JUDGMENT
Sat Pal, J.
1. This suit has been filed by the plaintiff for passing a decree for declaration in his favor and against the defendant to the effect that he is the absolute and sole owner of property bearing No. B-5/204, Safdarjung Residential Scheme, New Delhi.
2. The facts of the case as stated in the plaint are that the plaintiff and the defendant are real brothers. It is further stated in the plaint that a plot of land bearing No. B-5/204, Safdarjung Residential Scheme, New Delhi measuring 213 square meters was purchased in public auction from the Delhi Development Authority (for short called ‘DDA’) on 27th June, 1971 and a residential house was constructed thereon. It is then averred that from the very inception, that is, since November 1975, the plaintiff along with the members of his family had been exclusively living in this house. It is then alleged that the plaintiff had been openly giving out and declaring himself to be the sole and exclusive owner of the said property and he never acknowledged or admitted any right, interest or title of the defendant in this property. It has also been submitted that even otherwise the plaintiff has become the absolute owner of the said property by virtue of adverse possession.
3. It is further stated in the plaint that the plaintiff had called upon to admit the claim of the plaintiff that he was the sole and absolute owner of the said property by way of adverse possession but the defendant had refused to admit the claim of the plaintiff. Hence this suit has been filed against the defendant.
4. Summons of the suit were issued to the defendant. After receipt of the summons, written statement was filed on behalf of the defendant, thereafter the plaintiff filed an application bearing IA No. 8963/91 under Order 6 Rule 17 of the Code of the Civil Procedure seeking amendment of the plaint to the effect that the plot in question was purchased by the plaintiff from the DDA in public auction in the name of the defendant and the whole money was invested by the plaintiff and further the building on the plot was constructed by the plaintiff with his own investment and since the date of construction i.e. November 1975 the plaintiff had been exclusively residing in the said property and the defendant, who was only lender of the name, was never in possession of any part of the property in suit. Since the application was not opposed by the defendant, the same was allowed vide order dated 6th April, 1992 and the amended plaint was taken on record.
5. On 3rd August, 1992 the learned Counsel for the defendant submitted that the defendant did not want to contest the suit and as such he had not to file any document. Vide order dated 4th March, 1993 the parties were directed to file the documents and affidavits within six week Pursuant to this order the plaintiff has filed his affidavit dated 28th April, 1993 in support of the averments made in the plaint.
6. Mr. Vijay Kishan, learned Counsel appearing on behalf of the plaintiff submitted that admittedly the plot in question was purchased from the DDA by the plaintiff who had paid the whole amount of auction and the defendant had only lent his name. He further submitted that the building on the said plot was also constructed by the plaintiff with his own funds and the plaintiff along with the members of his family right from the date of the construction of the building had been residing in the suit property and the defendant had never been in possession of any part of the property. He, therefore, contended that since the possession of the suit property was not transferred to the defendant, the provisions of Benami Transaction (Prohibition) Act. 1988 (hereinafter referred to as the Act) are not applicable to the present case. In support of his contention the learned Counsel placed reliance on a judgment of Kerala High Court in Ouseph Chacko and Anr. v. Raman Nair Raghavan Nair,1 and a judgment of this Court in Krishan Kumar v. Harnam Dass (deceased) and Ors.,2 1990(2) DL 204.
7. The learned Counsel further submitted that the plaintiff admittedly had been in exclusive possession of the suit property since 1975. He, therefore, contended that the plaintiff has become the absolute owner of the suit property by virtue of adverse possession.
8. Mr. Bhaskar, the learned Counsel appearing on behalf of the defendant submitted that he had the instructions from the defendant not to oppose the suit and submitted that the suit may be decreed in favor of the plaintiff and against the defendant.
9. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and have also perused the record. I do not find any merit in the contention of the learned Counsel for the plaintiff that the plaintiff has become absolute owner of the suit property by virtue of adverse possession as the plea of adverse possession can be raised in defense in a suit for recovery of possession but the relief for declaration that the plaintiff has become absolute owner, cannot be granted on the basis of adverse possession.
10. Before dealing with the other contention of the learned Counsel for the plaintiff that the provisions of the Act are not applicable to the facts of the present case, it will be relevant to refer to Section 4 of the Act which reads as under:-
“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 defense 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 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 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 reading of Section 4 of the Act it is clear that Section 4 prevents any suit, claim or action to enforce any right in respect of any property “held benami. While interpreting Section 4 of the Act a learned Single Judge of Kerala High Court in the case of Ouseph Chacko (supra), relying on the meaning of the words “hold” as given in the Black’s dictionary observed that the word “held” has to be understood as “possessed or occupied”. He further observed that if the possession or occupation is not benami, Section 4 of the Act can have no application. Relying on the aforesaid judgment of the Kerala High Court a learned Single Judge of this Court in the case of Krishan Kumar (supra) held that in case the possession of a property is with the real owner and that too for any express or implied intention of the parties, it cannot be said that the benamidar holds the property i.e. he is in possession of the property.
11. In the present case admittedly the defendant who is a benamidar, had never been in possession of the suit property right from the date of the purchase/construction. In view of the law laid down in cases of Ouseph Chacko (supra) and Krishan Kumar (supra) I hold that the provision of Section 4 of the Act is not applicable to the facts of the present case. Hence the plaintiff is entitled to succeed in this case.
12. Accordingly, I pass a decree for declaration in favor of the plaintiff and against the defendant to the effect that the plaintiff is absolute and sole owner of property No. B-5/204. Safdarjung Residential Scheme, New Delhi. Let a decree be drawn accordingly. The parties are, however, left to bear their own costs.
