: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.585 OF 2003 SECOND APPEAL NO.585 OF 2003 SECOND APPEAL NO.585 OF 2003 WITH WITH WITH CIVIL APPLICATION NO.863 OF 2003 CIVIL APPLICATION NO.863 OF 2003 CIVIL APPLICATION NO.863 OF 2003 Dilip Mahadeo Shembade ...Appellant V/s. Sunita Dilip Shembade & Ors. ...Respondents Mr.S.S. Patwardhan, Advocate, for the Appellant. Mr.R.S. Kate, Advocate, for Respondent Nos.2 to 5. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 16TH FEBRUARY, 2008. DATE : 16TH FEBRUARY, 2008. DATE : 16TH FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Heard Advocates appearing for the parties. 2. The Appeal is by the unsuccessful plaintiffs. The 1st respondent (1st defendant) is the appellant’s wife. The appellant’s father executed a sale deed in respect of his 1/3rd share in the property in favour of the 1st respondent. The sale deed was executed on 8th July, 1972. There is a further transfer of the suit property made by the 1st respondent in favour of the 2nd to 5th respondents. The suit was filed for declaration that the sale transaction effected on 8th July, 1992 was a benami transaction and the appellant was the true owner of the property as he had purchased : 2 : the property by paying consideration. The appellant also prayed for perpetual injunction restraining the 2nd to 5th respondents from interfering with possession of the appellant over the suit property. 3. The defence of the 1st respondent was that the price of the suit land in the sum of Rs.53,000/- was paid by her father, uncle and grandmother. It is her case that she became absolute owner of the suit property and therefore she was entitled to transfer the same in favour of the 2nd to 4th respondents. The case of the 2nd to 4th respondents was that they have purchased the property for consideration of Rs.57,000/- by registered sale deed dated 24th May, 1993. 4. The Trial Court accepted the case made out by the appellant-plaintiff and passed a decree of declaration and injunction. In the Appeal preferred by the respondents herein, the Appellate Court held that the appellant has failed to establish that he had purchased the suit property benami in the name of the 1st respondent-wife. The Appellate Court has set aside the decree passed by the Trial Court. 5. The first submission of the learned Advocate : 3 : for the appellant is that the appellant has proved his case that the entire consideration for acquiring the suit property was paid by him. He submitted that the Trial Court has recorded a clear finding of fact to that effect. He submitted that in any event what was purchased in the name of the 1st respondent-wife was the 1/3rd share of her father-in-law and even assuming that the 1st respondent could have transferred the said share, the 2nd to 4th respondents who were admittedly strangers to the family could not have entered the property and therefore the Appellate Court could not have set aside the decree of perpetual injunction passed by the Trial Court. He submitted that the Appellate Court has found that the said purchasers are not bonafide purchasers and in any event even assuming that the acquisition by the said purchasers is valid, they will have to file a suit for general partition. 6. I have carefully considered the submissions. The Appellate Court has scanned the entire evidence and has come to the conclusion that the appellant has failed to make good his case of benami acquisition. The Appellate Court found that the registered sale deed executed in favour of the 1st respondent shows that the consideration of Rs.53,000/- was paid to the : 4 : vendor. The Appellate Court found that the case made out by the appellant was that the price was fixed at Rs.20,000/- and from the point of view of valuation for stamp duty, the price of the suit land was shown as Rs.53,000/-. The Appellate Court accepted the case made out by the 1st respondent and in particular the evidence of the 1st respondent’s uncle. One more reason for disbelieving the case made out by the appellant was that the original sale deed was not in his custody but it was in the custody of the 1st respondent. There is a clear finding of fact based on appreciation of oral and documentary evidence on record that the appellant has failed to prove that he purchased the property in the name of his wife. It is very difficult to interfere with the said finding of fact. 7. The prayer for injunction in the suit is a consequential prayer and the substantive prayer is for declaration. It is not a prayer made in the alternative to the relief of declaration. 8. In any event relief of perpetual injunction is always discretionary and equitable. It is true that the Appellate Court found that the 1st respondent has acquired 1/3rd undivided share of her father in law : 5 : and that the 2nd to 4th respondents have failed to prove that they are the bonafide purchasers. 9. Once the appellant comes to the Court with the case that though the acquisition of the property is in the name of his wife i.e. 1st respondent, he is the real owner of the property and once he fails to establish the said case, the Court was always justified in declining to grant equitable and discretionary relief of perpetual injunction. 10. No fault can be found with the impugned Judgment and Decree. There is no substantial question of law. The Second Appeal is accordingly dismissed. 11. In view of dismissal of the Second Appeal, Civil Application No.863 of 2003 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]