Arvinder Pal Singh and Others vs Jagdish Singh and Another

Shiv Narayan Dhingra, J.—By this order, I shall dispose of an application under Order 7 Rule 11 of CPC preferred by defendants for dismissal of the suit on the ground that the suit was not maintainable in view of provisions of Section 4 of Benami Transaction Act.

A perusal of record would show that the plaintiff No. 1 has claimed that the defendant No. 2 was the younger brother of plaintiff No. 1. plaintiff purchased a piece of land measuring 167.226 sq meters bearing number B-4/182, Safdarjung Enclave in 1973 on perpetual lease-hold-basis from DDA. The perpetual lease was executed on 23rd July 1995 and the name of defendant No. 1 was introduced in the lease deed out of love and affection. (It is to be noted that defendant No. 1 is the father of plaintiff No. 1). It is submitted that all expenses of the properly like lease money, property tax etc were being paid by plaintiff No. 1 and electricity and water supply was also initially sanctioned in the name of plaintiff No. 1 and continued to be so for the entire property. The defendant No. 1 was not the sole owner of the property. However, he was at the most one of the co-owners of the property and this fact was fortified from the fact that defendant No. 1 granted absolute rights and title and interest in respect of second floor of the suit property to plaintiff No. 1 and executed a registered and irrevocable power of attorney dated 8th October 2004 in favour of plaintiff No. 1, in respect of second floor of the suit property and this power of attorney was registered with the Office of Sub Registrar concerned. The power of attorney authorized plaintiff No. 1 to have and/or hold the second floor of the property for all intents and purposes and to enjoy the same exclusively. The power of attorney was irrevocable and gave to plaintiff No. 1 the right to sell the said property to any third person and to receive consideration in lieu thereof. It is submitted that defendant No. 1 filed a suit being CS(OS) 234 of 2007 to challenge the right of plaintiff No. 1 and his family members and claimed himself to be the sole owner of the property. Defendant No. 1 also filed a suit for permanent injunction without impleading plaintiff on 26th August 2008 and plaintiff learnt about the pendency of that suit recently.

A decree for declaration is sought by the plaintiffs against defendants that the plaintiff No. 1 was the owner and in possession of the entire second floor of the property bearing No. B-4/182, Safdarjung Enclave, New Delhi. A prayer is also made for passing of a decree of partition of the suit property i.e. B-4/182, Safdarjung Enclave, New Delhi claiming himself to be one of the stake holder in the property and consequential relief of possession.

It is apparent from the record that plaintiff has not sought a declaration that he was the owner of entire property. He has sought a declaration in respect to second floor where he is residing with his family members and is in possession. It had been urged that he should be declared as an absolute owner on account of execution of certain documents by defendant No. 1 in his favour. The documents are in the nature of irrevocable power of attorney etc.

I consider that the suit cannot be dismissed outrightly under the provisions of Benami Transactions Act as the rights of the plaintiff are to be determined and adjudicated on the basis of documents executed by defendant No. 1 in favour of plaintiff No. 1. The case of defendants is that these documents have been revoked by defendant No. 1 and the suit was in fact for declaring plaintiff as a Benamidar owner of the portion of the property.

It is settled law that under Order 7 Rule 11 CPC, the averments made in the plaint are to be considered to see if the suit was barred by any Act or there was any law prohibiting filing of the suit. If the plaintiff had claimed a relief of declaration of the entire property belongs to him and defendant No. 1 was merely a Benamidar, the suit would have been barred by Benami Transaction Act. However, the plaintiffs have only claimed rights over second floor on the basis of documents executed by defendant No. 1 independent of the title of the property.

I, therefore, consider that the present suit cannot be thrown out on the ground of Benami Transaction Act. I find no force in the application. The application is hereby dismissed.

CS (OS) 1887 of 2008

List on 18th January 2010.