TMI Blog2009 (9) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was allowed by the Additional District Judge, Gurdaspur vide judgment and decree dated 22.2.1996 Hence, the present appeal by the defendants. The facts of the case, as noticed by the Additional District Judge in paras 3 to 7 of its judgment, read as under:- 3. Briefly stated the version of the plaintiff is that the house in dispute was purchased by the plaintiff from S/Shri Romesh Chand and Chattar Chand vide registered sale deed dated 26.2.1985 for consideration of ₹ 40,000/-; that the sale deed was executed benami in the name of defendants Nos. 1 and 2; that defendant No.1 is the son of the plaintiff, whereas defendant No.2 is the cousin of the wife of defendant No.1; that the entire sale consideration of ₹ 40,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed benami in favour of defendants Nos. 1 and 2. It is also admitted by him that defendant No.2 has illegally and without any right or title transferred share of the house in dispute to defendant No.3 vide registered sale deed dated 13.4.1987. He also admitted it to be correct that the plaintiff is the owner of the house in dispute as she had paid the entire sale consideration. 5.Defendant No.2 submitted his separate written statement wherein it is pleaded that a suit for declaration is not maintainable as the plaintiff is not in possession of the property in dispute. He further pleaded that the relief of injunction is not available to the plaintiff against the answering respondent as he has already executed the sale deed dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted his separate written statement and pleaded interalia that the present suit is not maintainable as the plaintiff is not in possession of any part of the suit property. He also pleaded that he is a bona fide purchaser for consideration and without notice; that he purchased the property from defendant No.2, who is the registered owner in the records of the Sub Registrar, Pathankot; that the plaintiff is estopped by her act and conduct from filing the suit; that defendant No.2 was the coowner to the extent of share and the sale has been effected by him legally and for consideration and that the plaintiff has got no locus standi to challenge the same; that the sale deed executed in favour of defendants Nos. 1 and 2 is not benami as allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff with costs. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiff is owner in possession of the house in dispute?OPP 2. Whether the sale deed dated 26.2.1985 is Benami and to what effect ?OPD 3. Whether the sale deed dated 13.4.87 is illegal and not binding on the plaintiff?OPP 4. Whether the plaintiff is in possession of the house in dispute and to what effect?OPP 5. If issue No.1 proved, whether the defendant No.3 is a bona fide purchaser and without consideration and without notice?OPD(3) 6. Whether this suit is not legally maintainable in the present form?OPD 7. Relief. Issue No.5, as mentioned above, was amended on 16.5.1991 which reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.3, purchased half share of the suit property from defendant No.2. The substantial question of law that arises in this case is `as to whether the learned Additional District Judge has misread the evidence on record while coming to the conclusion that the suit property was benami property of the plaintiff'. Admittedly, the sale deed dated 26.2.1985 (Exhibit D4/1) is in the name of defendants No.1 and 2. As per the said sale deed, Romesh Chand and Chattar Chand had sold the suit property to defendant Nos. 1 and 2. Jiwan Kumar sold his share out of the suit property vide Exhibit DA to defendant No3. Sampuran Singh. The case of the plaintiff is that, in fact, the suit property was owned by her as, admittedly, the amount of sale cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad informed defendant No.3 vide notice Exhibit P16 Under Postal Certificate (for short `UPC') Exhibit P17. However, there is nothing on record to suggest that defendant No.3 had, in fact, been served with the said notice. The UPC was dispatched on 8.4.1987 and the sale deed was executed on 13.4.1987 just after five days of the dispatch of the said UPC. But there is nothing on record to suggest that, in fact, notice had been delivered to defendant No.3 before the execution of the sale deed. Hence, the finding of the learned Additional District Judge to the effect that defendant No.3 was not a bona fide purchaser is based on misreading of evidence. In these circumstances, since the plaintiff has no concern with the suit property, her suit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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