IMPORTANT POINTS
Provisions of Benami Transactions (Prohibition) Act, 1988 do not apply in cases of property held by a coparcener in HUF for benefit of other coparceners, or property held in fiduciary capacity or as a trustee for benefit of another person.
A person cannot claim title to the property which is a family property and wherein the never resided or held possession and enjoyment whereof; merely on ground of it being recorded in his name due to some family considerations.

ORDER :

1. Leave granted.

2. Heard learned counsel for the parties.

3. The defendant is in appeal aggrieved by the judgment and decree passed by the trial court, as affirmed by the High Court in first appeal and review applied had also been rejected by the High Court. The plaintiff-respondent, Dharampal Dhall (since deceased), filed a suit for restoration of possession, mesne profits and for a permanent injunction with respect to House No.ED-48, Tagore Garden, New Delhi.

4. The plaintiff – Dharampal Dhall came with a case that he acquired the leasehold rights on plot admeasuring 149.33 square yards under the perpetual lease deed granted by the President of India in his favour and registered on 31.01.1966. The plaintiff raised a construction over the plot and obtained the necessary sanction from the competent authority as per the site plan and got installed electricity, water, and sewerage connections in the premises. However, it was stated in the plaint itself that entire family started living in the said house. The marriage of plaintiff, as well as defendants and all sisters, were solemnized from the house in question. When the relationship of Defendant No.2-the sister of the plaintiff, became strained with her husband, she started living in the said house along with her daughter. Defendant No.1 for some time in 1971 had resided out of Delhi. Father of the parties – Kashmiri Lal Dhall died on 10.08.1980, leaving behind several properties at Delhi. Defendant No.1 started living separately with effect from the year 1986. He acquired a house at Moti Nagar, New Delhi, and one more residential accommodation, i.e., GH-1/318, Pashchim Vihar, New Delhi.

5. It was further averred in the plaint that the mother of the parties died in the premises in question in the year 1990. The house remained in the custody/ possession of the Defendant No.2. At the relevant point of time, the plaintiff was posted at Bombay. The house was furnished. Furniture of the plaintiff was still lying in the house. Plaintiff came back to Delhi in the year 1993. However, at the same time, Defendant No.2 was permitted to occupy the house. Later on, it was found that Defendant No.1 had also started living in the said house. The plaintiff asked defendants to vacate the premises. They did not do so. Though, Defendant No.2 had shifted residence in January 1995. Hence, the suit was filed, after serving notice dated 30.6.1995. Defendant No.1 was ousted from the house by the mother in the year 1986. Thus, he had no right in the house. The conduct of Defendant No.1 was not proper with the plaintiff.

6. In the written statement filed by Defendant No.1, it was contended that the suit was not properly valued. The defendant had been occupying the premises since the year 1966. The suit was barred by limitation and was not maintainable. The allotment of the plot was obtained initially in the name of Kumari Sneh Lata, who was the eldest child of late Kashmiri Lal Dhall. The father of the parties obtained it in the year 1963 from the Delhi Development Authority (DDA). The entire amount was paid by late Kashmiri Lal to the DDA. Subsequently, construction was raised in 1965-66 by Kashmiri Lal out of his own money. At that time. Plaintiff was only a student studying at IIT, Kharagpur, West Bengal. The possession of the defendant was in the capacity of the owner. The plaintiff had no source of income at the relevant point of time. No gift deed had been made by any person in plaintiff’s favour. They are four sisters and two brothers, left as legal representatives of late Shri Kashmiri Lal. The suit was bad for non-joinder of necessary parties. The plaintiff was, thus, not entitled to any relief.

7. The trial court had decreed the suit. The judgment and decree had been affirmed by the High Court. Aggrieved thereby, the appellant has come up in appeals.

8. We have heard learned counsel for the parties at length. It was submitted by Mr. Mahabir Singh, learned senior counsel appearing on behalf o