Back
2017 Supreme(P&H) 1483
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AVNEESH JHINGAN, J.
Birbal Ram - Appellant
Versus
Smt. Salochna Devi - Respondent
RSA No. 5053 of 2017 (O&M)
Decided On : 21-11-2017
Advocate Appeared:
For the Appellant : Mr. P.S. Jammu
IMPORTANT POINT
.
Headnote:(A) Specific Relief Act, 1963, S.34 – Suit for Possession – Revenue record – Rebuttable presumption – Rebuttable presumption is in favour of defendant and plaintiff failed rebut same as he himself admitted that revenue entries are in favour of defendant showing her as owner and in cultivating possession of suit land – Plaintiff has to establish his own case by substantiating claim made in suit and cannot rely upon weaknesses of evidence produced by defendant.
(B) Specific Relief Act, 1963, S.34 – Suit for Possession – Dismissal of Suit for declaration – Husband failed to prove that he spent entire amount from his own pocket for purchase of suit land – Bank manager shows joint bank account in name of husband and wife – Attesting witness to sale deed shows share of defendants paid to vendor by wife's family member in his presence – Further, claim of husband for purchase of suit land out of love & affection for wife not proved – Suit held to be rightly dismissed. (Paras 21 & 22)
(C) Benami Transactions (Prohibition) Act, 1988, S. 3 & 4 – Prohibition of Benami transaction – No suit, claim or action to enforce a right in respect of any property held benami shall lie against person in whose name property is held or against any other person at instance of a person claiming to be real owner of such property – Therefore, dismissal of suit for declaration is proper. (Para 26)
Avneesh Jhingan, J.
The present appeal has been filed at the behest of plaintiff being aggrieved of concurrent dismissal of his suit for declaration.
2. For convenience purposes the parties are being referred to as per their original position in the plaint.
3. The plaintiff filed a suit for declaration to the effect that he is owner in possession of the land detailed in the suit which fell in Khewat No. 77 Khatauni No. 155, 156 as per Jamabandi for the year 2007-2008. The suit property is situated in village Gusianana, Tehsil and District Sirsa. The revenue record shows the defendant to be the owner of the suit land on the basis of sale deed No. 1422 dated 23.03.1999. It was prayed that the said revenue entries are against law and facts and are liable to be corrected in favour of the plaintiff. Consequential relief for permanent injunction restraining the defendant from interfering into the possession of the plaintiff over the suit land was also prayed.
4. The facts as averred by the plaintiff are that the defendant was married to him on 21.03.1993 according to Hindu Rites and Ceremonies at village Deeplana, Rajasthan. After the marriage, out of their wedlock a male child namely 'Amit' was born on 24.12.2001. It was further averred that they were leading a happy matrimonial life and out of love and affection, plaintiff purchased the suit land in the name of the defendant through the registered sale deed No. 1422 dated 23.03.1999. The plaintiff spent the entire amount of sale consideration from his own pocket. The amount was withdrawn from the account of the plaintiff in Bank of Rajasthan. It was alleged that defendant never contributed any amount for purchase of the land. It was averred that the plaintiff is in cultivating possession of the suit land. Some dispute arose between the plaintiff and the defendant, their relations became strained. After purchasing the land in the name of the defendant she started misbehaving and was looking to a chance to pick up quarrel with the plaintiff. It was alleged that the defendant misappropriated the cash and gold ornaments belonging to the plaintiff. Defendant got registered FIR No.19 dated 1.2.2008 against the plaintiff and his family members. She also filed a petition under Section 13 of the Hindu Marriage Act and the same was decided in her favour on 27.03.2010. It was submitted that the defendant remarried and is residing with her 2nd husband. It was averred that the defendant has no right in the title or any interest in the property owned by the plaintiff. It was submitted that the sale deed No. 1422 dated 23.03.1999 in favour of the defendant was a paper transaction and the property was purchased out of love and affection in her favour. It was the case of the plaintiff that the revenue entires in favour of the defendant were wrong, against the law and liable to be corrected in favour of the plaintiff. On having a threat from the defendant to alienate/transfer the suit land the plaintiff had to file the suit.
5. On notice defendant appeared and filed written statement raising preliminary issues and the reply was also filed on merits. Replication was also filed by the plaintiff.
6. Learned trial court framed the following issues:
1. Whether the plaintiff is entitled for decree of declaration to the effect that the plaintiff is owner in possession of land to the extent of 844/3339 share out of total land measuring 169 kanals 19 marlas comprised in Khewat no.77 Khatuni No. 155, 156 as per jamabandi for the year 2007-08, alongwith consequential relief of permanent injunction as prayed for? OPP
2. Whether the revenue record showing the defendant to be owner of the suit land on the basis of sale deed No.1422 dated 23.3.1999 are wrong, against the law and facts and are liable to be corrected as prayed for? OPP
3. Whether suit of the plaintiff is not maintainable? OPD
4. Whether the plaintiff has no cause of action or no locus standi to file the present suit as prayed for? OPD
5. Whether the
