R. S. A. No. 3317 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3317 of 2010 Date of Decision : February 24, 2011 Smt. Joginder Kaur .... Appellant Vs. Smt. Rajinder Kaur and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. K. S. Cheema, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Joginder Kaur, having failed in both the courts below, has filed the instant second appeal. Azad Singh – defendant no.1 (since deceased and represented by respondents no.1 to 3 as his legal representatives) was real brother of the plaintiff-appellant. Plaintiff's case is that she applied for four marlas' plot and paid Rs.850/- to defendant no.3 (respondent no.5 – Punjab Urban Development Authority – PUDA). However, she made the said application in the name of her brother – defendant no.1. She was not successful in draw of lots. R. S. A. No. 3317 of 2010 2 Subsequently, draw was to be held for more plots. The plaintiff then applied for plot of one kanal and deposited further amount of Rs.59,150/- (to make total amount of Rs.60,000/-), as claimed by defendant no.4/ respondent no.6 – Estate Officer of PUDA. Plaintiff further paid balance amount to defendant no.1 to be deposited with defendant no.4. Suit plot was allotted in the name of defendant no.1, but plaintiff is the real owner of the said plot. However, defendant no.2 – Meharban Singh Gill (respondent no.4), in collusion with defendant no.1, got the suit plot transferred in favour of defendant no.2 without plaintiff's consent. Defendant no.1 had no right to sell the suit plot to defendant no.2. Accordingly, the plaintiff sought declaration that she is exclusive and real owner of the suit plot and transfer made by defendant no.3 – PUDA in its records in favour of defendant no.2, at the instance of defendant no.1, is illegal, null and void etc. Mandatory injunction directing defendant no.3 to rectify the record in favour of the plaintiff and directing defendant no.2 to deliver possession of the plot to the plaintiff was also sought along with permanent injunction restraining defendants no.2 and 3 from alienating or transferring the plot to any person and from raising any construction therein. Defendants no.1 and 2 filed separate written statements and controverted the claim of the plaintiff. Defendant no.1 alleged that he had applied for the plot and he deposited the entire amount with defendants no.3 and 4 and he, being owner of the plot, rightly sold the same to defendant R. S. A. No. 3317 of 2010 3 no.2. Defendant no.2 also pleaded similar version. Defendants no.3 and 4 also controverted the claim of the plaintiff. Learned Civil Judge (Junior Division), Jalandhar, vide judgment and decree dated 29.11.2007, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Jalandhar, vide judgment and decree dated 21.04.2010. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff's case is hit by the Benami Transactions (Prohibition) Act, 1988 (in short – the Act). The plaintiff's case is that she got the suit plot allotted in the name of her brother – defendant no.1. Thus, the whole case of the plaintiff is based on benami transaction. Consequently, the suit is hit by Section 4 (1) of the Act. Learned counsel for the appellant, however, contended that courts below have found that plaintiff contributed Rs.60,000/- towards purchase price of the plot, whereas the remaining amount was contributed by defendant no.1, in whose name the plot was allotted and since defendant no.1 also contributed towards purchase price of the plot, it is not a benami transaction. Reliance in support of this contention has been placed on judgment of Andhra Pradesh High Court in the case of Agina Chandramouli vs. Rajoori Ramalingam reported as 2010 (2) Civil Court Cases 549. The contention cannot be accepted as the R. S. A. No. 3317 of 2010 4 aforesaid judgment is distinguishable on facts. In that case, the plaintiff himself pleaded that he and defendant were joint owners of the suit property to the extent of half share each. It was in these circumstances that it was held in that case that since defendant, in whose name the sale deed stood, had also contributed to the sale price, it was not benami transaction. In that case, the plaintiff himself alleged that defendant no.1 also had half share in the suit property. In the instant case, however, the plaintiff took the stand that she is exclusive and real owner of the entire suit plot. The use of the expression `real owner' by the plaintiff herself reveals that she herself pleaded benami transaction of the suit plot in the name of her brother. It is clearly borne out from the pleading of the plaintiff herself. Consequently, the suit is barred by Section 4 of the Act. In addition to the aforesaid, even on merits, the plaintiff has been non-suited and rightly so. Merely because she contributed Rs.60,000/- towards purchase price of the plot, it cannot be said that she is real owner of the suit plot. The suit plot was applied for in the name of defendant no.1 and was also allotted in the name of defendant no.1. Balance amount of the suit plot was also deposited by defendant no.1. Consequently, merely on the basis of initial payment of Rs.60,000/- by the plaintiff, it cannot be said that she has any right, title or interest in the suit plot. On the contrary, at best, she could seek recovery of the said amount from defendant no.1, but she did not claim any such relief. Defendant no.1 was none else, but real R. S. A. No. 3317 of 2010 5 brother of plaintiff. Consequently, in view of said relationship, the plaintiff might have helped defendant no.1 in applying for the plot by contributing the said amount of Rs.60,000/-, but it would not entitle the plaintiff to any right, title or interest in the suit plot, which was applied for and allotted in the name of defendant no.1. Learned counsel for the appellant also referred to alleged compromise dated 05.02.1995 (Ex.PW-4/1), whereby it was stipulated that premium or profit of the suit plot shall be shared equally by plaintiff and defendant no.1. However, this contention is completely beyond pleadings and cannot be accepted. The plaintiff also did not seek any such relief of sharing of the premium of the suit plot. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below against the plaintiff-appellant is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. It may also be added that plaintiff filed suit for declaration and mandatory injunction, but did not seek relief of possession, for which ad valorem court fee had to be paid. The plaintiff couched the prayer in the form of mandatory injunction to seek relief of possession without paying ad valorem court fee required to be paid for relief of possession. Consequently, suit for declaration and mandatory injunction, without claiming relief of possession R. S. A. No. 3317 of 2010 6 of suit property, cannot succeed. On the contrary, defendant no.2 has raised huge construction in the suit plot at his cost. Accordingly, the appeal being devoid of any merit, is dismissed in limine. February 24, 2011 ( L. N. MITTAL ) monika JUDGE