Vijay Kumar vs Dharam Pal & Ors

3. One Dharam Pal, Respondent No.1 herein, filed a suit for possession by claiming that he had purchased two properties situated at Nakodar by two conveyances dated 24th April, 1959 and 12th June, 1959. It is his further case that having raised constructions in the said properties after obtaining sanction from the Municipality and having recorded his name in the House Tax Records as an assessee of the local body, he proceeded to the United Kingdom in 1964 and at the time of leaving, he had handed over possession of the said properties to his father, who was living along with his other son, Mr. Ram Aggarwal. Subsequently, the father of the Respondent No.1 also left for England and died there in 1970. The brother of the Respondent No.1/plaintiff, Mr. Ram Aggarwal, thereafter started a business in the said premises under the name and style of Vijay Agencies and remained in possession thereof as licencees of the Respondent No.1. On being asked to hand over possession of the suit properties by the Respondent No.1, Mr. Ram Aggarwal, 3 refused to do so, which resulted in the filing of the civil suit, after revocation of the licence.

5. Considering the case made out by the respective parties and the evidence led by them, the Trial Court upon holding that the Respondent No.1 was the owner of the suit properties, decreed the suit in favour of the Respondent No.1 by a judgment and decree dated 9th August, 1991. The appeal preferred by the appellants from the said judgment and decree was dismissed by the lower Appellate Court by its judgment dated 5th September, 1997, confirming the reasoning of the trial Court, which gave rise to a second appeal filed before the High Court. Having regard to the fact that both the sale deeds were in the name of the Respondent No.1, but the appellants 5 claimed that the properties had been purchased benami in the name of the Respondent No.1 and the appellants were the real owners thereof, the question of ownership was remanded to the First Appellate Court. Upon reconsideration of the evidence, the First Appellate Court re-affirmed its earlier decision holding the Respondent No.1 to be the owner of the property.

6. The appellants filed a fresh Second Appeal against the order of the First Appellate Court which was again dismissed by the High Court upon holding that in view of the specific bar under Section 4 of the Benami Transactions (Prohibition) Act, 1988, the appellants could not take up the plea of the properties being benami.

7. The present appeal is directed against the judgment of the High Court dismissing the appellants' Second Appeal.

11. In view of the aforesaid finding, the High Court dismissed the Second appeal, which had been filed by the defendants who are the appellants herein.

17. However, on the second question, we are inclined to agree with Mr. Mehta that de hors the question of the applicability of the Benami Transactions 11 (Prohibition) Act, 1988, the Courts below had rightly held that the Respondent No.1 was the owner of the suit properties relying on the documentary and oral evidence adduced by him, including Exhibit PW3/3 executed by the appellants and the Respondent No.1 which was proved by Audhiya Parshad as mentioned in the judgment of the trial Court.

19. The appeal is, therefore, dismissed.

20. There will be no order as to costs.

________________J.

(ALTAMAS KABIR) ________________J.

(CYRIAC JOSEPH) New Delhi Dated: 10.2.2009