ORDER
Mohd. Shamim, J.
1. This is a suit for recovery of possession over a portion of the property bearing No. 49/7, Punjabi Bagh, New Delhi, shown by red colour in the plan annexed with the plaint (hereinafter referred to as the disputed property for the sake of convenience) and for recovery of mesne profits to the tune of Rs. 1400/- for use and occupation of the same. The plaintiff also claims pendente lite and future mesne profits at the rate of Rs. 2100/- per mensem.
2. Brief facts which are required to be gone into for the purposes of disposal of the present suit are as under: that the plaintiff is the sole owner of the property bearing house No. 49, Road No.7, Punjabi Bagh, New Delhi. The plot of land for construction of the said house was purchased by the plaintiff from one Shri Tek Chand through registered sale deed dated April 25, 1964. The disputed property was was got mutated in the name of the plaintiff in the record of the Municipal Corporation of Delhi on June 17, 1964. The construction of the disputed property on the said plot was got done during the years 1964-65. The completion and occupancy certificate dated January 13, 1965 was also issued in favour of the plaintiff by the Municipal Corporation of Delhi. The plaintiff had also obtained four electric connections and two water connections in the year 1965 in her name for the better and proper use of the disputed property. The house tax in respect of the disputed property is also being assessed in the name of the plaintiff and is being regularly paid by her. The plaintiff rented out the disputed property to different tenants and had been collecting the rent from them till the year 1971.
3. Defendant No.1 is the real elder brother of the husband of the plaintiff. Defendants Nos. 2,4 and 6 are the sons of defendant No.1. Defendants Nos. 3,5 and 7 are the daughters-in-law of defendant No.1. Defendant No.1 was in government service and retired in the year 1970. Defendant No.1 was in occupation of a government flat No. 46A, Pandara Road, New Delhi, till his retirement. The plaintiff and her other family members were also residing with defendant No.1 in the said official accommodation. They shifted to a portion in the disputed property shown by green colour in the site plan in April 1971. The two lofts over bath rooms and latrines shown by yellow colour are also in occupation of the plaintiff. The defendants were permitted on their request, out of love and affection for them to occupy a portion of the disputed property shown by red colour as licensees. The defendants now with ulterior motives have refused to vacate the disputed property
despite requests to that effect. The license of the defendants was cancelled on May 8, 1984 when they got constructed a house of their own bearing No. B-239, Prashant Vihar, Delhi. Consequently they were served with a notice dated September 20, 1984 whereby they were requested in writing to vacate the disputed property on or before October 10, 1984. However, even then the defendants have refused to vacate the disputed property. Since the defendants have failed to vacate the disputed property they are liable to pay damages to the plaintiff at the rate of Rs. 2100/- per month with effect from October 11,1984 onwards. The defendants are liable to pay a sum of Rs. 1400/- to the plaintiff being the mesne profits for the period from October 11,1984 to the date of the institution of the suit i.e., October 30, 1984 at the above said rate. In the above circumstances the plaintiff was compelled to bring forward the present suit.
4. The defendants put in contest, inter alia, on the following grounds: that it is true that the sale deed in respect of the disputed property is in the name of the plaintiff, however, half of the consideration for the purchase of the plot on which the disputed property was constructed was provided by Shri Manphool Singh Jain, i.e. defendant No.1. The name of the plaintiff was only utilised for the purchase of the said plot of land as she was the only lady in the family at the relevant time. The wife of late Shri Manphool Singh Jain had died prior to the purchase of the said plot. None of the sons of the deceased Manphool Singh Jain was married till then. The construction on the aforesaid plot was raised in a manner so as to facilitate the separate occupation by two families. The plaintiff bore the expenses of the construction of her portion whereas late Shri Manphool Singh Jain bore the expenses in respect of his portion. Shri Manphool Singh
Jain paid half of the house tax in respect of the portion in his occupation to the husband of the plaintiff on receipt of the house tax bills in the name of the plaintiff. The defendants are also paying electric charges for the electricity consumed by them. The defendants have been residing in the portion in their occupation for the last more than 12 years. Hence they have become owners thereof by adverse possession. The defendants are in occupation of the disputed property in their own right. The plaintiffs have got no right to get the same vacated from them. The defendants are not liable to pay any damages to the plaintiff. The suit is under valued and the court fee is insufficient. The disputed property is a joint Hindu family property purchased out of the joint family funds by the husband of the plaintiff and late Shri Manphool Singh Jain. The husband of the plaintiff and late Shri Manphool Singh Jain contributed equally for the purchase
of the plot and towards the cost of construction of the disputed property. The husband of the plaintiff and late Shri Manphool Singh were jointly running the business under the name and style of M/s Delhi Optical and Chemical Works. It was a joint family business set up with the help of joint family funds. The amounts spent by the plaintiff and late Shri Manphool Singh Jain for purchase of the plot of land and on the construction of the disputed property were out of the profits of the said firm besides savings of the parties. Benami Transaction (Prohibition) Act, 1988 (Act No.45 of 1988) is not applicable to the facts of the present case as the present suit was pending decision on the date the said Act came into force. The said Act is ultra-vires the Constitution of India and is liable to be struck down. The suit is false and frivolous and is liable to be dismissed.
5. The following issues were framed by my learned predecessor.
1. Whether the plaintiff has paid proper Court Fee on the plaint? OPP
2. Whether the defendants are in possession of the property as licensees? OPP
3. To what amount of damages and mense profits is the plaintiff entitled and from what date? OPP
4. Whether the plaintiff is entitled to any interest, if so on what amount and at what rate and for what period? OPP
5. Whether defendant No.1 is the owner of 1/2 portion of the property as alleged? OPD
6. Whether the defendants have become owner of the portion in their occupation by adverse possession? OPD
7. Whether the plea of benami taken by the defendants is not maintainable by virtue of Section 281A of the Income Tax Act,
1961? OPP
8. Whether the plaintiff is entitled to possession of the portion in occupation of the defendants? OPP
9. Whether the defendant No.1 has made any permanent construction? If so to what effect? OPD
9(A). Whether the husband of the plaintiff and late Shri Manphool Singh Jain were jointly running the business under the name and style of M/s. Delhi Optical & Chemical Works? OPD
9(B). Whether the said business was set up from the joint family fund and the firm was a joint family business? OPD
9(C). Whether the plot was purchased and the construction of the building was done out of the profits of the said firm? OPD
9(D). Whether the provision of Section 3, 4 & 5 of Benami Transaction (Prohibition) Act, 1980 are ultra-vires?
9(E). Even if, issue No. 9(A) to 9(C) are proved in affirmative whether still the plea of joint ownership is barred by the provi sion of Section 4 of the Benami Transaction (Prohibition) Act, 1980.
10. Relief.
Issue Nos. 1,4,7, 9(D) & 9(E)
6. The above issues were not pressed by learned counsel for the parties. As such, the same were ordered to be deleted.
Issue Nos. 2,5,6,8,9(A), 9(B) & 9(C)
7. All the above issues are inter-connected and as such, they can be conveniently decided together.
8. Learned counsel for the plaintiff Mr. Valmiki Mehta, has vehemently contended that the defendants are in occupation of the disputed property as licensees thereof under the plaintiff since 1971. The said licence was cancelled by the plaintiff from May 8, 1984 onwards (vide paras 11 & 13 of the plaint). The defendants have failed to vacate the disputed property despite the cancellation of the said licence. Hence they are living therein as unauthorised occupants. Consequently they are liable to be evicted.
9. Learned counsel for the defendants Mr. Ramesh Chandra, Senior Advocate, on the other hand, has urged to the contrary. According to him, the defendants are in occupation of the disputed property in their own right as owners thereof. The learned counsel has argued that defendant No.1 paid half of the sale consideration at the time of the purchase of the plot of land underneath the premises bearing No. 49/7, Punjabi Bagh, New Delhi. They also contributed half of the amount to the amounts which were spent while raising construction on the said plot. It has further been argued that it is true that the disputed property is in the name of the plaintiff, however, the plot of land for the purpose of building a house was purchased ‘benami’ in the name of the plaintiff as defendant No.1 and the husband of the plaintiff were real brothers and there was no other lady in the family except the plaintiff. Defendant No.1 Shri Manphool Singh Jain and the husband of the plaintiff Shri Gyan Chand Jain were both in service. Defendant No.1 was a senior scientist in Government of India whereas the husband of the plaintiff was an employee of DESU. In the above circumstances the disputed property was purchased in the name of the plaintiff. In the alternative, it has been urged for and on behalf of the defendants that the defendants have perfected their title by adverse possession. Hence they are living in the disputed property as owners thereof.
10. The plaintiff in order to show and prove that she is the owner of the disputed property has herself entered into the witness box and stated so in her averment on oath. To the same effect is the statement of her husband PW1 Shri Gyan Chand Jain. Besides the above the plaintiff has placed on record quite a good number of documents in support of her case. Ex. P1 is the copy of the sale deed. A perusal of the same reveals that she purchased the said plot from one Tek Chand on April 25, 1964. The said plot was later on got mutated in the name of the plaintiff in the municipal records on
June 17, 1964. (vide Ex. P2 ). The plaintiff thereafter applied for permission to raise construction on the said plot of land. The permission was granted to her vide Ex. P3. Ex. P4 is the occupancy certificate issued in the name of the plaintiff. Ex. P5, P6 and P8 are electricity bills issued in the name of the plaintiff. Ex. P9 to P18 are house tax receipts in the name of the plaintiff.
11. The case of the defendants, on the other hand, as referred to above, is that they are the owners of the disputed property which is admittedly in their possession and occupation by virtue of having purchased the same from the plaintiff. This is the defense put forward by the defendants in the earliest point of time which is manifest from a reply given to the plaintiff vide notice dated October 12, 1984 (Ex. P22) to the notice sent by the plaintiff on September 20, 1984 (Ex. P21) whereby their licence to continue any further in the disputed property was terminated. I am tempted here to
cite a few lines from the said notice. “… It is submitted that my client i.e., Shri Manphool Singh Jain had purchased the half portion of house No. 49/7, Punjabi Bagh, New Delhi, for a consideration of Rs. 15,500/- from your client in the year 1967.” Surprisingly enough the defendants while filing their written statement dated January 3, 1985 took altogether a different position which is inconsistent with their above stand. It was stated in para 1 of the said written statement that it is true that the property was purchased in the name of the plaintiff but the half of the
consideration was paid by the defendant No.1 to the plaintiff. Later on the said written statement was got amended and an amended written statement was filed on October 3, 1989 wherein an additional plea with regard to adverse possession was taken (vide para 4 of the additional pleas). It was stated therein that the defendants have perfected their title by adverse possession in as much as they have been in occupation of the disputed property for more than 12 years.
12. It is evident from above that the defendants in order to substantiate their plea that they have been living in the disputed property in their own right have put forward three defenses i.e.,(a) they are owners of the disputed property since they purchased the same for a consideration of Rs. 15,500/- (vide Ex. P22); (b) the sale deed in the name of the plaintiff is simply benami. In fact it was defendant No.1 who paid half of the consideration (vide para 1 of the written statement dated October 3, 1989); and (c) since the defendants are in occupation of the disputed property for the
last more than 12 years they have perfected their title by adverse possession. Hence they have become owners thereof.
13. A party who claims title by adverse possession to a property belonging to someone else, it is a well established principle of law, must show the following:-
(i) He has been in occupation of the disputed property for more than 12 years without interruption;
(ii) his possession was to the exclusion of all the persons; and
(iii) the said possession must be open and hostile to the true owner.
(iv) The other classical requirement of adverse possession is that it should be nec vi nec clam nec precario i.e., for the perfection of title the possession required must be adequate in continuity, in publicity and extent.
14. In Annasaheb Bapusaheb Patil Vs. Baldwin Babusaheb Patil, their Lordships of the Supreme Court while dealing with a case of adverse possession opined (vide paras 12 & 13)’adverse possession’ means a hostile assertion i.e. a possession which is express or implied and with continuity of title of the true owner. ” Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property
or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant’s interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”
15. Furthermore, it is a well established principle of law that a person who puts forward a hostile title to the title of the true owner is not entitled to any equities in his favour inasmuch as he wants to defeat the title of the true owner. It was observed in a case as reported in Mahesh Chand Sharma Vs. Raj Kumari Sharma & Ors. ” In this connection, we may emphasise that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession…”
16. With the above background let us now try to find out as to how far the defendants have succeeded in substantiating their contention that they have perfected their title to the disputed property by adverse possession.
17. The defendants claim themselves to be the owners in possession over the disputed property on the ground of their having purchased the same from the plaintiff for a consideration of Rs. 15,500/- (vide their reply notice dated October 12, 1984, Ex. P22 to the notice from the plaintiff). How the defendants can now be allowed to plead to the contrary that they have become owners of the disputed property by adverse possession. It has already been observed above that a person who traces his possession to a lawful title can never become an owner by adverse possession. How a person,
who claims himself to be the true owner of a particular property, can claim to be the owner of the same by adverse possession. Admittedly, ‘adverse possession’ means a hostile assertion which is expressly and impliedly in denial of the title of the true owner. Thus the defendants cannot be permitted to blow hot and cold in the same breath.
18. There is another aspect of the matter. The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and the foremost condition is, that the property must belong to someone else other than the person pleading his title on the basis of adverse possession. In the instant case the defendants have put forward defenses which are irreconcilable and mutually destructive and inconsistent with one another.
19. The case of the plaintiff is that defendant No.1 and his progeny being closely related to the plaintiff were permitted to occupy a portion of the premises bearing No. 49/7, Punjabi Bagh, New Delhi, out of love and affection and regard for them. Now the defendants are out to misuse the said concession granted to them. It is the plaintiff as I have already referred to above who is paying the house tax of the disputed property. It is only the plaintiff who is spending from her own pocket for the maintenance and upkeep of the disputed property (vide statements of PW1 Shri Gyan Chand
Jain and PW2 Smt. Rama Kanta Jain). The defendants, on the other hand, have not placed even a single tiny piece of paper in order to show and prove that they are claiming the disputed property by adverse possession publicly to the exclusion of the entire world.
20. DW5 Shri Shubh Kumar Jain has admitted during the course of his crossexamination that he does not know as to what is meant by ‘adverse possession’. DW1 Sushil Kumar Jain on the other hand, has stated that neither defendant No.1 nor any other defendant filed income tax return claiming the ownership of the disputed property. It has further been admitted that the defendants never applied to the Municipal Corporation of Delhi for mutation of their name against the disputed property. Even the house tax, it is abundantly clear from above, was always paid by the plaintiff (vide Ex. P9 to Ex. P18). It has been stated by DW5 Shri Shubh Kumar Jain that half of the amount of the house tax in respect of the entire property was always paid by his father i.e., Shri Manphool Singh Jain. However, to my mind, this is simply a self-serving statement, in the absence of any document to that effect. There is nothing on record to show and prove that half of the house tax was paid by defendant No.1. Furthermore, it has been admitted by DW1 Shri Sushil Kumar Jain that water and electricity meters are in the name of Smt. Rama Kanta Jain. He further goes on to state that since the property was not in their name therefore, they neither filed any suit nor took any other action before any authority to claim the disputed property as their property. PW2 Smt. Rama Kanta Jain has deposed to the fact that the entire expenditure on the maintenance of the disputed property is incurred by her. There is absolutely no cross examination on the said point. Hence the said fact would be deemed to have been admitted as the same goes un-challenged and un-controverted.
21. In view of the above I am of the view that the defendants have miserably failed to substantiate their claim of ownership by adverse possession. Issue No.6 is decided accordingly against the defendants and in favour of the plaintiff.
22. This brings us to the plea with regard to ownership. It has already been observed above that the claim of the defendants with regard to the ownership over the disputed property is two fold. It has been stated by the defendants, already alluded to above, that the defendants claim the ownership over the disputed property on the ground that the same was purchased by defendant No.1 Shri Manphool Singh Jain from the plaintiff for a consideration of Rs. 15,500/- ( vide Ex. P22). However, the defendants did not confine themselves to the said plea while filing their written statement as the wisdom dawned upon them that the said plea would be hit by Section 17 of the Indian Registration Act as any property of the value of more than rupees one hundred cannot be sold and purchased unless the sale deed in respect thereof is registered. Thus having become wiser with the passage of time they sought refuge in the plea of ‘benami’.
23. They have stated in para 1 of their written statement that it is true that the sale deed in respect of the disputed property is in the name of the plaintiff, however, half of the consideration thereof was paid by defendant No.1. It has further been averred (vide para 4 of the written statement) that the house on the plot bearing No. 49/7, Punjabi Bagh, New Delhi, was built in two different portions. Defendant No.1 bore the cost of construction of his portion whereas the plaintiff got constructed her own portion at her own cost. Curiously enough the written statement is conspicuously silent on the point as to what was the actual amount of the half consideration and as to when it was paid because no specific date has been mentioned in the written statement with regard to the time of payment. Similarly, the written statement is also silent on the point as to what was the source of the said payment. The defendants, however, examined certain witnesses with regard to the proof of the payment. DW1 Sushil Kumar Jain has got this to say with regard to the price of the plot and payment of the half consideration by his father in respect of half portion of the property bearing No. 49/7, Punjabi Bagh, New Delhi, that the price of the plot in question must have been Rs. 12,000/- because his father paid half of the
price i.e. Rs.6000/- for the purchase of the plot. Admittedly, the price of the plot is Rs. 7000/- as is crystal clear from the copy of the sale deed placed on record (vide Ex. P1). This goes to show that DW1 Shri Sushil Kumar Jain is simply telling a lie while stating so. He is not even aware of the actual price of the impugned plot. Thus his statement with regard to the payment of Rs. 6000/- by his father is nothing but a tissue of lies. Furthermore, while stating so he does not tell us as to whom and at what time payment was made. DW2 Dr. S.C.Jain, on the other hand, has got a different tale to tell. According to him, half of the price of the plot was paid by his brother at the time it was purchased after having taken loan from the G.P.F. account. He further goes on to state that his brother contributed one half towards the cost of construction and the payments were made at the time of the construction. DW4 Shri Shubh Kumar Jain on the
other hand, asserted that his father paid a sum of Rs. 20,500/- as his share of the cost of the plot as well as the cost of construction on the said plot. The said payment, according to him, was made by means of cheques. It is amply clear from above that each of the witnesses produced by the defendants has got his own version with regard to the amount paid and its mode of payment.
24. It is in the statement of PW1 Shri Gyan Chand Jain that a sum of Rs. 38,000/- was spent on the construction of the property in suit whereas the impugned plot was purchased for a consideration of Rs. 7000/-. It implies thereby that the entire amount spent by the plaintiff for purchase of the plot and for raising construction thereon would come to Rs. 45,000/-. Thus the defendants should have shown that they made payment to the tune of Rs. 22,500/-.
25. The defendants have placed on record pass books and the conter-foils of the cheques which show the payments alleged to have been made to the plaintiff. Ex. DW1/23 and Ex. DW1/24 are the two pass books with regard to the account No. 5216 in Punjab National Bank. The said pass books show the following payments:-
Ex.DW1/23
12.3.67 Rs. 500/-.
6.5.67 Rs. 500/-
6.6.67 Rs. 500/-.
14.6.67 Rs.5000/-.
28.4.67 Rs.1000/-.
Total: Rs.7500/-.
Ex. DW1/24
9.12.70 Rs.3000/-.
9.12.70 Rs. 500/-.
3.2.71 Rs.1500/-.
8.2.71 Rs.2000/-.
12.2.71 Rs. 500/-.
24.2.71 Rs. 500/-.
Total: Rs.8000/-.
26. Ex.DW1/25 and Ex. DW1/26 are the pass books pertaining to Account No. 3710 in the United Commercial Bank. The said pass books show the payments given below:-
Ex. DW1/25
4.4.72 Rs. 4260/-
14.4.72 Rs. 600/-.
20.1.73 Rs. 4500/-.
24.9.73 Rs. 685/-.
9.1.74 Rs. 5000/-
15.1.75 Rs. 2000/-.
4.2.75 Rs. 1000/-.
16.2.76 Rs. 2000/-.
Total: Rs.20045/-.
Ex. DW1/26.
2.5.77 Rs. 5000/-.
27. Thus the total amount alleged to have been paid by late Manphool Singh Jain to the plaintiff would come to Rs. 40,545/-. The counter-foils of the cheques are Ex. DW1/9 to Ex. DW1/21. A close scrutiny of the above entries would reveal that all the payments are alleged to have been made from 1967 onwards. There is no payment alleged to have been made at the time of the purchase of the plot of land. The said plot of land as is manifest from the sale deed Ex. P1 was purchased on April 25, 1964. The construction on the plot was raised during the year 1964-65. The completion certificate was obtained on January 13, 1965. Thus it cannot be said by any stretch of imagination that the said payments were either made at the time of the purchase of the plot or during the course of the construction which was raised thereon subsequently.
28. The defendants have also placed on record a certificate issued by late Manphool Singh Jain (vide Ex. DW1/4). The said certificate shows that Shri Manphool Singh Jain advanced a sum of Rs. 5500/- to Smt. Rama Kanta Jain wife of Shri Gyan Chand Jain during the period 1964. Ex. DW1/2 & Ex. DW1/3 are the permissions to advance temporary loan by Shri Manphool Singh Jain to his brother. The said documents reveal that a total sum of Rs. 5500/- was advanced by way of loan by Shri Manphool Singh Jain to his brother Shri Gyan Chand Jain and the said amounts were advanced free of interest. Thus the said documents are absolutely of no avail to the defendants inasmuch as the said amounts were advanced by way of loan. Hence the said documents lead us nowhere. In any case they are of no avail to the defendants in order to show and prove that they contributed any thing either towards the purchase of the plot of land or towards the construction of the disputed
property.
29. Ex. DW1/6 is an application moved by defendant No.1 before the Scientific Adviser to the Ministry of defense and Director General, Research and Development Organisation. A perusal of the same reveals that defendant No.1 sought permission to purchase a residential accommodation through the said application from his brother’s wife Smt. Rama Kanta Jain i.e. the plaintiff herein, for a consideration of Rs. 15,500/-. Out of the said consideration a sum of Rs. 5500/- was to be adjusted towards the sale consideration which he had already paid by way of loan. He further undertook to pay Rs. 5000/-
to the plaintiff out of G.P.Fund and the remaining amount from his savings. However, the said document is also of no assistance to the defendants inasmuch as the same shows only the intention of defendant No.1 to purchase the house but it does not lead us to the conclusion that the same was in fact purchased.
30. Ex. DW1/7 is a certificate issued by the Assistant Director which shows that the application of defendant No.1 was forwarded for advance from G.P.Fund. Ex. DW1/9 is a certificate issued by defendant No.1 which shows that a sum of Rs. 5000/- was paid to the plaintiff.
31. The case of the plaintiff, on the other hand, is that it is true that certain amounts were advanced by defendant No.1 to the plaintiff. However, the same were by way of loan and the loan was repaid. The plaintiff in this connection has placed on record certain documents i.e., Ex. DW4/P-1 and P-2. Ex. DW4/P-1 is a certificate issued by United Commercial Bank. Ex. DW4/P-2 is a latter from M/s Delhi Optical and Chemical Works to the Manager, United Commercial Bank. After going through the same it is found that the plaintiff had sought for a certificate with regard to the payments made to Shri Manphool Singh Jain, defendant No.1. A perusal of the same reveals that a sum of Rs. 28,350/- was paid to defendant No.1 by the plaintiff from the account of M/s Delhi Optical and Chemical Works of which she was the proprietor. This goes to show that the plaintiff had borrowed certain amounts from the defendant No.1 which she lateron returned.
32. The other defense set up by the defendants is that the disputed property is a joint family property purchased out of joint family funds by the husband of the plaintiff and late Shri Manphool Singh Jain (vide para 11 of the additional pleas). Surprisingly enough there is absolutely no evidence on the file of this court to show that the disputed property is a joint family property and the same was purchased from HUF funds. It is in the statement of DW1 Shri Sushil Kumar Jain that his father was having a joint business with his brother Shri Gyan Chand Jain, though the said business was being run in the name of the plaintiff under the name and style of M/s Delhi Optical and Chemical Works. However, on being crossexamined it has been admitted by him that the said business was only in the name of the plaintiff as sole proprietor thereof. It has further been admitted by him that even after the retirement of his father in the year 1970 he never felt any need to change the name of the firm and to include his name therein. He further goes on to admit that he has got nothing to show with him that his father had one half share in the said business. The plaintiff on the other hand has placed on record the income tax clearance certificates (vide Ex. PW2/1, Ex. PW2/2 and Ex. PW2/3). The said certificates are in the name of the plaintiff as sole proprietor of M/s. Delhi Optical & Chemical Works, 49/7, Punjabi Bagh, New Delhi. The said certificates again go to show that it is the plaintiff and plaintiff alone who is
the sole proprietor of the said firm.
33. Learned counsel for the plaintiff has also led me through a family settlement ( Ex. DW1/P2) which took place in between the parties to the suit and Shri Hem Chand Jain i.e. the third brother of defendant No.1 with regard to the properties situated at Rohtak. Then there is a settlement with regard to the rental income from the properties at Rohtak (vide Ex. DW2/P1). Both the documents bear the signatures of the parties to the suit. Learned counsel for the plaintiff has contended on the basis of the above documents that the parties who have kept a record with regard to the settlement of the disputes in regard to properties situated at Rohtak, it is absolutely inconceivable that they would not have insisted on something in black and white with regard to their ownership of the disputed property which is the subject-matter of the present suit. It is also inconceivable that a party would neglect his interest and title to an immovable property and that, too, situated in Delhi and not make efforts to safeguard his or her interest at the earliest possible opportunity. This is not the conduct of a reasonable and prudent man and we are judged in our day to day activities by the said standard. There is absolutely no instrument in possession and power of Courts of Law to find out the truth. They have to rely upon the conduct of the parties and the circumstances obtaining at a particular time to arrive at the truth. Judged by that standard, I am of the view that the defendants have failed to substantiate their defense.
34. Learned counsel for the defendants has then led me through Ex. DW1/22, the diary alleged to have been maintained by defendant No.1. I have very carefully gone through the said diary. The said diary is alleged to have been maintained with regard to the expenses which the defendant No.1 incurred. I have very carefully gone through the said diary and feel that it does not lead us anywhere. It is completely vague
35. The learned counsel has then drawn my attention to Ex. DW1/28, a leaf from the diary which was maintained by Shri Gyan Chand Jain. The said document is also of no avail as it does not render any assistance in arriving at any conclusion with regard to the pleas and disputes between the parties.
36. It is a well recognised principle of Civil Jurisprudence that the burden to prove a ‘benami’ transaction is on the party which puts forward the said plea. Thus the onus was on the defendants to show and prove that the impugned sale deed was in fact ‘benami’ in the name of the plaintiff and the same was executed for the benefit of defendant No.1. In order to find out as to whether a particular transaction is ‘benami’ transaction the Court will have to ascertain as to what was the source of money. The other point worth consideration would be as to in whose possession the property remained after the impugned sale. Then the Court has to find out the motive as to why the property was purchased in the name of a particular person. The other point which would be worth noting would be as to in whose custody the documents with regard to the sale are. I am tempted here to cite a few lines from the observations of the Hon’ble Supreme Court as reported in
Jayadayal Poddar (deceased) through LRs and another Vs. Mst. Bibi Hazra and others, . It was observed ” It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of ‘benami’ or establish circumstances unerringly or reasonably raising an inference of that fact. The essence of a ‘benami’ is in the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia the courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.”
37. If we apply the above laid-down tests to the facts in hand we find that the defendants have not placed anything on record to show and prove that the disputed property in fact is their property and the plaintiff is only a name giver. She has got nothing to do with the disputed property. The title deed with regard to the disputed property and other relevant documents were filed by the plaintiff. The house tax is being paid by the plaintiff. Maintenance charges for the maintenance and upkeep of the property in dispute are also being borne by the plaintiff. No reason whatsoever was given as to why the disputed property was purchased in the name of the plaintiff. Learned counsel for the defendants has contended that the disputed property was purchased in the name of the plaintiff as defendant No.1 was a government employee. To my mind, this is no reason. There is no bar in the way of a government employee to acquire a property. In any case, no such bar was shown to this Court. Furthermore this is not the case of the defendants that there was none in the family of defendant No.1 in whose name the property could have been purchased. Defendant No.1 was having children in whose names the property could have been purchased. DW1 Shri Sushil Kumar Jain attained majority in the year 1964 as admitted by him during the course of his cross-examination. Thus the property could have been purchased in his name. Yet no such step was taken. This again goes to show that the plaintiff is the owner of the disputed property.
38. In the above circumstances I am of the view that the defendants are in possession of the disputed property as licensees of the plaintiff. Further, the defendants have failed to prove that they are the owners of the disputed property. Issues Nos. 2 and 5 are decided accordingly against the defendants.
39. Defendant No.1 has not made any permanent construction in the disputed property. Issue No.9 is therefore decided against the defendants.
40. The plaintiff is held to be the sole proprietor of M/s Delhi Optical & Chemical Works and the said business was set up by her from her own resources. The plot in question was purchased by the plaintiff and she raised construction thereon. Issue Nos. 9(A), 9(B) & 9(C) are decided accordingly. In view of the above, the plaintiff is entitled to recover possession over the disputed property in occupation of the defendants. Issue No.8 is decided accordingly in favour of the plaintiff.
Issue No. 3 :
41. The plaintiff has claimed damages @ Rs.2,100/- per month. PW1 Shri Gyan Chand Jain has deposed to the fact that the on-going market rent of the similarly situated properties is more than Rs.2,100/- per mensem. Hence, the plaintiff is entitled to recover damages at the said rate. To the same effect is the statement of PW2 Smt. Rama Kanta Jain. There is no cross-examination of PW1 on this point. Hence, the said rate of rent would be deemed to be correct.
42. Learned counsel for the plaintiff has contended that the current rate of rent of the similarly situated properties would be nearabout Rs.15,000/- per month. He thus wants this Court to grant damages @ Rs.10,000/- per month. I am sorry I am unable to agree with the contention of the learned counsel. There is absolutely no evidence to this effect. Neither PW1 Shri Gyan Chand Jain, nor PW2 Smt. Rama Kanta Jain has stated any such thing. The learned counsel has, however, argued that the Court is competent to award damages at the said rate suo motu by taking judicial notice of the
prevailing rate of rent in the city. He has in this connection cited a judgment of a Division Bench of this Court as reported in S. Kumar Vs. G.R. Kathpalia,1999 Rajdhani Law Reporter 114. I have myself very carefully gone through the said judgment. The damages @ Rs.25,000/- according to the facts of the said case were granted on the basis of the evidence which was led before the trial Court. This fact is quite clear from the observations made in para 4 of the said judgment. The learned Judges on the basis of the evidence which was before them and after hearing the learned counsel for the parties came to the conclusion that Rs.25,000/- per month was just and fair amount by way of damages.
43. In view of the above, the plaintiff cannot claim damages at a rate higher than Rs.2,100/- per month. Issue No.3 is decided accordingly.
Relief
44. The suit for recovery of possession over part of the property bearing No.49/7, Punjabi Bagh, New Delhi and shown by red colour in the site plan attached to the plaint and for recovery of Rs.1,400/- by way of damages is decreed with costs.
45. The plaintiff shall be entitled to pendente lite and future damages @ Rs.2,100/- per month on payment of requisite court fee. The defendants are hereby directed to hand over the vacant possession over the disputed property to the plaintiff.
