plaintiff and himself. He was specifically asked as to where the original GPA, on the basis of which the property was got converted to free hold from D2 and a copy of which was submitted to the D2, was? The witness replied that the original was submitted and lying with the D2 and that he never applied with the D2 for return of the original GPA. It may be mentioned here that on 12.07.2019, the Assistant Director of D2 give a statement in the Court that the original GPA was not with D2 as D2 did not retain it and the original must be available with D1. The copy of said GPA from the record of D2 was taken on record as Mark Z. D1 in his cross examination also admitted that there was a gas connection in the name of the plaintiff in the suit property, but clarified that it was only for some time as thereafter he got the connection in his own name.
9.2. DW-2 Ram Chander, from DDA proved Ex.DW2/1 comprising of 31 pages regarding conversion of the property into freehold. It includes copy of GPA purportedly executed by Kuldeep Rai in favour of D1 with date of execution as 22.08.1985. The witnesses on this document are Inderjeet and Rajeev. In his cross examination the witness stated that he has no personal knowledge as to the procedure adopted for conversion of property and the Assistant Director / Deputy Director of D2 were competent to depose about it.
9.3. DW-3 Shivajeet Yadav proved registration of Receipt dated 22.08.1985 between Kuldeep Rai and the D1, as registered in the Sub-Registrar's Office, as Ex.DW3/1.
9.4. DW-4 N. K. Maurya from Property Tax Department of MCD proved Ex.DW1/7 to 1/9, which are attested certified true copies of the fixation of rateable value of the property, assessment proceedings etc. CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 10 / 35 11 9.5. DW-5 Anup Singh proved the registration of Will in favour of D1, executed by Kuldeep Rai on 22.08.1985 and registered on that very day, as Ex.DW5/1.
10. I have heard Ld. Counsels for both the sides and have also perused the written submissions / synopsis filed by both the sides, as also the judgments relied upon. The contentions of the respective sides as also the judgments cited are being dealt with in the issue wise findings as below.
11. Issue no.2 Whether the plaint has not been properly valued for the purposes of Court fee and jurisdiction? (OPD-1) 11.1. Onus to prove this issue was on D1 who had claimed that the suit was not valued properly for the purposes of Court Fee and jurisdiction. In para 19 of the amended plaint, the suit has been valued for Rs. 40 Lakh for the relief of partition as tentative market value on which the plaintiff paid fixed Court Fee of Rs. 20/- claiming to be in occupation of the part of the property. For the relief of rendition of account of Rs. 4 Lakh, Court Fee of Rs. 20/- was paid and the plaintiff undertook to pay the Court Fee at the time of adjudication of rendition of account. For relief of injunction, fixed Court Fee of Rs. 13/- on the valuation of Rs. 130/- was paid. For the relief of declaration and cancellation of conveyance deed fixed Court Fee of Rs. 20/- was paid.
11.2. Admittedly, in the report of local commissioner at the initial stage of the suit, it was mentioned that the defendant is exclusively in possession of the suit property and only car of the plaintiff was found parked. The defendant in his WS did not mention as to what was the market value of the property as per the defendant. Neither of the sides led any evidence CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 11 / 35 12 on this aspect of the matter. Particularly D1 did not depose anything about market value of the property being anything else than the market value claimed by plaintiff. The case of the plaintiff was that he is in constructive possession of the suit property and therefore he was required to pay fixed court fee on the relief of partition. In the evidence however the plaintiff failed to prove his physical or constructive possession in the property. Merely because the electricity bill, the land line telephone connection, the gas connection existed in the property in the name of plaintiff at some point of time after the property was constructed, even if so assumed to be in the name of plaintiff, does not prove that the plaintiff was in its possession at the time of filing of suit, physically or constructively. The stand of D1 has been consistent that he was exclusive owner and in exclusive possession and that plaintiff was never in possession of the property at any point of time. The plaint did not aver a single word that the plaintiff was in possession of the property except the fact that in para 9 it was claimed that since his car was parked in the suit property, the plaintiff was in possession of the said portion since 1990. Rather, the averments in the plaint reflect that plaintiff continued to live in Tri Nagar. It seems to be a case of cleverly drafted pleadings in order to escape payment of court fee. Though, in the cross- examination plaintiff claimed that he was living in the suit property when the suit was filed but the said fact was belied in the report of the local commissioner, as also in evidence. Claim of plaintiff that he shifted to the suit property in 1985 for some time before he shifted back to Tri Nagar is belied from his own statement in cross examination where he stated that he is residing in Tri Nagar since 1962. There was no averment in the plaint as to the period of stay of plaintiff in the suit property. Accordingly, the plaintiff has to pay ad valorem court fee on the market value of the property valued by him i.e. on Rs. 40 Lakhs. Let that court fee CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 12 / 35 13 be paid by the plaintiff within 15 days of this judgment.
11.3. Regarding the cancellation of conveyance deed, since the plaintiff was not party to the execution of the conveyance deed, therefore the plaintiff was not required to pay court fee on the market value of the property or the value mentioned in the conveyance deed.
11.4. Qua relief of injunction, appropriate valuation and court fee was paid.
11.5. Qua relief of rendition of accounts, fixed court fee was paid with a prayer that whatever amount is found to be due, court fee on that amount shall be paid. Whether the plaintiff is entitled to any relief of rendition of account and/or for any other relief, is being decided herein after and, if required, the plaintiff shall be directed to pay court fee on the relief of rendition of accounts.
11.6. This issue is accordingly decided.
12. Issue no. 1, 3 & 4 The issues as to whether the property was exclusively owned by D1 or the plaintiff is entitled to partition, rendition of account or cancellation of conveyance deed are interconnected and are therefore dealt with simultaneously.
12.1. Those three issues as framed on 05.02.2013, are as follows: -
1. Whether the defendant no.1 is not the sole owner of the property no. B-326, Lok Vihar, Pitam Pura, Delhi? (OPP)
3. Whether the plaintiff is entitled to claim partition of the suit property as also a decree of rendition of accounts? (OPP)
4. Whether the plaintiff is entitled to get a decree of cancellation of the Conveyance Deed executed by defendant no.2 in favour of CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 13 / 35 14 defendant no.1? (OPP) 12.2. Burden to prove all these issues was on the plaintiff. As is evident from the above discussion, the plaintiff in the initial suit simply claimed that Kuldeep Rai transferred all his right, title and interest in the plot by executing the documents and plaintiff and D1 paid Rs. 47,000/- in equal contribution to the seller and thus the plaintiff and D1 became joint owners. The exact amount of contribution and the manner and mode of contribution was not even mentioned in the plaint. When D1 in his WS denied that fact, for the first time in the replication it came to be mentioned by the plaintiff that out of Rs. 47,000/-, the plaintiff contributed Rs. 25,000/-. This amount and the manner of payment came to be pleaded by the plaintiff for the first time in the replication. Plaintiff for the first time in the replication claimed that he and his wife used to keep their saving with father of plaintiff and D1 and on 20.08.1985 through a self / bearer cheque from the account of father a sum of Rs. 25,000/- was withdrawn and that amount was contributed. This fact was not even mentioned in the plaint. Similarly, in the plaint the plaintiff claimed that he contributed to the construction of the property, but did not disclose either the amount of construction and the share of the plaintiff and, as to from where it was paid. The details of construction and contribution was mentioned by the plaintiff for the first time in his cross examination. The plaintiff did not disclose this amount of construction either in the pleadings or in his affidavit in evidence.
12.3. In order to prove the factum of payment of Rs. 25,000/- at the time of purchase of property the plaintiff although marked a photocopy of statement of account of his father as an exhibit, but it was de-exhibited by Court and it was given Mark A. The plaintiff did not prove the said statement of account in the evidence in accordance with law. The said CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 14 / 35 15 statement of account is therefore not proved.
12.4. The counsel for defendant drew attention to document Ex.DW1/P1 in which it is mentioned that no such account was found at PNB, Lawrence Road. This document was exhibited in the cross examination of the plaintiff as manager from PNB, Lawrence Road was summoned on that day with the concerned account details and the manager gave a written communication Ex.DW1/P1, according to which no such account was found.
12.5. Plaintiff relied upon the case of Ghurahu v. Sheo Ratan, 1980 SCC OnLine All 382 : AIR 1981 All 3, wherein it was observed that if a document is twenty years old and the court is satisfied of its proper custody it may be presumed that signature and any other part of document which purports to be in handwriting of any particular person is in that person's handwriting; that the document was executed by the person by whom it purports to have been executed and; that the document was attested by the person by whom it purports to have been attested. But the proof of signature or handwriting does not establish that whatever is stated in document is also correct. That has to be proved not only by production of document but by proving its contents as well. The said judgment is of no application in favour of the plaintiff as to the statement of bank account.
12.6. Qua the photocopy of bank statement relied by the plaintiff, D1 relied upon the case of Arati Bhargava v. Kavi Kumar Bhargava, AIR 1999 Del 280, where it was observed that it is a well settled principle of law that a photocopy of a copy is not admissible in evidence under Section 65 of the Evidence Act.
12.7. The argument of the plaintiff that Mark A, i.e. the statement of account of his father being a 30-year-old document has to be admitted in the CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 15 / 35 16 evidence, is fallacious. The photocopy of that document was filed on record. Had this statement of account been original, things could have been different. But on the basis of that photocopy, genuineness of this document cannot be claimed by the plaintiff, particularly when the bank manager gave a written communication Ex.DW1/P1 according to which no such account was found.
12.8. The next best way of proving the fact of contribution was by examining father of plaintiff, who could have proved that the plaintiff used to give savings to the father and that the said amount was given by the father to the plaintiff for the purpose of half share of sale consideration. Father of plaintiff was not examined in the suit. As per averments in the plaint, father was alive and was in a position to walk at the time when the suit was filed. Father died subsequently. But then the plaintiff never made an effort to get his father examined in this matter to clinch the issue, even under Order X CPC.
12.9. When the plaintiff was questioned in the cross examination as to whether he had disclosed in his office about purchase of this property, the plaintiff admitted that he did not. Admittedly, he was a government servant. The plaintiff has not placed any document on record to show that he had informed his government department about purchase of the suit property.
Similarly, no document has been proved by the plaintiff that he informed his department about construction of the suit property and paying consideration for it. Under CCS Rules / All India Service Rules, whichever were applicable to the plaintiff, it was necessary that a government servant informs his department about purchase of immovable property as also about its construction.
12.10. Interestingly, plaintiff claims that he paid half of the construction amount of Rs. 1,12,000/- by arranging that amount as loan from his father in law CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 16 / 35 17 and his father. Again, no intimation of loan / permission of loan was given / taken from the government department as per those rules. Absence of those intimations to the department of plaintiff is a strong indication that the plaintiff did not contribute in the purchase of the property / construction of property. Neither Father in law, nor father was examined to prove this fact. No proof of loan is put forth.
12.11. As against this, D1 has proved Ex.DW1/17 which is a pay-in-slip dated 20.08.1985 qua the pay order of Rs. 47,000/- in favour of Kuldeep Rai and drawn on the account of D1. Thus, the plaintiff, on whom the burden to prove fact of contribution of half of the amount was, miserably failed to prove it.
12.12. The next best case of the plaintiff is that GPA was executed by Kuldeep Rai in favour of the plaintiff on 22.08.1985 which was registered in Noida, as at that time GPA were not allowed to be registered in Delhi. No one was called by the plaintiff from the Sub-Registrar Office, Noida to prove registration of GPA in favour of the plaintiff. Anyhow, the plaintiff exhibited PW1/17 & 18 which are certified copies of the so-called registration. These certified copies were obtained sometime in June 1998 as the date on the back side of the stamp papers on which these certified copies exist, bear that date and no other date of preparation of certified copies is evident. In this regard reliance is placed by the plaintiff upon order dated 21.08.2017 passed by the Ld. Predecessor Court wherein it is recorded that the plaintiff was given liberty to obtain certified copies and file the same on record and the Court will take judicial notice thereof.
12.13. Assuming that Ex.PW1/17 & 18 were actually executed and registered in the manner claimed by the plaintiff, the plaintiff does not become co- owner.
12.14. As per case of plaintiff, the plaintiff was appointed attorney under GPA CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 17 / 35 18 and SPA since he contributed in the sale consideration. Admittedly in these two documents, even if they are assumed to be correct, there is no mention of passing of any consideration from the plaintiff to Kuldeep Rai. The case of plaintiff, even if it is assumed that he was indeed appointed as attorney, does not make him joint owner of half share in the property. There is absolutely nothing contained in the GPA in favour of the plaintiff that the plaintiff in any manner is co-owner with D1 for the suit property or that in any manner the plaintiff has any title or interest in the suit property. Affidavit Ex.DW1/4 executed by Kuldeep Rai in favour of D1 clearly mentions that the agreement to sell was executed in favour of D1 against consideration received from him and that vacant possession of the property was handed over to him, i.e. D1.
12.15. In this regard, D1 has relied upon the case of Smt. Gurmeet Kaur Vs Shri Harbhajan Singh and Anr. 2017 SCC OnLine Del 8529, where it was observed as follows;
"12............ (ii) In fact the courts below have completely ignored the law and caused a gross illegality and perversity in accepting the general power of attorney Ex.DW3/1 executed by the erstwhile owner Sh. Pawan Kumar in favour of the respondent no. 1/defendant no. 1 as conferring title of the suit property to the respondent no. 1/defendant no. 1 inasmuch as a general power of attorney before the same can create rights in an immovable property must be executed for consideration in terms of Section 202 of the Indian Contract Act. It is only a general power of attorney which is supported by consideration which has the effect of being irrevocable and conferring rights in an immovable property. It was never the case of the respondent no. 1/defendant no. 1 that the general power of attorney Ex.DW3/1 was executed for consideration paid by the CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 18 / 35 19 respondent no. 1/defendant no. 1/Sh. Harbhajan Singh to the erstwhile owner Sh. Pawan Kumar. In fact, as already stated above, consideration was paid by the plaintiff Sh. Sarwan Singh to Sh. Pawan Kumar as duly recorded in the receipt Ex.PW 1/3, and a sum of Rs. 2.50 lacs out of the total consideration of Rs. 3 lacs was paid by a bank draft to Sh. Pawan Kumar by Sh. Sarwan Singh. Therefore, the general power of attorney Ex.DW3/1 cannot be a basis for claim of any ownership in the suit property by the respondent no. 1/defendant no. 1 and therefore the courts below have committed complete illegality and perversity in dismissing the suit for possession and damages.
(iii) At this stage the different logics of execution of a general power of attorney which is accompanying an agreement to sell is required to be noticed. In the first type of cases by a general power of attorney, the general power of attorney holder acts for and on behalf of the original owner and therefore it is a practice in Delhi that sometimes a general power of attorney is executed in favour of a third person and in whose name the agreement to sell is not executed, and this is done so as to enable the third person to act as an independent person on behalf of the executant of the general power of attorney for the subsequent execution of the sale deed of the property in favour of the buyer under the agreement to sell and also for taking further steps with respect to the property transferred. In second type of cases a general power of attorney is not executed in favour of a third person but is directly executed in favour of the transferee under the agreement to sell, and who then acts in two capacities i.e. one as a transferee of the immovable property having the benefit of the doctrine of part performance and another as the irrevocable attorney holder of the original owner and CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 19 / 35 20 having rights under Section 202 of the Indian Contract Act. In the third type of cases, two general power of attorneys are executed by the transferor of an immovable property; one being in favour of the transferee and another being in favour of a third person; and which last/third position is the factual position in the present case. This third position has the advantages of both the first and second positions as stated above. In any case, and as stated above, any general power of attorney executed in favour of the respondent no.
1/defendant no. 1/Sh. Harbhajan Singh being Ex.DW3/1 will not give any rights in the suit property to the respondent no. 1/defendant no. 1 inasmuch as rights which are created are created in a transferee under an agreement to sell and which was the plaintiff Sh. Sarwan Singh, with the fact that as regards a general power of attorney it is only a general power of attorney given for consideration which is irrevocable under Section 202 of the Indian Contract Act and in the facts of this case admittedly no consideration is pleaded or proved to have been passed from respondent no. 1/defendant no. 1 to the erstwhile owner Sh. Pawan Kumar. Hence, no rights in the suit property were ever transferred or created by the erstwhile owner Sh. Pawan Kumar in favor of the respondent no. 1/defendant no. 1."
12.16. D1 has also relied upon the case of Hardip Kaur Vs. Kailash & Anr.
(2012) 193 DLT 168, where it was held as follows;
" 18. ..................(i) In Harbans Singh v. Shanti Devi, 1977 RLR 487, the seller had executed an agreement to sell in favour of the purchaser and the General Power of Attorney in favour of her husband. The General Power of Attorney was stated to be irrevocable and it authorized the attorney to further sell the subject property. The seller CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 20 / 35 21 later canceled the agreement to sell and all other documents including the General Power of Attorney. The Trial Court held the General Power of Attorney to be irrevocable which was challenged in appeal before this Court. The Division Bench of this Court held that the General Power of Attorney was executed for a valuable consideration and the agent had an interest in the property and, therefore, the General Power of Attorney was irrevocable.
This Court negatived the seller's contention that a contract of sale 'of itself' does not create any interest in or charge on immovable property under Section 54 of the Transfer of Property Act, 1988 and, therefore, the purchaser cannot be said to have an interest within the meaning of Section 202 of the Contract Act. It was held that the purchaser had an interest in the immovable property for the purposes of Section 202 of the Contract Act, if not for the purposes of Transfer of Property Act and Registration Act. ..............
It is only in law that the attorney became an agent of the plaintiff. But this agency was only with a view to serve the purpose of the purchaser. His interest in this transaction was the same as that of the purchaser. It was, therefore, the interest of the attorney that the property which was the subject-matter of the agency should be conveyed by the plaintiff to the purchaser.
The agreement to sell, General Power of Attorney, receipt, affidavit, will and indemnity bond executed contemporaneously constitute one transaction and they have to be read and interpreted together as if they are one document."
12.17. D1 has also relied upon the case of Arbinder Singh Kohli & Anr. Vs. Gobind Kaur Kohli 2018 SCC OnLine Del 9663, where none of the documents filed by the Plaintiff were disputed by the Defendants. The CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 21 / 35 22 Defendants, however, relied on only one document i.e. copy of a Power of Attorney dated 23rd July, 2002 purportedly executed in favour of Defendant No. 2. The sale consideration for the suit property was paid only from the bank account of the Plaintiff. Defendant No. 1 had not filed a single bank statement from any of his accounts to show that he had contributed to the purchase of the suit property. The defence of joint contribution to the purchase was, therefore, rejected. It is held as follows;
"35. A Power of Attorney merely permits the holder to act as the agent of the person executing the attorney. This Power of Attorney on a standalone basis is merely an agency and cannot vest a title in an immovable property. The execution of the Power of Attorney without any consideration thereof, on a standalone basis merely constitutes an agency and nothing more. Even though the Power of Attorney can be termed as being irrevocable, the nature of the documents cannot be changed . This General Power of Attorney has to be tested as against the entire set of documents executed in favour of the Plaintiff. The pattern which clearly emerges is that the Plaintiff purchased the suit property from Shri Suresh Chand Kapoor and the Power of Attorney was executed in favour of her daughter-in-law by the son of the vendor only to enable the registration of the sale deed at a future point of time. The General Power of Attorney, without the remaining set of documents, does not constitute a transfer of title.
38. Thus, the irrevocable General Power of Attorney in favour of Defendant No. 2 does not have the effect of transferring any title in favour of Defendant No. 2. The Plaintiff can in fact use the Agreement to Sell and the General Power of Attorney executed in favour of her husband to get the conveyance deed executed in her favour as held in Suraj Lamps, if and when the same becomes CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 22 / 35 23 possible or permissible.
40. The Plaintiff herein, is not seeking protection of her possession under Section 53A of the TPA in the present case. She, having purchased the property through various documents namely, Agreement to Sell, Will, letter of possession and receipt, is seeking to evict her son and daughter-in-law who she had permitted to stay with her in the suit property. The Plaintiff only needs to establish a better title than the Defendants and not an absolute title. Suraj Lamps (Supra) clearly holds that though sales by Agreement to Sell, Will, etc, are not legally valid modes of transfer, they are permitted to get the transactions already entered into, regularised. Thus, to this extent, Suraj Lamps (Supra), completely protects the Plaintiff's rights. The Plaintiff has taken steps to get the General Power of Attorney in favour of Defendant No. 2 cancelled and get a new Power of Attorney executed in favour of her husband. The parties who have purchased properties by means of Agreement to Sell/Will are entitled to obtain and seek specific performance. Suraj Lamps (Supra) also recognises that on the basis of such documents, even mutations made by the municipal or revenue authorities need not to be disturbed. A General Power of Attorney given amongst family members is also recognised by Suraj Lamps (Supra).
42. As observed by this Court, in Sachin v. Jhabbu Lal, AIR 2017 Del 1, the Plaintiff has established a better right and title to the suit property than her son and daughter-in-law, who were permitted to live in the suit property by her."
12.18. D1 also relies upon the case of Ramesh Chand v. Suresh Chand, 2012 SCC OnLine Del 1985 : 2012 AIR CC 2712, where it was held as;
"2. Before I proceed to dispose of the appeal, and which would turn substantially on the judgment in the case of Suraj Lamps & Industries CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 23 / 35 24 Pvt. Ltd. (supra), it is necessary to reproduce certain paras of this judgment of the Supreme Court, and which paras are paras 12, 13, 14 and 16, and which read as under:--
"12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata, MANU/SC/0547/2005 : (2005) 12 SCC 77 this Court held:
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 24 / 35 25 attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed herein-before, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
............................."
12.19. Thus, even if the GPA and SPA in favour of the plaintiff is assumed to be correct, plaintiff cannot claim ownership or co-ownership in the property.
12.20. The argument of the plaintiff that as per para 15 of GPA Ex.PW1/17 the plaintiff was given right to execute the sale document in favour of any CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 25 / 35 26 one and to sell the property, does not help the case of plaintiff. Assuming that the attorney was executed in favour of the plaintiff, the said attorney was nothing but a delegation of power by Kuldeep Rai to do certain acts on his behalf. No consideration followed or accompanied the GPA from the plaintiff to the seller and therefore, on the basis of the GPA, joint ownership of the suit property cannot be claimed by the plaintiff.
12.21. The argument by the plaintiff that the agreement to sell Ex.DW1/1 filed by D1 is not that agreement which was actually executed by Kuldeep Rai, does not help the case of plaintiff. The plaintiff drew attention of the Court to para 12 of the agreement to sell and argued that when in other documents, the name of D1 was typed why in this paragraph the name was hand written? The best persons to prove that this page was changed subsequently were either Kuldeep Rai or Darshan Singh and B. K. Vashisht, but none of them were examined. The name of D1 is typed on the first page of this agreement to sell and thus, merely because name of D1 is hand written on the last page, it would not make this document forged. No doubt in the agreement to sell Ex.DW1/1 and the photocopy of the GPA in favour of the defendant, forming part of Ex.DW2/1, based on which conveyance deed was executed by DDA, has a different set of witnesses i.e. one Inderjeet and one Rajeev, whereas the Will and receipt Ex.DW1/2 and 1/3 has another set of witnesses namely Darshan Singh and B. K. Vashisht. DW1/2 & 1/3 are registered documents, therefore, prima facie authenticity has to be attached to these two documents. In any case, plaintiff did not claim that Will and receipt Ex.DW1/2 & 3 were not executed by Kuldeep Rai. If it was the case of plaintiff that the third page of agreement to sell was changed by the D1 and therefore it bears signatures of another set of witnesses namely Inderjeet and Rajeev and not the signatures of Darshan and R. K. Vashisht, the best way of proving it was either by examining Kuldeep Rai whose signatures exists on the CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 26 / 35 27 agreement to sell and if Kuldeep Rai was not available for any reason, by examining someone from the family or somebody otherwise acquainted with the signatures of Kuldeep Rai who could have identified his signatures. The first page of agreement to sell indeed bears the name of D1 as the sole purchaser of the property. It is the case of plaintiff himself that the agreement to sell was executed by seller in the name of D1. The agreement to sell was not in the joint name of the D1 and the plaintiff. The plaintiff could have examined Darshan Singh and B. K. Vashisht who were witness to the Will and receipt which were executed with the agreement to sell. Those two witnesses could have thrown some light as to whether the agreement to sell Ex.DW1/1 was the same agreement to sell or a part of it was changed. It may be mentioned here that it's the plaintiff's own case that only attorney was registered in favour of the plaintiff and rest of the documents were executed in the name of D1 by the seller. In absence of examining Kuldeep Rai or anybody acquainted with his signatures, the claim of plaintiff that the last page of the agreement to sell was changed, is nothing more than bare oral allegation. The first page of agreement to sell, the receipt and the Will, indeed indicates that the property was sold by Kuldeep Rai to the D1.
12.22. The argument of plaintiff that the agreement to sell in favour of the D1, Ex.DW1/1 is unregistered, also does not help his case as at that time the agreement to sell were not required to be registered.
12.23. The argument of plaintiff that regarding construction neither the plaintiff, nor D1 proved any document and therefore it can't be said that plaintiff did not contribute or that D1 alone constructed it, is also fallacious as the burden of proof was on the plaintiff. It is his suit, which has to fail if neither side proves the cost of acquisition and construction undertaken.
12.24. The argument of plaintiff that why the D1 did not produce the original CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 27 / 35 28 GPA, which he submitted to the DDA for getting the property converted, also does not help the case of plaintiff, as assuming that the GPA was executed in favour of the plaintiff, as mentioned above he cannot claim ownership.
12.25. Similarly, the argument of plaintiff that the first electricity bill in favour of D1 is of the year 2006, then how D1 was residing there without electricity, gas connection or land line, does not help the case of plaintiff. Even if the gas connection, electricity connection and the landline connection existed in the name of the plaintiff, the plaintiff does not become owner or co-owner of the property. Similarly, mere parking of car at the suit property does not prove ownership or possession of the plaintiff. The defendant argued that car was allowed to be parked as at the time of its parking relations were not strained between the two brothers.
12.26. Similarly, reliance placed by the plaintiff upon the case of Rajinder Pershad v. Darshana Devi AIR 2001 SC 3207 is distinguishable. In that case the postman was examined as AW 2. It was not suggested to him that he was not on duty during the period in question and the endorsement "refused" on the envelope was incorrect. In the absence of cross-examination of the postman, his statement in the chief examination was relied upon. It was held as follows;
"4. ....................... There is an age-old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U.P. v. Nahar Singh [(1998) 3 SCC 561: 1998 SCC (Cri) 850] a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by the opposite party.
CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 28 / 35 29 The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed: (SCC p. 567, para 14) "14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 R 67 (HL)] clearly elucidates the principle underlying those provisions. It reads thus:
'I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.' "
12.27. The contention of plaintiff that Will was not proved as the attesting witness to the Will was not examined also does not help the plaintiff as it is plaintiff's own case that agreement to Sell, Will, receipt, were executed by seller in favour of D1.
12.28. The contention of plaintiff that DW2 to DW5 did not have personal knowledge and therefore those witnesses were not competent is fallacious. All these witnesses simply exhibited the document as per CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 29 / 35 30 record and there was no requirement that these documents proved by them should have been executed in their presence.
12.29. On behalf of defendant, it was also argued that the suit of the plaintiff is barred by law as it is barred under the Benami Transactions (Prohibition) Act, 1988 as the suit has been filed in contravention of Sec. 4 of the Act.
12.30. In reply to this contention, the plaintiff argued that the suit property in the present matter was purchased prior to passing of this Act, which came to be passed in 1988, whereas the suit property was purchased in 1985, therefore the Act doesn't apply.
12.31. It is no more res integra that even if the property was purchased earlier and even if the sale transaction took place prior to the passing of the Act of 1988, no suit or defence is permissible after this Act came into force. Since in this case the property was purchased prior to 1.11.2016 when the Benami Transactions (Prohibition) Act, 1988 was amended and the new Act is now called as the Prohibition of Benami Property Transactions Act, 1988, therefore what will govern the parties is The Benami Transactions (Prohibition) Act, 1988 and not The Prohibition of Benami Property Transactions Act, 1988. The rigors of the Act would apply even if the suit property was purchased prior to the Act coming into force, because the suit was filed after the Act came into force. The suit was filed on 20.07.2005 and it was registered on 21.07.2005.
12.32. Plaintiff relied upon the case of Mithilesh Kumari v. Prem Behari Khare, AIR 1989 1247 Supreme Court, which also does not help the case of plaintiff. In that case it was held that the Act was retrospective in operation and would even apply to pending proceedings. Subsequently, a Division Bench of three Judges in the case of R. Raiagopal Reddy v. P. Chandrasekharan, (1995) 2 SCC 630 : AIR 1996 SC 238 held that the passing of the Act will not affect pending proceedings i.e. the Act will CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 30 / 35 31 not apply where/when a suit has already been filed before passing of the Act taking up the plea that the property was held as benami or when the defences of the property being benami were already taken up before passing of the Act.
12.33. On the other hand D1 relies upon the case of Manoj Gupta Vs. Mrs Manju Rani & Others 2011 SCC OnLine Del 1447, wherein it was held, that any suit with claim of right inhering in the real owner in respect of any property held benami would not be enforceable after the enactment of the Act of 1988 even if such transaction had been entered into prior to 19-5-1988 (date of enactment of Act) and no suit could be filed on the basis of such a plea after 19-5-88. In that case suit was filed in the year 2009 though in respect of transaction/sale deed dt. 1-06-84, which is pertaining to period prior to enactment of Benami Transaction (Prohibition) Act, 1988.
12.34. D1 also relied upon the case of Aparna Sharma & Ors. Vs. Sidhartha Sharma & Anr. (2018) 250 DLT 126, which pertains to the Amended Act which came into force with effect from 1.11.2016. It was observed as follows in para 7.
7. ........................ In the present case, the only documents which are relied upon by the appellant nos. 1 and 2/defendant nos. 1 and 2 are the two power of attorneys dated 5.12.2013, and these attorneys in no manner shows any right, title and interest of the appellant nos. 1 and 2/defendant nos. 1 and 2 in the suit property because these attorneys are simple General Power of Attorneys executed by the respondents/plaintiffs in favour of the appellant nos. 1 and 2/defendant nos. 1 and 2 in order to enable the appellant nos. 1 and 2/defendant nos. 1 and 2 to get the suit property transferred from DDA to the respondents/plaintiffs by execution of CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 31 / 35 32 Conveyence Deed by the DDA in favour of the respondents/plaintiffs. There is absolutely no language contained in the General Power of Attorneys dated 5.12.2013 that the appellant nos. 1 and 2/defendant nos. 1 and 2 in any manner are co-owners with the respondents/plaintiffs for the suit property or that in any manner the appellant nos. 1 and 2/defendant nos. 1 and 2 are shown to have any title or interest in the suit property. Once that is so, appellant nos. 1 and 2/defendant nos. 1 and 2 cannot seek the benefit of Section 2(9)(A)(b)(iv) of the Prohibition of Benami Property Transactions Act, to claim that they are exempted from the bar of the case pleaded by them being hit as a benami transaction under the Act."
12.35. In the case of Probodh Chandra Ghosh v. Urmila Dassi, (2000) 6 SCC 526 it was observed that the transactions may be of the past but the suit, claim or action would not lie subsequent to the coming into force of the Act. What is to be seen in terms of Section 4 is, whether the appellant has filed any suit, claim or action subsequent to the coming into operation of the present Act or not. If suit, claim or action was pending on the date this Act came into force, then it would continue to be adjudicated in accordance with law and bar of Section 4 would not be applicable.
12.36. In the case of Om Prakash v. Jai Prakash, (1992) 1 SCC 710 it was observed that in a suit for recovery of benami property if any appeal is pending on the date of coming into force of Section 4, the appellate court can take into account the subsequent legislative changes.
12.37. In the case of P.E. Lyall v. Balwant Singh, 2012 SCC OnLine Del 34:
(2012) 187 DLT 164 it was held as follows;
"5. ...........the Benami Transactions (Prohibition) Act. 1988 came in to CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 32 / 35 33 force on 19.5.1988. After coming into force of the Benami Transactions (Prohibition) Act, 1988 (hereinafter, referred to as 'the Act'), no suit can be filed to claim rights in a property on the ground that the property was held benami. Similarly, a defence which alleges that a property was benami and the actual owner was someone else, was also prohibited. This was a mandate of Section 4 of the Act. Though the Supreme Court initially in the case titled as Mithilesh Kumari v. Prem Behari Khare, (1989) 2 SCC 95 : AIR 1989 SC 1247 had held that the Act was retrospective in operation and would even apply to pending proceedings, subsequently however, a Division Bench of three Judges in the case of R. Raiagopal Reddy v. P. Chandrasekharan, (1995) 2 SCC 630 : AIR 1996 SC 238 held that the passing of the Act will not affect pending proceedings i.e. the Act will not apply where/when a suit has already been filed before passing of the Act taking up the plea that the property was held as benami or when the defences of the property being benami were already taken up before passing of the Act. ................"
6........................Even though such a suit have been filed prior to 19.5.1988, if before the stage of filing of defence by the real owner is reached, Section 4(2) becomes operative from 19th May, 1988 then such a defence, as laid down by Section 4(2) will not be allowed to such a defendant...................
................In fact, those cases in which suits are filed by real owners or defences are allowed prior to corning into operation of Section 4(2). would form a separate class as compared to those cases where a stage for filing such suits or defences has still not reached by the time Section 4(1) and (2) starts operating. ................".
12.38. In the case of Valliammal v. Subramaniam, (2004) 7 SCC 233 the CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 33 / 35 34 plaintiff's case was that he had purchased the suit land in the name of his wife in order to screen the property from the creditors of his brother. It was observed that;
"12. There is a presumption in law that the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami-holder.
13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. ................"
"16. In law, title to the property vests in the person in whose favour the sale deed has been executed."
12.39. Plaintiff also relies upon the case of Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491, wherein a relief not sought was granted by the Court. That case has no relevance or application in the facts & circumstances of the present case.
12.40. In the above-mentioned facts & circumstances and evidence, not only the plaintiff fails to prove joint purchase and ownership, but also the suit CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 34 / 35 35 of the plaintiff is barred by law, i.e. under the Benami Transactions (Prohibition) Act, 1988, and the three issues have to be decided against the plaintiff. They are so decided.
13. Relief 13.1. In view of decision of above issues, the suit is dismissed. No order as to cost. Decree sheet be prepared. File be consigned to the record room.
Digitally
DIG signed by DIG
VINAY SINGH
VINAY Date:
2019.09.05
SINGH
Announced in the open Court
16:31:50
+0530
on 05th September, 2019. (Dig Vinay Singh)
ADJ-02 (NW), Rohini
Delhi / (R)
CS no. 75294/2016 Ramesh Chand Vs. Satya Bhushan & Anr. Pg... 35 / 35