Chanan Kaur & Ors vs Ajit Singh (Deceased) Through ...
2013 Latest Caselaw 4239 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 18th September, 2013

+                              RFA 329/1997

       CHANAN KAUR & ORS                                   ..... Appellants
                   Through:           Mr. Sanjeev Sindhwani, Sr. Adv.
                                      with Mr. Sanjay Dua, Advocate.

                               Versus

    AJIT SINGH (DECEASED) THROUGH LR'S ..... Respondent
                  Through: Mr. S.K. Kalia and Mr. K.K. Bhalla,
                           Advocates.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 30 th September,

1997 [of the Court of Additional District Judge (ADJ), Delhi in RCS

No.63/1992 (Old No.69/1984)] in favour of respondent/plaintiff and against

the appellants/defendants for recovery of possession of a portion of the

ground floor of house No.L-59, Kalkaji, New Delhi.

2. The appeal was admitted for hearing and the counsel for the

respondent/plaintiff made a statement that the respondent/plaintiff will not

execute the decree. Vide further interim order dated 13th July, 2006, the

appellants/defendants were restrained from carrying out any construction or

repair work in the property without the leave of the Court. Vide subsequent

order dated 26th April, 2007, the appellant was directed to maintain status

quo in regard to construction. Attempts for settlement were made but

remained unsuccessful. The respondent/plaintiff died during the pendency

of the appeal and his legal heirs were substituted. The appellants/defendants

filed applications under Order 41 Rule 27 of the Civil Procedure Code

(CPC), 1908 but which were dismissed vide order dated 18 th August, 2011.

The counsels have been heard on 12 th August, 2013, 21st August, 2013, 2nd

September, 2013 and 3rd September, 2013.

3. The deceased respondent/plaintiff filed the suit from which this

appeal arises, for recovery of possession of part of the ground floor of

property No.L-59, Kalkaji, New Delhi, pleading:

(i) that he was the absolute owner of the entire property bearing

No.L-59, Kalkaji, New Delhi;

(ii) that the appellant/defendant No.1 Smt. Chanan Kaur was the

wife of the brother of the father of the respondent/plaintiff and also

the sister of the mother of the respondent/plaintiff and was residing in

the said portion of the property along with her

sons/appellants/defendants No.2 to 6 and the wife and the children

namely appellants/defendants No.7 to 9 of the appellant/defendant

No.2;

(iii) that the respondent/plaintiff purchased the plot admeasuring

300 sq. yds. underneath the property with his own funds in the year

1965 vide registered Sale Deed dated 29th December, 1965;

(iv) that the respondent/plaintiff on 5th June, 1970 got the plans for

construction of the property sanctioned from the Municipal

Corporation of Delhi (MCD) for construction of a building

comprising of ground, first and barsati floors on the said plot of land

and commenced construction in or around February, 1971;

(v) that the respondent/plaintiff was then residing at L-49, Lajpat

Nagar-II, New Delhi;

(vi) that the appellants/defendants were then residing at L-110,

Lajpat Nagar-II, New Delhi;

(vii) that relations between the parties were cordial;

(viii) that the respondent/plaintiff along with his parents, brothers

and other members shifted to the suit property in or around

November, 1971, while the construction thereof was still in progress;

(ix) that the respondent/plaintiff was carrying on business as a

building contractor; the financial means of the appellants/defendants

were very limited and the respondent/plaintiff was helping the

appellant/defendant No.2 from the year 1970 onwards by getting him

contract jobs; at that time, the appellant/defendant No.2 was the only

grown up member of the family of the appellant/defendant No.1; the

husband of the appellant/defendant No.1 was then practically not

doing much work;

(x) that the husband of the appellant/defendant No.1 expired on 5 th

May, 1972;

(xi) that out of near relationship and brotherhood, the

respondent/plaintiff sometime in the first week of June, 1972 brought

the appellants/defendants from L-110, Lajpat Nagar-II, New Delhi

where they were then residing in a rented house to the suit property

and housed them in a portion of the ground floor;

(xii) that the respondent/plaintiff had brought the

appellants/defendants to his house just to help them in their difficult

times with the understanding that as soon as the appellants/defendants

came out of their economic strain and were in a position to have their

own house somewhere else, the appellants/defendants will shift from

the house of the respondent/plaintiff;

(xiii) that the respondent/plaintiff completed the construction of the

upper floors of the suit property and obtained Completion Certificate

on 16th August, 1976;

(xiv) that the respondent/plaintiff has been paying the charges of all

the eight electricity and power meters and two water meters in the

property as well as the property tax of the suit property;

(xv) that the appellants/defendants have never paid any

consideration whatsoever for residing in the property of the

respondent/plaintiff;

(xvi) that since the appellants/defendants No.2 to 6 had grown up

and became economically well settled, the respondent/plaintiff

requested them to shift out but the appellants/defendants avoided

doing so and which led to bickerings between the parties;

(xvii) that the respondent/plaintiff had been letting out the two

portions of the first floor of the property to different tenants from time

to time;

(xviii) that the barsati floor of the property has always been kept by

the respondent/plaintiff for his own use;

(xix) that there are two sets of staircases leading to the two portions

of the first floor and which were used by the tenants in the respective

portions of the first floor;

(xx) that at the time of institution of the suit, even the entire first

floor was being used by the respondent/plaintiff and the

appellants/defendants had no access thereto.

4. The appellants/defendants contested the suit by filing written

statement, on the grounds:

(a) that the suit was not property valued for the purposes of court

fees and jurisdiction;

(b) that the respondent/plaintiff was not the owner of the property;

(c) that the plot of land underneath the property was purchased by

Sh. Bachhan Singh being the father of the respondent/plaintiff and Sh.

Arjan Singh being the predecessor of the appellants/defendants (and

both of whom were brothers) in equal share in the year 1965;

(d) that the said Sh. Bachhan Singh and Sh. Arjan Singh were

married to two sisters;

(e) that for sometime Sh. Bachhan Singh and Sh. Arjan Singh were

working together and being brothers married two sisters and had very

good relations;

(f) that the respondent/plaintiff was the eldest son of Sh. Bachhan

Singh;

(g) that Sh. Bachhan Singh and Sh. Arjan Singh being old, deputed

the respondent/plaintiff to purchase the plot on their behalf and paid

equally to respondent/plaintiff for the plot;

(h) that the respondent/plaintiff got the Sale Deed of the plot

executed in his favour, though Sh. Bachhan Singh and Sh. Arjan

Singh were real owners and had equal share;

(i) that the plan for construction of two houses was got sanctioned

from the MCD and two identical houses were built on the land

purchased;

       (j)    that at the time of commencement of construction in February,

       1971, a joint account was opened in the               name of the

respondent/plaintiff and appellant/defendant No.1 in the State Bank of

India, Central Market, Lajpat Nagar, New Delhi and the money

deposited in the said account was spent on construction and further

amounts were paid by Sh. Arjan Singh and appellant/defendant No.1

to Sh. Bachhan Singh and respondent/plaintiff for construction of the

house;

(k) that equal amounts were spent by Sh. Arjan Singh and the

appellant/defendant No.1 on the one hand and family of Sh. Bachhan

Singh on the other hand;

(l) that Sh. Arjan Singh and the appellant/defendant No.1 became

the owners of the portion (in dispute) and the other portion came

under the ownership of Sh. Bachhan Singh and family;

(m) that both the houses were more or less completed in November,

1971 when both families shifted to their respective portions; however

some of the members of the family of the appellants/defendants

remained in house No.L-110, Lajpat Nagar-II, New Delhi, as work of

construction on the suit property was still in progress;

(n) that after the construction of the ground floor, the work of

construction on the first floor was started; however Sh. Arjan Singh

died on 5th May, 1972; consequently, the progress of construction on

first floor in his portion was stopped but Sh. Bachhan Singh and

respondent/plaintiff carried out construction on the first floor of their

portion;

(o) that sometime later Sh. Bachhan Singh offered to the

appellants/defendants financial aid in building on the first floor and it

was agreed that Sh. Bachhan Singh and the respondent/plaintiff shall

spend the amount on construction of the first floor of the

appellants/defendants share and shall recover the same by letting out

the said portion till such time they recovered the entire amount

invested by them in construction;

(p) that the construction of the first floor and the barsati floor of

the appellants/defendants portion was completed in or about 1976-

1977 and was let out and remained with the tenants till December,

1981 and till then the respondent/plaintiff and his father Sh. Bachhan

Singh "must have recovered more than Rs.50,000/- as rent from the

tenants, though had only incurred expenditure of about Rs.25,000/- to

Rs.30,000/- in completing the construction of first and barsati floors

of the property of the appellants/defendants portion;

(q) that after vacation by the tenant in December, 1981, the first

floor of the portion of the appellants/defendants remained vacant

under the lock and key of the appellants/defendants;

(r) that in or about August, 1983, the respondent/plaintiff and his

father Sh. Bachhan Singh occupied the first floor and the second floor

of the appellants/defendants portion also and refused to vacate the

same;

(s) that the appellants/defendants reserved their right to file a suit

for recovery of possession of the first floor and barsati floor of their

portion;

(t) that the appellants/defendants were thus in occupation of the

ground floor, for recovery of possession whereof the suit was filed, as

owners and had been paying the electricity and water charges of their

portion as per meter reading;

(u) that in any case the appellants/defendants were in possession of

the said portion of the ground floor since November, 1971 in their

own rights claiming themselves to be the owners and had become

owners by adverse possession.

5. The respondent/plaintiff filed a replication in which with respect to

the joint account, it was inter alia stated that Sh. Arjan Singh did not want

the appellant/defendant No.2 with whom the respondent/plaintiff had taken

up some construction/building work in joint venture to handle the finances

and the said account was opened to enable the appellant/defendant No.1 to

withdraw monies therefrom; however upon objection by the

appellant/defendant No.2, the said idea was dropped.

6. On the pleadings of the parties, the following issues were framed on

8th August, 1985:

"1. Whether the plaintiff is the owner of the property in dispute? OPP

2. Whether the suit is not valued properly for the purposes of Court fee and jurisdiction? OPD

3. Whether the property is dispute was purchased by Bachan Singh and Arjan Singh as alleged in para 1 of the written statement? If so, its effect? OPD

4. Whether the defendants are illegal occupants of the suit property? OPP

5. Whether the suit is bad for non joinder of parties? OPD

6. Whether the defendants have become the owner of the suit property by way of adverse possession? OPD

7. Relief."

7. The respondent/plaintiff examined as many as 24 witnesses. The

appellants/defendants examined 6 witnesses. The respondent/plaintiff

examined himself in rebuttal.

8. The learned ADJ in the impugned judgment has found/observed/held:

(i) that not only was the Sale Deed of the land underneath the

property in the name of the respondent/plaintiff but the property was

also recorded with the Municipal Authorities in the name of the

respondent/plaintiff only and the electricity and water meters in the

property were also in the name of the respondent/plaintiff and all

other documents with respect to the property viz. Sanction for

construction, completion certificate etc. were also in the name of the

respondent/plaintiff;

(ii) that all the bills of purchase of materials for construction of the

property were in the name of the respondent/plaintiff only and the

contractors/workers who had constructed and completed the property

were also engaged by the respondent/plaintiff only;

(iii) that it is the respondent/plaintiff only who had declared himself

as the absolute owner of the property before the Income Tax

Authorities;

(iv) that Sh. Arjan Singh being the predecessor of the

appellants/defendants, at the time of his death on 5th May, 1972 was

resident of L-110, Lajpat Nagar-II, New Delhi only and all the

ceremonies in connection with his death had also taken place there

only and which showed that the appellants/defendants had not shifted

to the suit property in November, 1971 or till then as was claimed by

them in the written statement;

(v) that the testimonies of the witnesses examined by the

appellants/defendants to show that they were also involved in the

construction of the suit property or were in occupation thereof as

owners, did not inspire confidence;

(vi) that the total cost of construction was about Rs.1,25,000/-;

(viii) that the appellants/defendants had failed to prove joint

ownership of the property or any understanding or settlement that the

suit property was benami in the name of the respondent/plaintiff;

(ix) that the respondent/plaintiff was thus held to be the sole owner

of the suit property;

(x) that Sections 91 & 92 of the Indian Evidence Act, 1872, bar

evidence of any oral agreement or settlement; in view of the

registered Sale Deed of the property in favour of the

respondent/plaintiff, no other evidence of ownership of the

appellants/defendants or their predecessor could be considered;

(xi) that the appellants/defendants had also not become owners of

the said portion of the ground floor of the property by adverse

possession as the suit was instituted within 12 years of the

appellants/defendants coming into possession of the property;

(xii) that the appellants/defendants were thus in illegal possession of

the property;

(xiii) that the suit was correctly valued for the purposes of court fees

and jurisdiction;

(xiv) that the suit was not bad for non-joinder of parties.

Axiomatically, the suit was decreed and a decree for recovery

of possession was passed in favour of the respondent/plaintiff and

against the appellants/defendants.

9. The senior counsel for the appellants/defendants has argued:

(A) that the prohibition as contained in the Benami Transactions

(Prohibition) Act, 1988 from taking a defence, of the

appellants/defendants being the actual/real owner of the property for

recovery of possession of which the suit was filed and the

respondent/plaintiff being benami owner thereof, would not apply as

the appellants/defendants had filed the written statement (in the suit

from which this appeal arises) taking the said defence on or about 12th

November, 1984 i.e. prior to the coming into force of the Benami Act

and which as per the G. Mahalingappa Vs. G.M. Savitha (2005) 6

SCC 441 is not retrospective;

(B) that the only reason given in the impugned judgment for

negating the plea of the appellants/defendants of being the actual/real

owner, is Sections 91 & 92 of the Evidence Act but which have no

application to a plea of benami; reliance is placed on Bai Hira Devi

Vs. Official Assignee of Bombay AIR 1958 SC 448 laying down that

the application of the rule contained in Sections 91 & 92 is limited to

cases as between the parties to the instrument or their representatives

in interest and it is contended that the appellants/defendants being not

parties to the Sale Deed of the land underneath the property in favour

of the respondent/plaintiff are not prohibited from setting up title in

their own favour. Reliance in this regard is also placed on Jai Narain

Parasrampuria Vs. Pushpa Devi Saraf (2006) 7 SCC 756 laying

down that Section 54 of the Transfer of Property Act, 1882 does not

lay down a law as to whether in all situations an apparent state of

affairs as contained in a Deed of Sale would be treated to be the real

state of affairs and does not bar benami transactions and there is no

embargo in getting a property registered in the name of one person

although the real beneficiary thereof would be another;

       (C)    that   the   plea   in    the   written    statement     of     the

       appellants/defendants is of benami only;

       (D)    that the said plea of benami is proved from construction of two

separate identical units in the property; had the two brothers namely

Sh. Bachhan Singh (being the father of the respondent/plaintiff) and

Sh. Arjan Singh (being the predecessor of the appellants/defendants)

been not the owners in equal share of the property, the occasion for

constructing two separate units would not have arisen and the

respondent/plaintiff if had allowed the appellants/defendants to reside

in his house out of love and affection, would have constructed the

house as one only;

(E) that there could have been no closer relationship amongst the

two families with the brothers Sh. Bachhan Singh and Sh. Arjan

Singh being married to two sisters;

(F) that it was owing to such close relationship that trust was

reposed in the respondent/plaintiff who was not only the eldest and

the only major child of the two families but was also the most

educated one with the others being uneducated;

(G) that the respondent/plaintiff having admitted the joint bank

account with the appellant/defendant No.1, the onus to prove that the

same was not to meet the construction expenses of the house, was on

the respondent/plaintiff and which he has failed to discharge;

(H) that there would have been no occasion for the

appellants/defendants to shift from their tenanted accommodation at

Lajpat Nagar-II but for being the owners in equal share of the suit

property;

(I) reliance is placed on Madan Lal Vs. Ram Prasad AIR 2002

Rajasthan 99 holding that when it is found that the property was

purchased from the income of the joint family business, then the title

of the property cannot vest in the plaintiff merely because the plaintiff

had shown himself as proprietor of the firm before the Income Tax

Authorities and it is contended that since the Sale Deed of the land

underneath the property was in the name of the respondent/plaintiff

though benami, all other documents viz. sanction plan for

construction, completion certificate, electricity, water meters, house

tax, but naturally would be in the name of the respondent/plaintiff and

would have no relevance to determine the aspect of benami;

(J) that though at the time of institution of the suit from which this

appeal arises, the respondent/plaintiff was in possession of the first

floor of the property but subsequently under pressure of the

society/family delivered possession thereof to the

appellants/defendants and has subsequently filed a suit for recovery of

possession of the first and the second floors also and which is pending

adjudication;

(K) that though the applications filed by the appellants/defendants

in this appeal under Order 41 Rule 27 of CPC have been dismissed

but the appellants/defendants in the suit with respect to the first and

second floors would be leading evidence which this Court has refused

to take;

(L) that the findings to be returned in the judgment in this appeal

should thus be confined with respect to the ground floor only and

should not prejudice the defence of the appellants/defendants in the

suit for possession of the first and second floors;

(M) that the respondent/plaintiff has not proved the source of

consideration of Rs.9,000/- paid for purchase of the land underneath

the property;

(N) that though the respondent/plaintiff in his deposition claimed to

have paid advance of Rs.1100/- for purchase of the land underneath

the property but the Sale Deed records the entire sale consideration of

Rs.9,000/- to have been paid at the time of execution thereof only and

does not mention of any advance of Rs.1100/- having been paid;

(O) that the appellants/defendants have proved as Ex.PW-24/D-1

accounts of expenses incurred in construction; there would have been

no occasion for the said accounts to be in custody of the

appellants/defendants; had the appellants/defendants not been the

equal owners of the property;

(P) that between the year 1965 when the land was acquired and the

year 1976 when construction thereon was completed, the land cost at

Rs.9,000/- was inconsequential viz-a-viz. the construction cost of

Rs.1,25,000/-; it is for this reason only that though no details/accounts

of the land cost were maintained but accounts of the expenses

incurred in construction were scrupulously maintained;

(Q) that had the construction cost been not shared, there would

have been no need to maintain pennywise accounts as is found from

the document Ex.PW24/D-1 to have been done;

(R) that the said accounts and of which there is no explanation by

the respondent/plaintiff, coupled with construction of two separate

units which is out of the ordinary, clearly establishes joint ownership

and/or the appellants/defendants being actual/real owners of half of

the property including the portion in their possession;

(S) reference is made to Madan Lal Kapur Vs. Subhash Lal

Kapur 2003 VIII AD (Delhi) 108 and to Marcel Martins Vs. M.

Printer AIR 2012 SC 1987 to contend that there can be benami co-

ownership and that contribution to the purchase consideration of the

property leads to the inference of benami;

(T) that in 1965-1976 tenants were protected from eviction and

rents were low and the appellants/defendants would not have left the

premises at Lajpat Nagar in their tenancy to reside as licensees in the

house of the respondent/plaintiff;

(U) that the entries in the account of construction Ex.PW-24/D-1

tally with the entries in the passbook of the joint account aforesaid of

the respondent/plaintiff and the appellant/defendant No.1;

(V) that the appellants/defendants have filed a large number of

other documents on Trial Court record showing incurring of

expenditure by them in construction of the property and in their own

name and maintenance of account of expenses on construction of the

property and though they were proved in accordance with law but the

exhibit marks were not put thereon and the same ought to be read in

evidence;

(W) In response to query, as to what test is to be applied to

determine whether the transaction is a benami one, reliance is placed

on Binapani Paul Vs. Pratima Ghosh AIR 2008 SC 543;

(X) reference is made to Jai Pal Shishodia Vs. Poonam Rathore

191 (2012) DLT 487 (DB) to contend that in disputes amongst family

relations, by the very nature of relationship, it is to be expected that

people would be un-officious in conducting the affairs within the

family and would feel comforted that their trust and confidence would

not be belied for the party that they are dealing with is their own kith

and kin and further that the truth is known to all the relations.

10. Per contra, the counsel for the respondent/plaintiff has contended:

(I) that inference of benami cannot be drawn on surmises and

conjunctures; he also places reliance on Binapani Paul (supra);

(II) that the appellants/defendants do not say who paid the monies

to whom and make vague averments;

(III) that the appellants/defendants do not claim to have participated

in the purchase of land as would have been the case, had they been

the joint owners;

(IV) that the appellants/defendants nowhere claimed themselves to

be the owners of the property;

(V) that no motive for indulging in benami transaction is disclosed;

(VI) that according to the appellants/defendants their predecessor

Sh. Arjan Singh was having a flourishing construction business and

there is no explanation as to why he could not purchase the property

in his own name;

(VII) that the appellants/defendants never claimed partition or

mutation in their own names and have taken the plea of benami only

when sued for possession;

(VIII) that from the factum of the respondent/plaintiff admittedly

inducting tenants and realising rent of the portion of the first floor of

which also the appellants/defendants claim to be owners, the plea of

benami is belied;

(IX) that if there had been any merit in the plea of the

appellants/defendants of having allowed the respondent/plaintiff to

induct tenants to compensate the respondent/plaintiff for the cost of

construction of the first and second floors incurred by him on the

appellants/defendants behalf, account of such costs and of the rent

realised would have been kept; on the contrary, the

appellants/defendants in their pleadings and testimonies have vaguely

stated that about Rs.25,000/- to Rs.30,000/- would have been incurred

by the respondent/plaintiff in construction and he must have realised

Rs.50,000/- as rent; the appellants/defendants could not even give

particulars of the tenants and which shows that they were then not

concerned at all with the said letting of the property;

(X) that no evidence whatsoever of benami has been led;

(XI) that the burden of proof in this regard was on the

respondent/plaintiff;

(XII) that though the possibility of benami between the two brothers

i.e. Sh. Bachhan Singh and Sh. Arjan Singh may have existed but the

question of the respondent/plaintiff being benami for his father and

his father‟s brother did not arise;

(XIII) that there are no separate units of construction in the property

as has been incorrectly argued; the plan for construction of the

property was sanctioned as one only and not as two units, with only

one kitchen on the ground floor and the sanction plan has been proved

as Ex.PW-6/1;

(XIV) that the appellant/defendant No.1 who has died during the

pendency of this appeal was not examined as a witness; the joint

account was in her name and she was the best witness;

(XV) that adverse inference has to be drawn against the

appellants/defendants for suppression of best evidence; reliance in

this regard is placed on Vidhyadhar Vs. Manikrao (1999) 3 SCC 573

(para 17);

(XVI) that though the appellants/defendants claimed that they were in

possession of the first floor from December, 1981 till they were

dispossessed therefrom in 1982-1983 but did not make any police

complaint of such dispossession; on the contrary, when the

appellants/defendants during the pendency of the suit from which this

appeal arises, forcibly took possession of the first floor in or about the

year 1993, a police complaint thereof was made by the

respondent/plaintiff;

(XVII) that there is not a whisper of benami in the entire written

statement;

(XVIII) that the joint bank account on which so much emphasis has

been laid by the senior counsel for the appellants/defendants shows

total transactions of Rs.15,975.81p only and which is meaningless in

the face of the admitted construction cost of Rs.1,25,000/-;

(XIX) that the reason given for benami transaction is false as the

respondent/plaintiff was only 8th Class pass, while the

appellant/defendant No.2 is admittedly a matriculate;

(XX) that the appellants/defendants in their written statement have

admitted the respondent/plaintiff to be better financially and the

appellants/defendants at the relevant time going through a financial

crunch and which establishes that the reason for the respondent /

plaintiff allowing appellants / defendants to reside in his house was

compassion;

(XXI) that no witness has been called by the appellants/defendants to

prove any purchase of building material for construction purpose by

the appellants/defendants as has been done by the

respondent/plaintiff;

(XXII) that the appellants/defendants in the written statement have

interchangeably referred to the respondent/plaintiff and Sh. Bachhan

Singh being the owner of the other half of the property and which

itself belies the plea set up of the respondent/plaintiff being benami

owner and Sh. Bachan Singh and Sh. Arjan Singh being the real

owners of the property;

(XXIII) that according to the testimony of appellant/defendant No.2,

appellants/defendants were maintaining regular accounts of business

and employing Munshis but no accounts of the suit property have

been pleaded or proved to have been maintained in their books and

the only reason can be that they were not the owners.

11. The senior counsel for the appellants/defendants in rejoinder has

argued:

(a) that the appellant/defendant No.2 became matriculate after

1965, when he was a minor;

(b) that the pleas in the written statement of having equally shared

the cost of the property are indeed pleas of benami;

(c) that the existence of two gates, two rear doors, two kitchens

with no inter se access and two staircases in the property is admitted

and thus there was no need for the appellants/defendants to file any

plan and the sanction plan does not represent the construction existing

at the site;

(d) that the appellant/defendant No.1 Smt. Chanan Kaur was/is but

one of the defendants and there was nothing which was in her

exclusive knowledge and thus the rule of adverse inference from non-

production of best evidence does not apply.

12. The appellants/defendants having also taken the plea of ownership by

adverse possession in alternative to the plea of being the real co-owner of

the property and having also claimed an issue on the said plea and which

has also been decided against the appellants/defendants, attention of the

senior counsel for the appellants/defendants was invited to the judgments of

the Supreme Court in Mohan Lal Vs. Mirza Abdul Gaffar (1996) 1 SCC

639, Karnataka Board of Wakf Vs. Govt. of India (2004) 10 SCC 779,

Annasaheb Babusaheb Patil Vs. Balwant @ Balasaheb Babusahed Patil

(1995) 2 SCC 543 and L.N. Aswathama Vs. P. Prakash (2009) 13 SCC 229

laying down that a person claiming lawful title to the property cannot

simultaneously take the plea of adverse possession and it was enquired

whether the appellants/defendants want to press the claim for adverse

possession or as real owners.

13. The senior counsel for the appellants/defendants replied that though

he has no instructions to give up the plea of adverse possession but his

argument is on the basis of the appellants/defendants being real owners of

the property. No arguments on the aspect of adverse possession have been

addressed.

14. The learned ADJ has disbelieved the version of the

appellants/defendants of having come into possession of the property in

November, 1971 and has held that the appellants/defendants were residing

at Lajpat Nagar till the demise of their predecessor Sh. Arjan Singh on 5 th

May, 1972 as all ceremonies of death were held from Lajpat Nagar

residence only and the suit for recovery of possession (from which this

appeal arises) was filed within twelve years thereafter and the plea of

adverse possession was thus not available to the appellants/defendants.

There is, as aforesaid, no challenge to the said finding. I, even otherwise,

concur with the same. Had the appellants/defendants shifted to the suit

property in November, 1971 with only some family members continuing in

Lajpat Nagar House, in the normal course of human behaviour the

ceremonies pursuant to death on 5th May, 1972 of Sh. Arjan Singh would

have been held near about the suit property only, specially considering the

closeness of relationship emphasised by the senior counsel for the

appellants/defendants. Not only so, no averment of adversity has been

pleaded or proved. Mere long possession does not create any rights in

immovable property, as held in Roop Singh Vs. Ram Singh (2000) 3 SCC

708. The claim of the appellants/defendants of having becoming owners by

adverse possession is thus rejected and the impugned judgment affirmed to

the said extent.

15. I will now take up the claim of the appellants / defendants of the

purchase of the property in the name of the respondent / plaintiff being

benami and Sh. Bachhan Singh, father of the respondent / plaintiff and Sh.

Arjan Singh predecessor of the appellants / defendants being the actual / real

owners of the property.

16. Though the senior counsel for the appellants / defendants had faintly

suggested that since the reliance placed by the learned Additional District

Judge on Sections 91 and 92 of the Evidence Act to negate the said claim of

the appellants / plaintiffs is contrary to the dicta of the Supreme Court in

Bai Hira Devi & in Jai Narain Parasrampuria supra, the judgment is in

any case liable to be set aside but the same is not the correct position in law.

Not only do I find the learned Additional District Judge to, besides relying

on Sections 91 and 92 of the Evidence Act for negating the claim of the

appellants / defendants of ownership, have also held that the appellants /

defendants had failed to prove joint ownership of the property or any

understanding or settlement that the property was benami in the name of the

respondent / plaintiff but even otherwise the hierarchy of the Courts cannot

play ping pong in the manner suggested. Merely because the appellate

Court disagrees with the reasoning given in the impugned judgment is no

reason to set aside the impugned judgment if the appellate Court on the

basis of the material otherwise on record finds the relief ultimately granted

in the judgment to be in order. It has not been argued by the senior counsel

for the appellants / defendants that the appellants / defendants had invited

the attention of the learned Additional District Judge to Bai Hira Devi

supra. The appellants / defendants are thus equally to blame for having not

argued the said aspect in correct perspective before the learned Additional

District Judge. A lis would never be decided if the matters are permitted to

so shuttle between the Courts.

17. Though both counsels on being asked to show the test to be applied

for determining whether the transaction is a benami one, relied on Binapani

Paul supra and which while dealing with the contention „that a transaction

in benami may be entered into for no apparent reason‟, holds that „a person

may for various reasons intend to purchase a property in the name of his

wife, it may be for one reason or the other, there may or may not be a

practice in respect thereto‟ but I am unable to decipher from the said

judgment, as was suggested by the senior counsel for the appellants /

defendants that a benami transaction may be entered into for no apparent

reason. The Supreme Court earlier in Valliammal Vs. Subramaniam

(2004) 7 SCC 233 and which was cited with approval in Binapani Paul

held that 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; that the essence of a benami

transaction is the intention of the party or parties concerned and though such

intention may be shrouded in a thick veil which cannot be easily pierced

through but such difficulties neither relieve the person nor justify the

acceptance of mere conjectures or surmises as a substitute for proof. Though

the Supreme Court laid down the following six circumstances i.e.:

      "(i)     The source of the purchase money.

      (ii)     The nature and possession of the property after the

               purchase.

      (iii)    Motive if any for giving the transaction a benami colour.

      (iv)     The position of the parties and the relationship.




       (v)    The custody of the title deeds after the sale and

(vi) The conduct of the parties in dealing with the property

after the sale".

as a guide to determine the nature of the transaction but further

proceeded to hold that the source from where the purchase money came and

the motive why the property was purchased benami are by far the most

important tests for determining whether the sale standing in the name of one

person, is in reality for the benefit of the other. It was further held that a

plaintiff, in order to prove that he was the real owner of the property is

required to show that there were valid reasons for purchase of the property

in the name of his wife; finding the reason given in that case to be not

plausible, the claim for benami was rejected. It was held to be well settled

that intention of parties is the essence of benami transaction and finding the

plaintiff in that case to not have any justification for purchasing the property

in the name of his wife, the claim for benami was rejected.

18. I am therefore of the opinion that when the Supreme Court in

Binapani Paul observed that „a person may for various reasons intend to

purchase the property in the name of his wife and that it may be for one

reason or the other and that there may or may not be a practice‟, the same

cannot be held to be laying down that without proving a motive or reason

for entering into the benami transaction such a claim can be sustained.

19. The reason given in the written statement of the appellants /

defendants for the purchase of the plot of land underneath the property

benami in the name of the respondent / plaintiff is that Sh. Bachhan Singh

and Sh. Arjan Singh were old and had deputed the respondent / plaintiff

who was the eldest son of Sh. Bachhan Singh to purchase the plot on their

behalf. Though the senior counsel for the appellants / defendants had in his

arguments also vehemently contended that Sh. Bachhan Singh and Sh.

Arjan Singh were illiterate, respondent / plaintiff was the most educated and

that the other children of Sh. Bachhan Singh and Sh. Arjan Singh were then

minors but the said argument is not shown to have any foundation in

pleadings or in evidence. Such arguments, factual in nature, but without any

foundation cannot win suits and appeals arising therefrom.

20. There is, in my view, really no justification in the written statement of

the appellants / defendants for purchase of plot of land by Sh. Bachhan

Singh and Sh. Arjan Singh benami in the name of the respondent / plaintiff.

Sh. Bachhan Singh is stated to have been alive during the pendency of the

suit. He thus in 1965 could not have been so old so as to be not able to get

the Sale Deed executed in his favour. No particulars of age neither of Sh.

Bachhan Singh nor of Sh. Arjan Singh in the year 1965 are pleaded. Sh.

Arjan Singh also is stated to have died only on 05.05.1972 i.e. seven years

after the purchase of the plot of land. Thus he also could not in 1965 have

been so old so as to be unable to have the Sale Deed executed in his favour.

21. Moreover, the reason given of old age of Sh. Bachhan Singh and Sh.

Arjan Singh is belied from the admitted opening of the joint bank account in

the name of respondent / plaintiff and the deceased appellant / defendant

No.1 Smt. Chanan Kaur wife of Sh. Arjan Singh. It is unbelievable that Sh.

Arjan Singh or his wife Smt. Chanan Kaur would trust the property to be

benami in the name of the respondent / plaintiff but for the purpose of

incurring the costs of construction, not trust the respondent / plaintiff but

join the name of Smt. Chanan Kaur in the account. Just like Smt. Chanan

Kaur was made the joint holder of the said bank account, even if Sh. Arjan

Singh was too old to have the Sale Deed executed in his favour, the Sale

Deed also could have been in favour of respondent / plaintiff jointly with

Smt. Chanan Kaur.

22. The joint bank account is stated to have been opened in February,

1971. Both Sh. Bachhan Singh and Sh. Arjan Singh were then alive.

Though Sh. Arjan Singh died a little more than one year thereafter on

05.05.1972 but Sh. Bachhan Singh is stated to have been alive till the

evidence is led in the suit i.e. till 1990s. Had Sh. Bachhan Singh and Sh.

Arjan Singh been the real / actual owners of the property and spending

monies on construction thereof, it is inexplicable why the account was in the

name of the respondent / plaintiff and not in the name of Sh. Bachhan

Singh. Reliance in this regard may also be placed on V. Shankaranarayana

Rao Vs. Leelavathy (2007) 10 SCC 732 (of which also the same Hon‟ble

Judge of the Supreme court who has authored Binapani Paul supra was the

author) laying down that the role and / or the motive on the part of the

person who had advanced the amount of construction played an important

role in the determination of the nature of the transaction and further holding

the High Court to have committed a manifest error in holding that the source

of purchase money was conclusive to hold the transaction to be benami.

23. The factum of the respondent / plaintiff being the eldest of the

children of the two brothers Sh. Bachhan Singh and Sh. Arjan Singh, in the

other circumstances of this case in my opinion is not a plausible justification

for purchase of the property by Sh. Bachhan Singh and Sh. Arjan Singh

benami in the name of the respondent / plaintiff. Though Sh. Bachhan

Singh and Sh. Arjan Singh besides being related by blood were also related

through their wives but were admittedly at the time of purchase of the plot

of land in the year 1965 neither joint in residence nor in business. It was not

as if the respondent / plaintiff as the eldest and the only child of age of a

joint household of two brothers was representing in joint affairs of the said

brothers. There is no plea to the said effect. If that was so, then the said

reason for the transaction / benami in the name of the respondent / plaintiff

cannot be accepted. Significantly, the plea in the written statement also is of

the respondent / plaintiff only having purchased the land with no

participation from any other and only the purchase consideration having

been paid to him equally by Sh. Bachhan Singh and Sh. Arjan Singh and not

of the respondent / plaintiff contrary to the instructions of Sh. Bachhan

Singh & Sh. Arjan Singh purchasing the land in his own name. The plea is

of everybody being aware since the date of purchase of the land being in the

name of the respondent / plaintiff only.

24. Taking the reasoning given by the appellants / defendants logically

further, even if at the time of purchase of the land in the year 1965, the

respondent / plaintiff was the only major child of Sh. Bachhan Singh and

Sh. Arjan Singh, admittedly the appellant / defendant No.2 being the eldest

son of Sh. Arjan Singh, at the time of commencement of construction in the

year 1971 was of age and himself carrying on construction business. He has

rather deposed having done his matriculate in the year 1967. If the reason

for purchase of the land in the name of respondent / plaintiff only was of

him alone being major at that time, in the ordinary course of human

behaviour upon the eldest son of Sh. Arjan Singh coming of age and being

admittedly more educated than the respondent / plaintiff, documents

showing joint ownership of the property would have been executed.

25. The reliance by the senior counsel for the appellants / defendants on

the judgment supra of the Rajasthan High Court in this regard is thus

misconceived. In that case, the parties were in joint business. The question

whether a particular sale is benami or not is largely one of fact and even a

little difference in facts can make a judgment cited as precedent

inapplicable.

26. Though in my view the appellants / defendants having failed to

satisfy the condition of existence of a plausible justification for entering into

a benami transaction, no further enquiry is required to be made and they are

bound to fail but for the sake of completeness, I proceed to deal with the

other arguments also.

27. Save for a bare plea in the written statement of Sh. Arjan Singh

having paid 50% of the purchase consideration for the plot of land to the

respondent / plaintiff, there is absolutely no other evidence of the appellants

/ defendants or their predecessor Sh. Arjan Singh having contributed to the

construction for the purchase of the plot of land. Though the senior counsel

has attempted to fill the said lacuna by arguing that the purchase price of the

land was inconsequential to the cost of construction but his argument on the

aspect of the cost of construction is of account being maintained penny-wise

and attention was drawn to entries in Ex.PW24/D1 of as low as an amount

of 50 paise. When the appellants / defendants were keeping accounts of

even 50 paise spent on construction, it is inconceivable that they would not

have kept accounts of the payment of the purchase consideration.

Moreover, the appellants / defendants have pleaded that they were carrying

on business and employing munshis and maintaining accounts and in these

circumstances the failure of the appellants / defendants to account for

contribution to the purchase consideration of the plot of land has but to be

inferred as failure to prove any contribution towards purchase consideration

of the land. The contention of the senior counsel for the appellants /

defendants that it was for the respondent / plaintiff to have proved that he

had paid the entire purchase consideration cannot be accepted as the same

looses sight of the fact that the registered document records the purchase

consideration for the land to have been paid by him.

28. The argument of the senior counsel for the appellant / defendant of

accounts of money spent on construction being in the custody of the

appellants / defendants is also without any basis. The appellants /

defendants were also at the contemporaneous time in the construction

business. Mere production of accounts of construction without establishing

the same to be with respect to the suit property is of no avail. The senior

counsel for the appellants/defendants having laid much emphasis on the

closeness and duality of the relationship between the families, I had during

the hearing put to the senior counsel for the appellants/defendants and am of

the view that the same can also work to the prejudice of the

appellants/defendants inasmuch as the same could have also allowed the

accounts even if of construction of suit property, to have come into custody

of appellants/defendants.

29. As far as the plea of the appellants / defendants having spent monies

on construction is concerned, the said plea is with respect to the ground

floor only. It being not in dispute that the joint bank account of

appellant/defendant No.1 and the respondent/plaintiff shows deposit and

withdrawal of Rs.15,957.81p only, it was enquired from the senior counsel

for the appellants/defendants whether there is any other documentary

evidence of the appellants/defendants having borne the remaining of the

total amount of Rs.1,25,000/- admittedly spent on construction.

30. The senior counsel for the appellants/defendants has fairly admitted

that there is none except for the statement of accounts of construction

materials purchased by the appellants/defendants.

31. The plea, of respondent / plaintiff and / or Sh. Bachhan Singh having

spent monies on construction of the first floor of the share of the appellants /

defendants also and having recovered the same by realizing rent of the

portion of the first and second floor of the share of the appellants /

defendants has also not been established. On the one hand, the senior

counsel for the appellants / defendants contends that accounts in annas and

paise of construction were being maintained and on the other hand no

accounts of what amounts were spent by the respondent / plaintiff and / or

Sh. Bachhan Singh on behalf of appellants / defendants and how much they

realized from rent, were maintained. The only inference again can be that

there was no such arrangement.

32. It was also enquired from the senior counsel for the

appellants/defendants whether the appellants/defendants, between the year

1984 when the suit from which this appeal arises was filed and at least from

the filing whereof the appellants/defendants had notice that the

respondent/plaintiff was denying their claim of being actual owner of the

property and till the year 1993 when the appellants/defendants were

admittedly not in possession of the upper floors of the property, take any

action for recovery of possession thereof or for declaration of their title with

respect thereto and whether not the right, if any, of the appellants/defendants

to take such action became time barred in the said period.

33. The senior counsel for the appellants/defendants again fairly stated

that no such action was taken by the appellants/defendants and though the

right to take action may have become time barred but the same does not

come in the way of the appellants/defendants taking the requisite pleas as a

defence to the claim by the respondent/plaintiff for possession of the said

floors.

34. The only other argument of the senior counsel for the appellants /

defendants of construction in the form of two independent units having been

only for the reason of the appellants / defendants having right as owner to

one of the said units is also found to be not made out. The plea of the

appellants / defendants in their written statement was of "the plan for

construction of two houses having been got sanctioned from the MCD and

two identical houses having been built". However the appellants /

defendants failed to even file any site plan. The justification now given of

admissions in the cross-examination of the respondent / plaintiff are of no

avail. The sanctioned site plan proved by the respondent / plaintiff does not

show sanction having been obtained for construction of two independent

units in the property. The appellants / defendants have thus not proved as to

how the property has been divided between the respondent / plaintiff, Sh.

Bachhan Singh and the appellants / defendants and / or that the two portions

are equal. The second floor barsati as per the sanctioned plan comprise of

one room only. As far as the admission of existence of two stair cases is

concerned, it is the admitted position that the two portions of the first floor

have always been let out separately. The plot in question is not a square or a

rectangular one but is much narrower in front than on the rear and it is well

nigh possible that considering the odd dimensions of the plot, one stair case

would not have conveniently provided access to the two units constructed

on the upper floor. As far as the construction of two units on the first floor

is concerned, the same does not give rise to presumption of the same being

in acknowledgment of equal rights of the two brothers; judicial notice can

be taken of owners of properties constructing two instead of one unit when a

floor is intended to be let out, as smaller units fetch more rent.

35. Another test lay down by the Supreme Court in the judgment supra

and in which also the appellants fail is of the appellants / defendants being

not in custody of any of the title documents pertaining to the house. It

cannot be lost sight of that the parties are businessman who often make use

of title documents of their properties to secure loans and financial advances.

There was no reason for the appellants / defendants to for so many years

having not demanded a document affirming their title to 50% of the

property for use for securing such loans / financial advances.

36. What I also find strange is that though the claim of the

appellants/defendants was of Sh. Bachhan Singh and Sh. Arjan Singh being

the real owners and the respondent/plaintiff being the Benami owner and,

even though Sh. Arjan Singh was no more at the time of institution of the

suit but neither Sh. Bachhan Singh nor the appellant/defendant No.1 i.e.

Smt. Chanan Kaur wife of Sh. Arjan Singh, who were both alive throughout

the period of pendency of the suit, were examined by the appellants /

defendants. In my opinion, they were the best witnesses to the defence set

up by the appellants/defendants.

37. No merit is found in the contention of the senior counsel for the

appellants / defendants of Smt. Chanan Kaur being one of the several

defendants, no adverse inference can be drawn from her non appearance for

the reason of the appellant / defendant No.2 having appeared. It is the case

of the appellants / defendants themselves that the property in the year 1965

was purchased benami in the name of the respondent / plaintiff for the

reason of the appellant / defendant No.2 being a minor in the year 1965.

The appellant / defendant No.2 thus could not be expected to be in the know

of the circumstances at the time of purchase in the year 1965 of the land

underneath the property and only the appellant / defendant No.1 could have

deposed of the same.

38. The appellants / defendants thus fail on all counts. Resultantly, the

appeal is dismissed. Though the suit in this appeal for recovery of

possession has been pending for the last nearly 30 years but neither did the

respondent / plaintiff make any claim for mesne profits / damages for use

and occupation nor did the learned Additional District Judge make any such

order as could have been made as per the judgments in R.S. Madanappa Vs.

Chandramma AIR 1965 SC 1812 and Gopal Krishna Pillai Vs. Meenakshi

Ayal AIR 1967 SC 155 even without any specific prayer nor was any order

for payment of mesne profits while granting stay of execution of the

judgment was made. Though according to me this is a fit case for award of

mesne profits but in the absence of the counsels having been heard on the

said aspect, I refrain from doing so. However the case of the appellants /

defendants having been found to be false, I burden them with costs of

Rs.50,000/- of this appeal payable to the respondent / plaintiff within 90

days hereof.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 18, 2013 Bs/gsr