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2020 (9) TMI 719 - HC - Benami PropertyBenami transaction - Burden to prove the question of possession - suit for declaration and injunction - Possession of the original title deeds - suit property originally belonged to the plaintiff's husband one Durairaj, who was the Zamindar of Pappanadu Village. He has settled the property in the name of the plaintiff on 13.11.1959 and she was put in possession of the property. The first defendant was very closely associated with the husband of the plaintiff. He was trusted by the plaintiff's husband Durairaj.In the year 1972, during the month of September, at the instructions of her husband, she has executed a nominal sale deed dated 19.09.1972 in favour of the first defendant - as contented said sale deed was not acted upon and it is only sham and nominal HELD THAT:- As prior to the sale, there was an agreement of sale between the plaintiff and the first defendant. When the recitals clearly show that there was an agreement between the parties with regard to the sale of property, the parties cannot go beyond the terms of the contract, which was reduced and registered as per law. Once transaction is entered between the parties, heavy burden lies on the party to show that the transaction is sham and nominal. Apex Court in the judgment in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo [2009 (3) TMI 997 - SUPREME COURT] has held that the registered sale deed carries presumption that the transaction was a genuine one and if the execution of sale deed is proved, onus lies on the party to prove that the sale deed was not executed and it was a sham and nominal. Except contending that before the sale by the first defendant in favour of the second and third defendants, the plaintiff perfected title by adverse possession in Paragraph No. 8(A) of the plaint, there is no pleading as to when possession has become hostile, what was the nature of possession, whether possession was hostile to the first defendant and continuous adverse to the knowledge of the first defendant. In the absence of any pleadings and evidence, the finding of the Courts below that the plaintiff perfected title by adverse possession also cannot be countenanced, when the possession itself has not been properly established. Whereas, the Courts below wrongly shifted the burden on the defendants to prove the question of possession. The documents of the plaintiff, namely, Exs. A.20 and A.21-certified copies of the telegrams show that the defendants, in fact, are in possession and making an attempt to change the service connection. To contend that only the plaintiff was in possession and put up construction, no material whatsoever filed on record to show that the plan was approved to put up construction. Therefore, merely on the basis of the receipts, part of the receipts obtained after the suit, one cannot establish adverse possession. The Courts below have, in fact, not analysed the facts properly and shifted the burden wrongly on the defendants and simply carried away by the after suit documents without deciding the plea of benami transaction. No declaration sought to cancel the documents either Ex. A.1 or Exs. B.1 and B.2, within the period of limitation as per Article 59 of the Limitation Act, 1963. Such being the position, the plaintiff cannot succeed in the suit for declaration and injunction. Accordingly, all the substantial questions of law are answered in favour of the appellants.
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