RSA No.2027 of 2004 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No.2027 of 2004 (O&M) Date of Decision: December 02,2009 Bela Singh and another ...........Appellants Versus Renu Garg ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.S.D.Sharma, Senior Advocate with Ms.Bindu Goel, Advocate for the appellants Mr.V.K.Jain, Senior Advocate with Mr.Prashat Vashisth, Advocate for the respondent ** Sabina, J. Plaintiff filed a suit for permanent injunction. The said suit of the plaintiff was dismissed by the Civil Judge (Junior Division) Patiala vide judgment and decree dated 7.11.2003. Aggrieved by the same, plaintiff preferred an appeal and the same was allowed and the judgment and decree of the trial Court were set aside by the Additional District Judge, Patiala vide judgment and decree dated 20.3.2004. Hence, the present appeal by the defendants. The case of the parties, as noticed by the learned District Judge, in paras 1 to 4 of its judgment reads as under:- “ 1.A simple suit for permanent injunction with regard to plot measuring 170'x53'-6” comprised in Khewat No.633/1 Kahtauni RSA No.2027 of 2004 (O&M) 2 No.1455/1. Khasra No.1794/729(1-0) situated on Bhadson road, Patiala has been filed by plaintiff Renu Garg (now appellant) seeking the relief of permanent injunction restraining the defendants (now respondents) from interfering in her title and possession over the disputed property, which she has attained as per registered sale deed dated 11.7.1980. The contention of the plaintiff is that after purchasing the plot a boundary wall of 5' has been constructed. She has installed two gates towards northern and southern side and is in peaceful and exclusive possession of the suit property. The defendants were strangers with regard to the title and possession of the suit property and are trying to dispossess the plaintiff. 2. In the written statement defendants Bela Singh etc. raised the plea that he has contributed Rs.10,000/- i.e. half of the sale consideration at the time of the sale deed deed 11.7.1978. The father-in-law of the plaintiff namely Brij Lal was on dealing terms with the defendant No.1 for the last 20 years and there was understanding between the father-in-law of the plaintiff and the defendant Bela Singh, to this effect that half of the plot shall be owned by the plaintiff and the remaining half by defendant Bela Singh. He has claimed the possession over half of the plot on right hand side, where he has raised boundary wall and constructed on room beside installing hand pump. The possession of the defendant is over half of the plot and is well known to the persons of the locality and the plaintiff has concealed the material facts in this regard. Sale deed dated 11.7.1988 was executed by RSA No.2027 of 2004 (O&M) 3 Rajinder Kumar and he received half of the sale consideration from Bela Singh defendant and handed over the possession of half of the plot to the defendant. The plaintiff entered into a compromise to sell the plot to Rajinder Singh son of Nand Singh etc. vide agreement executed in the month of April 2001 and with the police help, she tried to take the possession of the plot of the defendants. The matter was enquired into by the police. 3. The defendant has also filed a counter-claim seeking declaration to the effect that he is owner in possession of half of the plot in dispute with the plea that half of the sale consideration was paid by him at the time of the execution of the sale deed dated 11.7.1988. 4.The plaintiff re-asserted her case in the replication and contested and controverted the averments made in the written statement. It was denied that any amount was contributed by the defendant out of the sale consideration at the time of execution of sale deed. Even otherwise under the provisions of Benami Transactions (Prohibition) Act 1988 (hereinafter called the Act) the defendant is not entitled to take any such plea regarding the room over the plot. It has been averred that the same has been recently constructed by the plaintiff and the entire construction over the plot belongs to her. On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether the plaintiff is entitled to permanent injunction prayed for?OPP RSA No.2027 of 2004 (O&M) 4 2. Whether the counter claim entitled to declaration as prayed for?OPD 3. Relief” After hearing the learned counsel for the parties, I am of the opinion that this appeal is devoid of any merit. Plaintiff had filed a suit for permanent injunction that the defendants be restrained from interfering in her peaceful possession. Plaintiff had placed reliance on sale deed dated 11.7.1988 by Rajinder Kumar in her favour for a consideration of Rs.20,000/-. The case of the defendants was that, in fact, the property in dispute had been purchased by the plaintiff and defendants by investing Rs.10,000/- each. The defendants had half share in the suit property. Although the sale deed was only executed in favour of the plaintiff, defendant-Bela Singh was also, thus, owner of the half portion of the suit land. The defendants, in order to substantiate their case examined vendor Rajinder Singh who deposed that Rs.10,000/- had been paid to him by defendant Bela Singh and Rs.10,000/- had been paid to him by Brij Lal, father in law of Renu Garg and with their consent, he had executed the sale deed in favour of Renu Garg on 11.7.1988. Bela Singh was the owner in possession of the half portion of the plot lying in the sale deed. Learned counsel for the petitioner has placed reliance on R.Rajagopal Reddy (dead) by Lrs. & Ors vs. Padmini Chandrasekharan (dead) by Lrs. JT 1995(2) SC 667 wherein it has been held as under:- “The real problem centres round the effect of Section 4(1) on pending proceedings wherein claim to any property on account of RSA No.2027 of 2004 (O&M) 5 it being held benami by other side is on the anvil and such proceeding had not been finally disposed of by the time Section 4 (1) came into operation namely, on 19th May, 1988. Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings,howsoever, earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even upto this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus, it was enacted to efface the then existing rights of the real owners of properties held by others benami. Such an act was not given any retrospective effect by the legislature. Even when we come to Section 4, it is easy to visualize that sub section (1) of Section 4 states that 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 shall lie by or on behalf of a person claiming to be real owner of such property. As per Section 4(1) no such suit shall henceforth lie to recover the possession of the property held benami by the defendant. Plaintiff's right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19th May, 1988 shall not lie. RSA No.2027 of 2004 (O&M) 6 The legislature in its wisdom has nowhere provided in Section 4 (1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words”no such claim, suit or action shall lie” meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portal of any Court for seeking such a relief after coming into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, the word `lie' has been defined in connection with suits and proceedings. At page 848 of the Dictionary while dealing with topic No.9 under the definition of term `lie' it is stated as under:- “For an action, claim appeal etc. to subsist; be maintainable or admissible”. The word `lie' in connection with the suit, claim or action is not defined by the Act. If we go by the aforesaid dictionary meaning it would mean that such, suit, lcim or action to get any property declared benami will not be admitted on behalf of such plaintiff or applicant against the concerned defendant in whose name the property is held on and from the date on which this prohibition against entertaining of such suits comes into force. With respect, the view taken by that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the Section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear RSA No.2027 of 2004 (O&M) 7 language of Section 4(1). It has to be visualized that the legilsature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the Section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is,however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated,even if such transaction had been entered into prior to the coming into operation of Section 4(1), and hence-after Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the Section may be retrospective. To highlight this aspect we may take an illustration. If a benami transaction had taken place in 1980 and a suit is filed in June 1988 by the plaintiff claiming that he is the real owner of the property and defendant is merely a benamidar and the consideration has flown from him then such a suit would not lie on account of the provisions of Section 4(1). Bar against filing, entertaining and admission of such suits would have become operative by June, 1988 and to that extent Section 4(1) would take in its sweep even past benami transactions which were sought to be litigated upon after coming into force of the prohibitory provision of Section 4(1); but that is the only effect to the RSA No.2027 of 2004 (O&M) 8 retrospectively of Section 4(1) and nothing more than that. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow” The question that requires for consideration is as to whether Renu Garg had purchased the suit property on her own behalf and on behalf of Bela Singh. Section 4 of the Benami Transactions (Prohibition) Act 1988 (hereinafter called the Act) 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 defence 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 RSA No.2027 of 2004 (O&M) 9 trustee or other person standing in the 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.” As per Section 1 of the Act the provisions of Section 3, 5 and 8 shall came into force at once i.e. on 5.9.1988 and the remaining provisions of the said Act shall be deemed to have come into force on 19.5.1988. Thus, Section 4 of the Act came into effect on 19.5.1988, whereas. the sale deed in the present case was executed on 11.7.1988 after the provisions of Section 4 of the Act came into effect. In these circumstances, the defendants could not claim any right in the suit property on the basis that it was benami. Learned Additional District Judge had, thus, rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge December 02, 2009 arya