Smt. Saroj vs Smt. Kusum Devi
2014 Latest Caselaw 2828 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.148/2014

%                                                    30th May, 2014

SMT. SAROJ                                                     ..... Appellant
                          Through:       Mr.Ankit, Advocate

                          Versus

SMT. KUSUM DEVI                                               ..... Respondent
                          Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M.No.9954/2014
1.    For the reasons stated in the application, delay of 26 days in re-filing the
appeal is condoned, subject to just exceptions.
2.    C.M stands disposed of.
C.M.No.9953/2014
1.    Exemption allowed, subject to all just exceptions.
2.    C.M stands disposed of.
RSA No.148/2014 & C.M.No.9952/2014 (Stay)
1.    This regular second appeal under Section 100 of CPC impugns the
concurrent judgments of the Courts below; of the Trial Court dated 27.4.2013
and the First Appellate Court dated 21.2.2014; by which the suit of the
appellant/plaintiff for partition/declaration/possession and injunction was
dismissed.
2.    The appellant/plaintiff claimed that she was the owner of the suit

RSA No. 148/2014                                                 Page 1 of 3
 property bearing no.79/6/1, village Nangloi Jat Colony as house no.RZC-50
(old no.RZB-11), Nangloi Jat Colony, New Delhi.                 She claimed to have
purchased the property for a consideration of Rs.1,85,000/- from its lawful
owner Udai Bir Singh. The appellant/plaintiff claimed that she had paid the
entire price and Udai Bir Singh executed the usual documents being the
agreement to sell, power of attorney, receipt, affidavit etc. on 18.8.1998, jointly
in favour of the plaintiff and the defendant.           It was contended that the
respondent/defendant actually did not pay any price whatsoever and the
appellant/plaintiff is the sole owner of the suit property.
3.    The respondent/defendant pleaded that the appellant/plaintiff had nothing
to do with the suit property and the suit property was purchased by Balram, the
husband of the respondent/defendant and in whose favour the documents dated
18.8.1998 were executed. These documents were duly registered with the Sub-
Registrar.
4.    Both the Courts below have found that the documents showing
rights/title in the suit property were in the name of the husband of the
respondent/defendant,     and     which    were    in    fact     admitted   by    the
appellant/plaintiff being the documents Ex.PW3/D1 (GPA), Ex.PW3/D2
(Agreement to Sell), Ex.PW3/D3 (Affidavit) and Ex.PW3/D4 (Receipt).
Accordingly, the Courts below have held that the appellant/plaintiff has no
concern with the suit property.
5.    In my opinion, besides the fact that the appellant/plaintiff failed to prove
any title to the suit property, the suit ought to have been dismissed at the very
initial stage because the suit was barred by the provisions of Benami
Transactions (Prohibition) Act, 1988, inasmuch as, the husband of the
respondent/defendant was, as per the documentation, the owner of the suit
property. However, this issue was not urged and framed and therefore the suit


RSA No. 148/2014                                                     Page 2 of 3
 was tried to the hilt; the first appeal was filed which was dismissed and now
this second appeal is filed and all of which was unnecessary because of the
Benami Act.
6.    In view of the above, since no substantial question of law under Section
100 of CPC arises, the appeal is not maintainable and therefore the same is
dismissed, leaving parties to bear their own costs.
7.    Since the appeal is dismissed, the stay application is also dismissed.




MAY 30, 2014                                      VALMIKI J. MEHTA, J.

KA