Punjab-Haryana High Court
Krishan Kumar vs Sushil Kumar Mehta on 25 November, 2014
Author: Amit Rawal
Bench: Amit Rawal
RSA No.4362 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No.4362 of 2014 (O&M)
Date of decision: 25.11.2014
Krishan Kumar ... Appellant
Vs.
Sushil Kumar Mehta ... Respondent
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:- Mr. Namit Gautam, Advocate
for the appellant.
AMIT RAWAL J.
Defendant-appellant is in regular second appeal against
the judgments and decrees dated 17.04.2013 and dated 17.04.2014
of the Additional Civil Judge (Senior Division), Panchkula as well as
Additional District Judge, Panchkula, whereby suit of the plaintiff-
respondent for possession and recovery of damages/mesne profits
was decreed and appeal of the defendant-appellant was dismissed.
Facts as culled out from the plaint, are that the plaintiff-
respondent filed a suit for possession of House No.864, Sector 12, Panchkula (hereinafter referred to as 'the suit property') and recovery of damages/ mesne profits. It was averred in the plaint that plaintiff- respondent is the owner of the disputed house which was initially allotted to Col. Ravinder Iqbal Singh and from whom the plaintiff- respondent had purchased and the Estate Officer, HUDA vide Ex.P1 issued re-allotment letter in his favour. Subsequently, conveyance SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 2 deed was also executed in his favour. Then plaintiff-respondent spent huge amount of money on the construction of the house. Construction was supervised by his father because plaintiff was staying abroad. His father was residing in suit property (house) as a licensee.
As per the case set up by the plaintiff-respondent, in March, 2006, he came to India for completing the renovation work of the suit property, where his family members i.e. wife and two minor children were residing in it and prior thereto i.e. in November, 2005, his father Nandu Ram alias Nand Lal had shifted to House No.180, Sector 19, Panchkula and he took all the valuable articles and household articles with him. Plaintiff was living in the suit property peacefully, but defendant started interfering in his possession and threatened to take illegal and forcible possession of the suit property. It was alleged in the plaint that on 20.05.2006, plaintiff-respondent had left for Iran for his job and shifted his family to Mandi, Himachal Pradesh in his in-laws house as it was not safe for his family to reside in the garage portion of said house because of on going renovation in the remaining portion. It was also alleged that appellant-defendant instigated his father, who lodged false and frivolous FIR No.136 dated 02.04.2006 against him in P.S. Sector 5, Panchkula.
The claim of the plaintiff-respondent was contested by the appellant-defendants. In the written statement, by taking a stand that SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 3 it is Shri Nand Lal @ Nandu i.e. father of the plaintiff, who, had constructed the house and was actually the real owner of the house. As per written statement Shri Nand Lal @ Nandu i.e. father of parties to the lis had filed a civil suit of permanent injunction against plaintiff for defending his rights of ownership and possession. Actually, he was the owner in possession of suit property and defendant was residing with him since December, 1986. Expenses of construction were borne by Shri Nandu Ram. He had purchased disputed plot from Col. Ravinder Iqbal Singh and had received its possession from vendor. Plaintiff tricked his father into getting the plot transferred in his name. Shri Nandu Ram was an old and infirm man, who believed plaintiff and therefore got disputed plot transferred in the name of plaintiff. It was averred that Shri Nand Lal was the real owner and not licensee. The claim of plaintiff was disputed and denied. It was pointed out that no construction material was lying at the spot, meaning thereby that no renovation was being carried out in suit property. Plaintiff never resided in suit property, but he resided in Mandi, Himachal Pradesh. Father of plaintiff never shifted in House No.180, Sector 19. Allegations qua FIR No.136 were also denied and it was claimed that the matter was compounded because Shri Nandu Ram took mercy on plaintiff, who was pressurizing him to withdraw the case. Rest of the contents of the plaint were denied in toto.
Replication was not filed. Ultimately, from the pleadings of the parties, the following issues were initially framed by the trial SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 4 Court:-
1. Whether the defendant illegally and forcibly entered into the garage portion comprising of two rooms, one kitchen and latrine-cum-bath in front of the main gate all situated on the ground floor of Kothi No.864, Sector 12, Panchkula as claimed?
OPP
2. Whether the plaintiff is entitled for recovery of damages/mesne profits at the rate of Rs.5,000/- per month in respect of unauthorized use and occupation of the said portion w.e.f. 20.05.2006 to 30.09.2007 as claimed? OPP
3. If aforementioned issues are proved, whether the plaintiff is entitled for injunction against the defendant as prayed for? OPP
4. Whether the suit of the plaintiff is not maintainable in the present form as alleged? OPD
5. Whether the plaintiff has no locus standi to file the present suit against the defendant as alleged? OPD
6. Whether the suit of the plaintiff is a misuse of the process of the law as alleged? OPD
7. Whether the plaintiff has not approached the Court with clean hands and has suppressed the SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 5 true and material facts as alleged? OPD
8. Whether the plaintiff is not the real owner in possession of the property in question as alleged? OPD
9. Whether the plaintiff has no cause of action to file the present suit as alleged? OPD
10. Relief.
Thereafter, after amendment of suit, vide order dated 27.08.2012, issue No.3 was re-framed as under:-
"3. If aforementioned issues are proved, whether the plaintiff is entitled for recovery of possession against the defendant as prayed for? OPP"
Then again on the application under Order 151 Rule 5 CPC for amendment of issues moved by plaintiff, vide order dated 16.01.2013, issues No.2 and 3 were re-framed as under:-
"2 Whether the plaintiff is entitled to receive damages/mesne profits @ Rs.5,000/- per month in respect of unauthorized use and occupation of the premises in question by the defendant as claimed?
OPP
3. Whether the plaintiff is entitled for recovery of possession against the defendant as prayed for?
OPP"
Both the parties in support of their respective case SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 6 brought on record the relevant documents referred to in the paragraph Nos.7 and 8 of the judgment and decree of the trial Court.
The trial Court on examination of the oral as well as documentary evidence formed an opinion that plaintiff-respondent was real owner of the property. In order to establish that the appellant-defendant had forcibly occupied the portion described above, on the examination of the documents produced by the defendant, trial Court came to the categoric conclusion that appellant-defendant is in possession of a portion described in the plaint without any lawful right.
On the basis of aforementioned evidence, the suit of the plaintiff-respondent was decreed and appellant-defendant was directed to deliver the vacant possession of garage portion comprising of two rooms, one kitchen, and latrine-cum-bath in front of the main gate situated on ground floor of kothi No.864, Sector 12, Panchkula. Since the plaintiff-respondent was not able to substantiate evidence in support of claim qua mesne profits to the tune of ` 5,000/- per month, trial Court determined the mesne profits at the rate of ` 2,000/- per month and further directed that the plaintiff-respondent would be entitled for interest @ 6% per annum till the date of payment of said amount.
Appellant-defendant having not been satisfied with the judgment and decree of the trial Court, filed an appeal before the lower Appellate Court. While affirming finding of the trial Court, SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 7 particularly qua plea of benami and illegal possession, lower Appellate Court dismissed the appeal. For the sake of brevity, the following observation is extracted herein below:-
"17. On the basis of the oral evidence coupled with the documentary evidence on record, it is crystal clear that the respondent- plaintiff Sushil Kumar is the owner of the suit house. Appellant-defendant Krishan Kumar, in his cross-examination also admitted that the occupation certificate was issued by the HUDA department in the name of Sushil Kumar (plaintiff) and volunteered that it was got issued fraudulently, but I am failed to understand if the occupation certificate was got issued by the plaintiff fraudulently as alleged by him then what was the hitch for him to challenge this certificate in favour of the plaintiff. The institution of the case by the father of the parties, as alleged by the defendant in his pleadings and the evidence, does not create any doubt in the title of the plaintiff qua suit house. No evidence has been produced by the defendant to prove that the suit house was purchased by the father in the SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 8 name of the plaintiff out of love and affection.
In case Amar Chand and others versus Lashkar Mal, 1952, PLR 193, it was held that in that in this country, where a purchase is made by a person with his own money, it is assumed to be for his benefit, whether it is made in the name of a child, wife or a stranger. The criterion in the case of benami purchases in India is from what source the money comes with which the purchase is made. As benami purchases in the names of wives are very common in India, slight evidence would be sufficient to show that the purchase was made really for and on behalf of the husband, the wife being merely a benamidar.
Further, in case Hari Krishan Dariya Versus Arjan Singh, 1973 Current Law Journal590, it was held that it is the source of money and not the hand which actually pays it, which has to be seen for holding a particular transaction to be Benami or otherwise. In this case, we cannot take that plaintiff-respondent was Benami Purchaser or that his father was the real purchaser because it is not the case of the appellant-defendant that plaintiff-respondent did not have any source of income. It is admitted case of the defendant-appellant that plaintiff was working in abroad, therefore, he was able to purchase the suit house by incurring his own expenses from his pocket. As such, his plea that the SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 9 suit house was purchased by the father of the parties to the lis in the name of the plaintiff- respondent by incurring the expenses from his pocket is not available to the defendant- appellant.
The most relevant law in this case is the case Mehta Mangal Rai Vs. Karam Chand & Others., 1965 PLR 31, wherein it was held that merely because father has supplied money for the purchase of a house by the son, does not by itself conclusively establish the fact of the son being a benamidar without considering the attending circumstances. In this case, no interference can be raised that the plaintiff-respondent was the real owner. As such, the plea of the plaintiff as Benamidar is not available to the defendant-appellant in view of the given circumstances, as discussed above.
The electricity bills and telephone bills were also issued by the concerned departments in the name of respondent-
plaintiff Sushil Kumar on the address of the suit house. Meaning thereby, the respondent- plaintiff Sushil Kumar never left his native town including the suit house permanently, but he was leaving the house to attend his job in abroad. A man may tell lie but the circumstances do not. Accordingly, all the documentary evidence produced by the respondent-plaintiff speaks the volumes that it is the respondent-plaintiff who is owner of the SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 10 suit house. Appellant-defendant was suggested that he entered in the suit house illegally. DW3 Sushma, who is the real sister of the parties to the lis, showed her ignorance to state that her father Nand Lal during his life time ever wrote a letter to Estate Officer, HUDA that plaintiff Sushil Kumar was not the owner of the suit house and in fact, he (Nand Lal) was the owner. It is open to a witness to admit or deny the allegations but taking shelter behind the words "I do not know"
would indicate that the witness was not prepared to part with the truth. As such, without giving definite answers as to whether her father during his life time ever claimed his ownership in the suit house goes to show that the father of the parties during his life time never raise the fingers on the title of the respondent-plaintiff in the suit house. The evidence of the remaining witnesses on the record examined by the appellant-defendant is of frail nature and they also do not create any doubt in the ownership rights of the respondent-plaintiff qua the suit house. The respondent-plaintiff has proved on basis of the overwhelming evidence that he is owner of the suit house, now the burden has shifted on the appellant-defendant to prove that how he entered in the suit house, but the defendant has totally failed to discharge the onus of this fact. It goes to show that the possession of the appellant-defendant in the suit house is SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 11 nothing but illegal. It is not the pleading of the appellant-defendant that he was allowed by the respondent-plaintiff to stay and to reside in the suit house. As such, the possession of the appellant-defendant in the suit house is nothing but an illegal and unauthorized one. As the appellant-defendant is in illegal and unauthorized possession, therefore, the respondent-plaintiff has right to claim the mesne profits. Since there is specific prayer of mandatory injunction in the pleadings of the plaintiff-respondent, hence, the trial court rightly directed the defendant-appellant to hand over the suit house to the plaintiff- respondent. No evidence has been produced by the appellant-defendant that the mesne profits provided by the learned lower court are exorbitant or on higher side."
Learned counsel appearing on behalf of the appellant- defendant assiduously argued that findings of the Courts below suffer from perversity much less illegality. In support of such argument, he brought attention of this Court to the following substantial questions of law raised in the grounds of appeal:-
a) Whether the learned Courts below have ignored the documents Ex.P5 and P6?
b) Whether the learned Courts below have misread the evidence of DW2 and DW3?
c) Whether the respondent has failed to prove the source of funds of purchasing the property in SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 12 dispute?
d) Whether the property in dispute was owned by the father of the parties i.e. Sh. Nand Lal Mehta?
e) Whether the judgment and decree of the Courts below are sustainable in view of facts and circumstances mentioned above?
f) Whether the judgments and decrees of the learned Courts below are non Speaking?
g) Whether the judgments and decrees of the Courts below are perverse and liable to be reversed?
In support of the aforementioned questions of law, Mr. Namit Gautam, Advocate appearing on behalf of the appellant submitted that the Courts below have ignored the documents Ex.P5 and Ex.P6 in essence that the property was purchased by Nand Lal Mehta and not by the plaintiff-respondent. He further submitted that the plaintiff-respondent did not get the conveyance deed executed in the year 1986 when the property was purchased and the same was executed in the year 2006 after 20 years. In order to convince this Court that Nand Lal Mehta, is the owner of the property not Sushil Kumar, he drew my attention to the copy of suit for injunction, which has been annexed at Annexure A-2.
I have heard learned counsel for the appellant and do not agree with the aforementioned arguments raised in support of the present regular second appeal.
SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 13
The plea of the benami transaction after repealing of the Act in the year 1988 is available only on a limited point in Section 4 of the Benami Transactions (Prohibition) Act, 1988, which is extracted herein below:-
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 benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
2. No defence based on any right in respect of any property held benami, whether 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 is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
b) where the person in whose name the SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 14 property is held is a 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.
From the perusal of the aforementioned, it is evident that only in a few circumstances, the plea of benami can be raised. In order to establish the plea of benami, the person who asserts plea is to prove by direct, cogent and positive evidence, source of money in purchasing the property and the person in whose name the property was purchased was actually a name lender. In the instant case, both the Courts below have arrived at the conclusion that plaintiff- respondent out of his own sources paid a total consideration of ` 68,000/- to the HUDA. A sum of ` 60,000/- vide bank draft No.22820/1997/86 and paid ` 8,000/- in cash.
On the contrary, the appellant-defendant failed to prove the source, in order to establish the plea of benami.
Both the Courts below on the basis of the electricity bills etc., which came from the possession of the defendant-appellant, which actually were in the name of the plaintiff-respondent have concurrently held that defendant-appellant was found in illegal possession of the property, ibid, in dispute In view of the aforementioned finding, no substantial question of law, for determination of this Court, sought to be raised in SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.4362 of 2014 (O&M) 15 the present appeal arises and accordingly, the appeal is dismissed.
No other argument has been raised in support of the submission.
There shall be no order as to costs.
(AMIT RAWAL) JUDGE November 25, 2014 savita SAVITA DEVI KADIAN 2014.12.05 09:28 I attest to the accuracy and authenticity of this document High Court Chandigarh