In the High Court of Punjab & Haryana at Chandigarh R.S.A. No.1430 of 2007 Date of decision: July 21, 2008 Iqbal Singh ... Appellant versus Amrik Singh ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.C. Sibal, Sr. Advocate with Mr. Mr. B.S. Rana, Advocate for the appellant. Mr. Arun Palli, Sr. Advocate with Mr. Jai Bhagwan, Advocate for the respondent. A.N. Jindal, J (Oral) The plaintiff has filed the suit for mandatory injunction directing the defendant to hand over the vacant possession of the suit property marked as ABCD & EFGH situated at Shahbad Markanda as fully detailed in the site plan appended to the plaint and restraining the defendant from interfering in the other portion of the house in possession of the plaintiff and to demolish or damage any portion of the property and also for payment of Rs.1000/- per month from the date of filing of the suit till vacant possession is handed over to him. The suit was decreed with the direction that the defendant/appellant (herein refer as 'the defendant') would surrender possession of the house and pay mesne profit @ Rs.500/- per month. The defendant while denying the allegations pleaded that he is the owner in possession to the extent of ½ share along with common passage, Sehan and store. He is not the licencee but has become the owner of the house which was purchased by the father of the parties in the name of the plaintiff and put both of them in half share each with common passage, store and sehan after raising construction over it. He had also executed Will vide which he had defined their shares. It was also asserted in the alternative that since he has become the owner of the house in question by way of adverse possession, therefore, the question of licencee does not arise. The present suit has been filed with an intention to grab the plot and R.S.A. No.1430 of 2007 -2- booth situated in the market. The replication was also filed by the plaintiff. The suit of the plaintiff has been decreed in the aforesaid terms, whereas, the appeal filed by the defendant was dismissed vide judgment dated 11.4.2007. The following substantial question of law arises in this appeal. “Whether Assa Singh executed the Will of the property in question, on the basis of which the defendant has become the owner of the property?” Admittedly, the sale deed dated 30.3.1973 with regard to the suit property is in the name of the respondent Amrik Singh. The case set up by the defendant is that the house was purchased by Assa Singh in the name of Amrik Singh as Benami, therefore, actually Assa Singh was the owner and he had bestowed the property upon them in equal shares. Having gone through the provisions of Benami Transactions (Prohibition) Act, 1988, it could well be observed that the plea of Benami is not available to the appellant in this case. Further he did not challenge the sale deed for the last 19 years which has continuously been acted upon in the House Tax Assessment Register Ex.P2, Ex.P3 and Ex.P4 for the years 1985-86, 1988-89 and 1993-94. It may further be observed that it was only the plaintiff who was paying the house tax and the water bills. Documents Ex.P14 to Ex.P24 are the evidence in this regard. Thus, the defendant cannot claim himself to be the owner on the basis of the Will projected by him. Assa Singh, being not the owner, could execute the sale deed regarding the property which was in the name of Amrik Singh respondent. The trial court has rightly declined the plea with regard to adverse possession set up by the plaintiff. The plea of adverse possession as set up by the appellant has been discarded by both the courts below. Consequently, finding no merit in the appeal, the same is hereby dismissed. July 21, 2008 (A.N. Jindal) deepak Judge