TMI Blog2012 (5) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... iled under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 2.4.2011 dismissing the suit and/or rejecting the plaint by holding that the same is barred by Benami Transactions (Prohibition) Act, 1988 and also by limitation. 2. The disputes in the present case center around the ownership of a flat No. C-1/F, DDA Flats, Munirika, Delhi. The appellant/plaintiff-Sh. J.M. Kohli claims to be the owner of the suit property. The suit property however from the very beginning stands in the name of defendant No.1/respondent No.1/Madan Mohan Sahni, inasmuch as, the flat was allotted to him by the Delhi Development Authority (DDA) and the entire documentation qua the title of the property also stands in the name of respondent No.1. The title documents in name of respondent No.1/defendant No.1 exist from 1981 till date. 3. The facts of the case are that the appellant/plaintiff filed the subject suit for declaration, possession and mandatory injunction against respondent No.1/defendant No.1-Sh. Madan Mohan Sahni (brother-in-law), defendant No.2-Smt. Vimla Kanta (ex-wife) and defendant No.3-Smt. Renu (daughter of the plaintiff). The ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when property is purchased in the name of wife or unmarried daughter, it was for the benefit of the wife or the daughter, however, it is a rebuttable presumption by production of evidence or other material to prove that the property was purchased by the appellant in the benami of the respondent for his own benefit. However, the defendant no. 1 is neither wife not daughter of plaintiff but brother of defendant no. 2. Therefore, in terms of section 4 of the Act 1988, plaintiff‟s suit or claim is barred to enforce any right in respect of suit flat, which originally registered and allotted in the name of defendant no. 1. 4.3 Now the issue of limitation is taken. Paragraph 42 of the plaint is compilation of points of time, referred in other parts of plaint that cause of action had arisen from January 1972 onward till notice was sent on 08.08.1988 and lastly on the point when conveyance deed was executed/registered in favour of defendant no. 1. Paragraph 24 of previous suit no. 157/84, also reflects the cause of action, from the point of time of 28.09.1983, vis a vis that defendant no. 2 in her written statement in Divorce Petition in the court of the then Additional Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant becomes adverse to the plaintiff or the date of dispossession, therefore, the suit filed in May 2010 is beyond the period of 12 year, if it is to be computed from 24.12.1979. In fact the suit for possession is alike consequential relief to the declaration, but in view of above it is also barred by time. In Hardesh Ores (P) Ltd. Vs. Hede And Company 2007 5 SCC 614 it was held that the term barred by law, in order VII rule 11 (d) of CPC, contemplates that it includes the law of limitation also. 4.4 It is settled law that while considering application under order VII rule 11 CPC, the statement of facts given in the plaint coupled with document are to be considered as true and it does not require to look into the defence taken or to be taken by the defendants, whereas defendants are yet to file their written statement but defendant no. 1 has filed the first application. (underlining added) 6. The consequences of the Benami Transactions (Prohibition) Act, 1988 were harsh as they brought to an end the ownership rights of an actual owner against the benami owner. Before passing of the Benami Act, a de jure owner could also file a suit against de facto owner and thereby cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, Section 4(3)(b) which provides that the property which is held as a trustee or in a fiduciary capacity must be interpreted in the sense that the trustee or a person who is holding the property in a fiduciary capacity has either committed a fraud and got the property title in his name or is in furtherance of law holding property in his name however in the capacity of a trustee or in fiduciary capacity, although the real owner is somebody else. Repealed Sections 81, 82 and 94 of the Indian Trusts Act, 1882 read as under:- 81. Where the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances that the intend to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or his legal representative. 82. Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. Nothing in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas it ought to have been purchased in the name of the principal or the real owner, Supreme Court has, to that limited extent, held that such actions are covered under Section 4(3)(b) of the Benami Act and such transactions are not hit by the Benami Act. 11. If we see the facts of the present case, the only relationship of trust which is alleged has two salient features. The first is of the moneys having been paid by the appellant/plaintiff and therefore the property being actually of the appellant/plaintiff and the defendant No.1 being the trustee, and, the second feature is that the parties understood as per the case in the plaint that defendant No.1 will hold the property in faith/trust for the appellant/plaintiff. In order to appreciate the contents of the plaint in this regard, qua the averments with regard to trust, paras 27 to 29 of the plaint are relevant and the same read as under:- 27. That all the payments of the installments of the value of the suit property was given by the plaintiff out of his self earned income and nothing was paid by the defendant no. 1 and only the name of the defendant no. 1 was in the records of the D.D.A. with respect to the said prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case. 14. It is said that hard cases lay down bad law and therefore sympathy arising from facts cannot be allowed to negate the intention of the legislature in enacting the Benami Act . It is not only the appellant but probably thousands/lakhs of persons like the appellant who have suffered the consequences of enactment of the Benami Act, however, this Court has to act as per the laws as applicable, and considering the facts of this case I have no option but to affirm the finding of the trial Court that the suit was barred by Benami Act. 15. The trial Court, in my opinion, has further rightly held the suit to be barred by limitation. Admittedly, the appellant/plaintiff had claimed title in the suit property by way of a suit filed way back in the year 1984 on the ground that actually the defendant was the benamidar and that the appellant/plaintiff was the real owner. That suit No. 157/1984 was withdrawn on 17.9.1987 and the present suit had been filed after 23 years. In law, the right to sue for possession of an immovable property arises within 12 years of the possession being adverse to the actual owner in terms of Article 65 of the Limitation Act, 1963. Obviously ..... X X X X Extracts X X X X X X X X Extracts X X X X
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