1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR JUDGMENT Tikam Chand Vs. Shanker Das (S.B. Civil First Appeal No.292/2010) S.B. Civil First Appeal under Section 96 read with Order 41 Rule 1 CPC. Date of Order :- August 06, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Suresh Goyal, for the appellant. BY THE COURT: Property is the cause of many litigation. This case is a paradigm example of a litigation between the step- father and the step-son over a plot. The appellant is aggrieved by the judgment and degree dated 10.05.2010, passed by the Additional District and Sessions Judge (Fast Track) No.2, Jaipur City Jaipur, whereby the learned Judge has decreed the suit in favour of the respondent-plaintiff, Shanker Das, for declaration and possession of the said plot. Briefly the facts of the case are that Shanker Dar, respondent-plaintiff, had filed a civil suit for possession and declaration against the appellant. In the 2 plaint, he had pleaded that he is married to Smt. Vimla through the Nata tradition. Vimla was earlier married to Heera Lal from whom she had a son, Tikam Chand (the appellant before this Court). Vimla's husband had expired in 1977. At that time, Tikam Chand was four or five years old child. After the death of her first husband, she left the child with his maternal grand-parents. Since 1977, she had no relationship with the child. According to the respondent- plaintiff, plot No.579 situated in Katchi Basti Katewa Nagar, Jaipur was initially bought by him in the name of his wife Smt. Vimla on 06.05.1999. However, subsequently, on 29.11.2001, the said plot was transferred in his name. He further claimed that he had built six rooms on the said plot. However, as he is an employee in the Railways, he was transferred to Bhatinda, Punjab. Therefore, he had left the said house under the supervision of his sister-in-law, Smt. Kamla. But Tikam Chand, wanting to illegally grab the said house, filed a frivolous civil suit against his own mother Smt. Vimla Devi for permanent injunction. In the said suit, he prayed that Smt. Vimla Devi should be restrained from transferring the house to a third party. In the grab of the said suit, Tikam Chand had illegally occupied the house. He further claimed that on 22.03.2009, when he came back from Punjab, Tikam Chand did not permit him to enter the house or the plot. Therefore, he has filed the present suit 3 for possession and for declaration that Tikam Chand be declared as an encroacher in his house. On the other hand, Tikam Chand filed his written statement wherein he had claimed that through sweat and blood, as a labourer, he had earned enough money to buy the plot, the property in dispute. Due to love and affection for his mother, he had bought the plot in her name in 1999. Moreover, he had constructed on the said plot. He further claimed that there was a family settlement deed between him and his mother which is with his mother. He denied the fact that the plaintiff was ever in possession of the plot. According to him, the possession of the plot was always with him. Lastly, he claimed that Smt. Vimla Devi's behavior to him and to his sister was not good. Since there was a possibility that she may transfer the house either to the plaintiff's children, or to a third party, he had filed a civil suit for injunction against her, which is still pending. On the basis of the pleadings of the parties, the learned trial court framed six issues, including the issue of relief. In order to prove his case, the respondent-plaintiff examined himself as a witness, but did not submit any documentary evidence. Similarly, the appellant examined himself and his wife, Smt. Pinki Devi (DW-2) as witnesses, 4 but did not submit any documentary evidence. After going through the oral and documentary evidence, vide judgment and decree dated 10.05.2010, the suit was decreed in favour of the respondent-plaintiff. Hence, this first appeal before this Court. Mr. Suresh Goyal, the learned counsel for the appellant has raised the following contentions before this Court : firstly, the suit should have been dismissed on the ground of delay and latches. Secondly, it was incumbent on the respondent-plaintiff to prove the ownership of the plot. However, the respondent-plaintiff never produced the alleged Patta issued in his favour by the Housing Society. Therefore, in the absence of the ownership of the plot, he could not be granted the possession of the plot. Thirdly, the appellant's possession on the plot was admitted by the respondent-plaintiff. Therefore, merely because he claimed that the Patta is in his name, it would not make him the actual owner of the plot. Lastly, the respondent-plaintiff has not approached the court with clean hands as he has not revealed the fact that the plot was originally in the name of Smt. Vimla Devi. Instead, he had pleaded that he is the owner of the plot. Thus, the suit should have been dismissed on this ground alone. 5 Heard the learned counsel for the appellant and perused the impugned order. The contentions raised by the learned counsel for the appellant are highly misplaced for the following reasons : firstly, according to the respondent-plaintiff, he came to know about the illegal occupation of the house and the plot on 22nd March, 2009 when he came back from Bhatinda, Punjab where he was posted. Immediately thereafter he filed the civil suit. Therefore, the suit is not hit by delay and latches. Hence, the first contention raised by the learned counsel is unacceptable. Secondly, the respondent-plaintiff had filed a suit for injunction, possession and declaration. In a suit for injunction, there is no need to prove the ownership [ Ref. to Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Ors. [(2008) 4 SCC 594] ]. Moreover, both the appellant and his wife, Smt. Pinki Devi (DW-2) have admitted in their testimonies that originally the plot was bought in the name of Smt. Vimla. However, subsequently in 2001, the house and the plot were transferred in the name of respondent-plaintiff. Once it is admitted by the appellant-defendant that the house and the plot were 6 transferred in the name of the respondent-plaintiff, there is no need for the respondent-plaintiff to establish his ownership. Afterall, the appellant-defendant himself has admitted that the respondent-plaintiff is the owner of the plot and the house. Furthermore, the appellant has also admitted in his cross-examination that despite knowing the fact that the Patta was transferred in the name of the respondent-plaintiff, he has not filed any suit for cancellation of the said Patta. Therefore, even impliedly he has admitted the fact that the respondent-plaintiff is the owner of the said plot. Hence, the second contention raised by the learned counsel is without any merit. Thirdly, the appellant has an extremely weak case on his side. For, according to him, he had bought the plot after saving money from his wages as a labourer. Admittedly, the appellant's father, Heera Lal, had died in 1977. In 1977, the appellant was merely five years old child. According to the appellant, he was thirty-three years old on the date his testimony was recorded. According to him, he had started working twenty-two years ago. Thus, according to him, he had started working as a labourer at the age of eleven. It is rather difficult for a child to earn sufficient money to be able to buy a plot. 7 The stand taken by the appellant that he had bought the plot in his mother's name is also rather unbelievable. For, admittedly, the appellant was with his maternal grand-parents ever since the age of five in the year 1977. According to the parties, ever since 1977, Smt. Vimla Devi did not look after her son, the appellant. Even according to the documentary evidence, the appellant has shown his maternal grand-father as his father in the Ration Card. Lastly, in his cross-examination, the appellant has admitted the fact that the he has no documents to show that he is either owner, or is in possession of the plot in dispute. In fact, all his documents, i.e. his Ration Card, his Voter ID, and his other I.D., it is the address of his grand- parents which is given. For a child who is looked after by his grand-parents and neglected by his mother, it is very unlikely for him to buy a plot, that too at the young age of eleven, in the name of his mother. As far as last contention is concerned, the respondent-plaintiff, in his testimony, has clearly admitted that originally the plot was bought in the name of Smt. Vimla Devi. Both the parties are ad idem that subsequently in the year 2001, the said plot was transferred in the name of respondent-plaintiff, Shanker Lal. Thus, it cannot be said that the respondent-plaintiff had hidden any fact from the 8 Court. Therefore, the last contention raised by the learned counsel for the appellant is without any basis. A bare perusal of the impugned judgment clearly reveals that the learned trial court has threadbare discussed the evidence available on record. According to the learned Judge, since the appellant-defendant had admitted in his cross-examination that Patta was in the name of the respondent-plaintiff, it was obvious that the respondent-plaintiff was the owner of the plot. Moreover, Smt. Pinki Devi (DW-2) had admitted that the respondent- plaintiff and Smt. Vimla Devi would come and stay in the said plot whenever they would come back from Bhatinda, Punjab. Therefore, the possession of the respondent- plaintiff was equally admitted. Moreover, the learned trial court has rightly concluded that in case the stand of the appellant-defendant were to be accepted that he had bought the house in the name of his mother, the said transaction would be hit by the Benami Act. Hence, this Court does not find any illegality or perversity in the impugned judgment Therefore, this appeal is devoid of any merit. It is, hereby, dismissed. (R.S. CHAUHAN) J. Manoj solanki