Ved Prakash vs Usha Verma & Anr
2014 Latest Caselaw 539 Del

*           HIGH COURT OF DELHI AT NEW DELHI

+                       C.S. (OS) No.266/2012

                                             Decided on : 28.01.2014

    VED PRAKASH                                  ..... Plaintiff

                 Through:      Mr. J.C. Mahindroo, Advocate.

                      versus

    USHA VERMA & ANR                             ..... Defendants

                 Through:      Mr. R.L. Bhatia, Advocate.

    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI

    V.K. SHALI, J. (ORAL)

IA No.8118/2013

1. This is an application filed by the defendant under Section 151

CPC for modification of the order dated 01.04.2013 with regard

to restoration of issue No.6. The reply to the application has

been filed.

2. I have heard the learned counsel for the parties and have gone

through the record.

3. The plaintiff has filed a suit for possession and recovery of

mesne profits/damages against defendant No.1/Smt.Usha

Verma and her son Mr.Ajay Kumar Verma/defendant No.2.

4. The case which has been set up in the plaint is that the plaintiff

is the owner of the property bearing No.D-13/4, Model Town,

Delhi 110009 having purchased a plot of land from Sh.Jagdish

Chander Chopra through a registered sale deed dated

04.10.1967. It was stated in the plaint that the plaintiff out of

natural love and affection for his younger brother Sh.Gyan

Prakash, who is the husband of defendant No.1 and father of

defendant No.2, had also included his name as a co-owner in the

sale deed when Sh.Gyan Prakash was a student. It has been

alleged that the plaintiff constructed a building comprising of

ground floor, first floor and a barsati floor and obtained

electricity and water connections in his own name. The plaintiff

after construction retained the ground floor of the suit property

under his lock and key while as the first floor and the barsati

floor was let out by the plaintiff exclusively for security of the

house and the plaintiff recovered the rent from the tenants. It is

further alleged that the parents of the plaintiff who were living at 92A, Kamla Nagar, Delhi were being pressurized by their

landlord to vacate the tenanted premises and consequently the

plaintiff allowed his parents and his younger brother Sh.Gyan

Prakash to shift to the suit property as a gesture of good will

without charging any licence fee. It has been stated that the

plaintiff shifted to the first floor and the barsati subsequently

while as the ground floor was given Sh.Gyan Prakash. It has

been alleged that the parents of the plaintiff expired and so did

his younger brother Sh.Gyan Prakash in the year 2000. It has

been alleged that the defendants have no right, title or interest in

the suit property and therefore, they must vacate the premises.

The suit for possession in respect of the ground floor of the suit

property which is under the occupation of the defendants, was

accordingly filed.

5. The defendants have filed their written statement contesting the

claim. It has been stated by them that the suit is barred by

Section 4(1) of the Benami Transactions (Prohibition) Act, 1988

inasmuch as Sh.Gyan Prakash, who is husband and father of

defendant Nos.1 and 2 respectively, was the co-owner of the

property as his name is recorded in the sale deed dated 04.10.1967. Apart from this, various other objections were

taken. The court vide order dated 04.12.2010 framed six issues

and one of the issues being issue No.6 was "Whether the suit

is hit by Benami Transactions (Prohibition) Act, 1988?" The

onus of the same was put on the defendant. So far as issue No.3

is concerned, the same was with regard to the pecuniary

jurisdiction of the court to decide as to whether the court had

the competence to entertain the said suit.

6. It may be pertinent here to mention that the suit at the relevant

time was pending in the court of Addl.District and Sessions

Judge and on 01.04.2013, nearly two and half years later, the

counsel for the plaintiff appeared before the transferee court that

is High Court and he made a statement that so far as issue of

pecuniary jurisdiction of the court to try and decide the suit is

concerned, that has become redundant and therefore be treated

as deleted. With regard to issue no.6, which was regarding

maintainability of the suit on account of the Benami

Transactions (Prohibition) Act, 1988, the court deleted that

issue. The counsel for the defendant did not object. The

counsel for the defendant No.2 has now filed the present application contending that the said issue No.6 is the main issue

which goes to the root of the matter and, therefore, the same

may be restored. This has been contested by the learned

counsel for the plaintiff on the ground that at the time when the

suit property was purchased the father of defendant No.2, who

happens to be the husband of defendant No.1, was a minor and

a school going child with no independent income and, therefore,

the said issue need not be revived.

7. There is no dispute about the fact that the sale deed of the suit

property is jointly in the name of the plaintiff and his younger

brother late Sh.Gyan Prakash. No doubt the percentage of

ownership is not mentioned in the sale deed dated 04.10.1967,

but in such a eventuality where the percentage of ownership is

not mentioned both the plaintiff and his younger brother late

Sh.Gyan Prakash will be the co-owners in equal proportion.

8. In the light of this, the question of maintainability of the suit in

view of Section 4(1) of the Benami Transactions (Prohibition)

Act, 1988 is only a legal issue which ought not to have been

deleted and in any case, the onus with regard to the proof of the

said issue has been put on the defendant and therefore in my considered opinion no prejudice is going to be caused to the

plaintiff in case the said issue is revived.

9. Apart from this, the issue of suit being hit by Section 4(1) of the

Benami Transactions (Prohibition) Act, 1988 is essentially an

issue of law and even if the said has been deleted, there is no

estoppel on the part of the counsel for the defendants in having

the said issue revived. Thus in the totality of the circumstances,

I feel that the application of the defendant/applicant be allowed

and the issue no.(vi) pertaining to maintainability of the suit in

the light of the bar of Section 4(1) of the Benami Transactions

(Prohibition) Act, 1988 deserves to be revived as was originally

framed vide order dated 04.12.2010. Ordered accordingly.

CS(OS) No.266/2012

1. The plaintiff is directed to file the list of witnesses and the

evidence by way of affidavit, if not already done, within four

weeks from today.

2. List before the Joint Registrar on 06.05.2014.

V.K. SHALI, J.

JANUARY 28, 2014/dm